JUDGMENT:- (Per: M.G.Sewlikar, J.)
1. Rule. Rule made returnable forthwith.
2. Heard fnally with consent of the parties.
3. This is a petition seeking quashing of Government Resolution dated 27thFebruary, 2017 to the extent that it provides husband wife aggregation beneft only to those couples who are in Government and Semi Government service and not to those employees, whose spouse/s are engaged in private service or profession and also seeking direction that the beneft of Government Resolution dated 27thFebruary, 2017 be extended to the petitioner.
4. Factual matrix involved in this petition is that petitioner joined services with respondent No.4 as 'Shikshan Sevak' on 11th October, 2007, whereafter, she was posted at Pishor in Tahsil of Kannad, District Aurangabad. Petitioner was confrmed as Assistant Teacher on 16thOctober, 2010. After serving for four years at Pishor, petitioner was transferred to Ranjangaon (SP), Tq.Gangapur, District Aurangabad. Husband of petitioner is in a private profession at Aurangabad. Family of petitioner consists of her husband, her fve year old son and her in laws and all of them live at Aurangabad.
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5. It is the case of petitioner that in the transfer process of May, 2018, petitioner was placed in category 4. This is the category meant for junior most Teachers. Petitioner further submits that the Government by Resolution dated 27thFebruary, 2017 foated a scheme called 'Husband Wife Aggregation Policy' by which husband and wife can be posted within a distance of 30 kms. However, this scheme covers only Zilla Parishad employees, State Government employees, Central Government employees, employees in Autonomous Bodies, employees in Public Sector Undertakings or employees in Government Recognized Institutions. Spouses of Zilla Parishad employees, who are working in private profession or in private service are excluded from the purview of this resolution. It is alleged that this resolution is discriminatory as it has left out the spouses of Zilla Parishad employees, who are employed in private sector or engaged in a profession. This policy is arbitrary. It has created two classes (i) Zilla Parishad employees, whose better halves are in Central/State Government/Public Sector Undertakings/ Autonomous Bodies etc. (ii) Zilla Parishad employees, whose better halves are serving in private sector or engaged in a profession. Such classifcation is not based on any intelligible differentia and has no nexus with the object sought to be achieved. Therefore, this policy is arbitrary and violates the
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{4} WP 5894 OF 2018 principles of equality enshrined under Article 14 of the Constitution of India.
6. Petitioner, therefore, made an application making a request that beneft of 'Husband Wife Aggregation Policy' be extended to her for the reason set out in the application dated 25 thMay, 2018. According to the petitioner, the postings within 30 kms. distance from Aurangabad have been given to senior Teachers. Petitioner fgures at Sr.No.2968 in total strength of Teachers of 3137. Petitioner was transferred to Amkheda, Tq.Soygaon, Dist.Aurangabad. During the pendency of this petition, petitioner was transferred to Waluj, Tq.Gangapur, Dist.Aurangabad, which is 65 kms. From Aurangabad. She has, therefore, sought quashing of Government Resolution dated 27thFebruary, 2017 as discriminatory and impugned communications of transfers.
7. Respondent Nos.4 and 5 fled their afdavit in reply contending therein that Government Resolution dated 27th February, 2017 does not apply to petitioner. Vide Government Resolution dated 15thApril, 2017, it is provided that if any employee/teacher has any grievance against the orders of transfer or any other grievance, it should be agitated before respective Divisional Commissioner of the Revenue Division. Petitioner has not availed this alternative efcacious remedy and
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{5} WP 5894 OF 2018 for this reason also this petition is not maintainable. This resolution is not applicable to petitioner as her husband is a practicing Advocate in this Court.
8. Heard Shri D.R.Shelke, learned counsel for the petitioner and Smt.M.A.Deshpande, learned AGP for respondent Nos.1 to 3 State. Also heard Shri S.B.Gute Patil, learned counsel for respondent Nos.4 and 5.
9. Shri Shelke, learned counsel for the petitioner submitted that Government Resolution dated 27thFebruary, 2017 has made classifcation between employees viz. (i) Zilla Parishad employees, whose spouses are in service of Central/State Government, in Zilla Parishad, in Autonomous Bodies and in Government Recognized Institutions, and (ii) Zilla Parishad employees, whose spouses are in private service or engaged in any profession. There is no intelligible differentia for this classifcation. Zilla Parishad employees whose spouses are in Government service have been given beneft of this policy whereas Zilla Parishad employees, whose spouses are in private service or profession are excluded from the purview of Government Resolution dated 27thFebruary, 2017. There is no rational for denying beneft of 'Husband Wife Aggregation Policy' to the Zilla Parishad employees, whose spouses are engaged in
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{6} WP 5894 OF 2018 private service or in profession. He submitted that this classifcation has no nexus with the object sought to be achieved. This policy was implemented to enable husband and wife to enjoy family life and to enable them to take care of their children. He argued that employees covered in class (ii) are also entitled to have family life and are also required to take care of their children. There is no intelligible differentia for creating these two classes. This resolution is an arbitrary exercise of power and therefore, needs to be struck down. He argued that it is the fundamental right of the petitioner to choose a life partner. By inserting such a provision, the Government has made it clear that if any employee chooses a partner serving in private sector and not in the Government or Public Undertaking Sector, such employee would be subjected to discrimination; thus an unreasonable restriction has been placed. He placed reliance on the following authorities:
a) Shafn Jahan Vs. Ashokan K.M. & Ors. [AIR 2018 SC 1933].
b) Kathi Raning Rawat Vs. The State of Saurashtra [AIR 1952
SC 123].
c) AIR India Vs. Nergesh Meerza and Ors. [AIR 1981 SC 1829].
d) Rohit Manohar Joshi and Ors. Vs. Tree Authority and Ors. [MANU/MH/1111/2018].
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e) Public Service Commission, Uttaranchal Vs. Jagdish Chandra Singh Bora & Ors. [2014 (3) SCALE 380].
f) Kalpana Mehta and Ors. Vs. Union of India (UOI) and Ors.
[(2018) 7 SCC 1].
g) Minerva Mills Ltd. and Others Vs. Union of India and Others
[(1980) 3 SCC 625].
h) Sri Srinivasa Theatre and Others Vs. Government of Tamil Nadu and Others [(1992) 2 SCC 643].
i) Motor General Traders and Ors. Vs. State of Andhra Pradesh and Ors. [(1984) 1 SCC 222].
j) Indian Hotel and Restaurant Association (AHAR) and Ors. Vs. The State of Maharashtra and Ors. [2019 (1) SCALE 433].
10. Smt.Deshpande, learned AGP for the respondent Nos.1 to 3 submitted that nature of job of employees in private sector, their service conditions, rules and regulations are fundamentally different from the employees involved in the Government sector. She submitted that the Government has framed its policy keeping in view its employees. The Government cannot exercise any control over private sector. If contention of the petitioner is accepted, a fall out of it would be that petitioner will never be transferred outside Aurangabad as her husband is a practicing Advocate at Aurangabad. Spouse of any employee in private sector will not be during his or her life time be subjected to transfer beyond 30 kms. from Aurangabad having regard to
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{8} WP 5894 OF 2018 the fact that spouse of the Zilla Parishad employee is working in private sector. For this reason petitioner cannot be given the beneft of "Husband Wife Aggregation Policy". She has, therefore, prayed for dismissal of the petition.
11. It is well settled that Article 14 forbids class legislation. It however does not forbid reasonable classifcation for the purposes of the legislation. To pass the test of permissible classifcation, two conditions have to be satisfed viz. (i) that the classifcation must be founded on a intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. There has to be a nexus between the basis of classifcation and object of the Act.
12. In the case of Shafi Jahai Vs. Asokai K.M. aid Ors. [AIR 2018 SC 1933] it is held thus:
"The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable."
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13. In the case of Kathi Raiiig Rawat Vs. The State of Saurashtra [AIR 1952 SC 123] it has been held thus:
"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classifcation for the purposes of legislation. In order, however, to pass the test of permissible classifcation, two conditions must be fulflled, namely (i) that the classifcation must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classifcation and the object of the Act."
14. In the case of AIR Iidia Vs. Nergesh Meerza aid Ors. [AIR 1981 SC 1829] it has been held thus:
"27. In order to appreciate the arguments of the parties on this point it may be necessary to refer to the law on the subject which is now well settled by a long course of decisions of this Court. It is undisputed that what Article 14 prohibits is hostile discrimination and not reasonable classifcation. In other words, if equals and un-equals are differently tested, no discrimination at all occurs so as to amount to an infraction of Article 14 of the Constitution. A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attract the provisions of Article 14.
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28. In our opinion, therefore, the inescapable conclusion that follows is that if there are two separate and different classes having different conditions of service and different incidents, the question of discrimination does not arise. On the other hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Article 14 is doubtless attracted."
15. In the case of Rohit Maiohar Joshi aid Ors. Vs. Tree Authority aid Ors. [MANU/MH/1111/2018] it has been held that
"when a discretion is conferred on an authority which is absolute, uncontrolled and without any guidelines, the exercise of such powers can easily degenerate into arbitrariness".
16. In the case of Public Service Commissioi, Uttaraichal Vs. Jagdish Chaidra Siigh Bora aid Ors. [2014 (3) SCALE 380] it has been held that "sub-classifcation within the class would have no nexus with the object sought to be achieved and that to be a breach of Article 14 of the Constitution of India."
17. In the case of Kalpaia Mehta aid Ors. Vs. Uiioi of Iidia (UOI) aid Ors. [(2018) 7 SCC 1] it has been held as under:
"32. Recently, in Ceisus Commissioier aid ors. v. R. Krishiamurthy MANU/SC/0999/2014 : (2015) 2 SCC 796, the Court, after referring to Premium Graiites aid aiother
v. State of T.N. aid Ors. MANU/SC/0466/1994 : (1994) 2
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{11} WP 5894 OF 2018 SCC 691, M.P. Oil Extractioi aid aiother v. State of M.P. aid Ors. MANU/SC/1302/1997 : (1997) 7 SCC 592, State of Madhya Pradesh v. Narmada Bachao Aidolai aid Air.
MANU/SC/0599/2011 : (2011) 7 SCC 639 and State of Puijab aid others v. Ram Lubhaya Bagga aid Ors.
MANU/SC/0156/1998 : (1998) 4 SCC 117, held:
From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion."
18. In the case of Miierva Mills Ltd. Aid Others Vs. Uiioi of Iidia aid Others [(1980) 3 SCC 625] it has been held that
"Directive Principles of State Policy cannot have precedence over the fundamental rights and both need to construe harmoniously."
19. In the case of Sri Sriiivasa Theatre aid Others Vs. Goverimeit of Tamil Nadu aid Others [(1992) 2 SCC 643] it has been held that "Equality before law is a dynamic concept having many facets. One facet - the most commonly
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{12} WP 5894 OF 2018 acknowledged is that there shall be no previleged person or class and that none shall be above law. A facet which is of immediate relevance herein is the obligation upon the State to bring about, through the machinery of law, a more equal society envisaged by the Preamble and Part IV of our Constitution."
20. In the case of Motor Geieral Traders aid Ors. Vs. State of Aidhra Pradesh aid Ors. [(1984) 1 SCC 222] it has been held that "what was once a non-discriminatory piece of legislation may in course of time become discriminatory and be exposed to a successful challenge on the ground that it violated Article 14 of the Constitution".
21. In the case of Iidiai Hotel aid Restaurait Associatioi (AHAR) aid Ors. Vs. The State of Maharashtra aid Ors. [2019
(1) SCALE 433] it has been held that "the provision that is arbitrary and irrational which had no nexus with the purpose to achieve is unconstitutional and needs to be struck down."
22. On these settled principles, it will have to be seen whether Government Resolution dated 27thFebruary, 2017 creates or results in discrimination.
23. Relevant portion of the said resolution is extracted below for the facility of reference:
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{13} WP 5894 OF 2018 ß¼9½ fo'ks"k laoxZ f'k{kd Hkkx&2 irh&iRuh ,df=dj.k ¼tj l/;k nks?kkPa ;k fu;qDrhps fBdk.k ,desdkaiklwu 30fd-eh- i{s kk tkLr vra jkoj vlY;kl R;akuk fo'ks"k loa xZ f'k{kdkapk ntkZ izkIr gksbyZ ½
v½ irh iRuh nk?s ksgh ftYgk ifj"kn deZpkjh vlrhy rj] c½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk jkT; 'kkldh; deZpkjh vlys rj]
d½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk dasnz 'kkldh; deZpkjh vlys rj]
M½ irh iRuh nks?kkia Sdh ,d ftYgk ifj"kn deZpkjh o nlq jk jkT; 'kklukP;k Lok;Rr lLa Fkspk deZpkjh vlsy rj] mnk- egkuxjikfydk@uxjikfydk] b½ irh iRuh nk?s kkaidS h ,d ftYgk ifj"kn deZpkjh o nqljk jkT; vFkok dsanz 'kklukP;k lkoZtfud midzekrhy deZpkjh]
bZ½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk 'kklu ekU;rk izkIr laLFksrhy deZpkjh vlsy rj]Þ
24. This resolution states that husband and wife are entitled to aggregation i.e. they should be posted within a radius of 30 kms from each other provided (a) both husband and wife are Zilla Parishad employees (b) one of the spouses is a Zilla Parishad employee and the other one is a State Government employee (c) one of the spouses is a Zilla Parishad employee and the other one is a Central Government employee (d) one of the spouses is a Zilla Parishad employee and the other one is an employee of Autonomous Bodies such as Corporation/Municipality (e) one of the spouses is a Zilla Parishad employee and the other one is an
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{14} WP 5894 OF 2018 employee of the State or Central Government Public Sector Undertakings (f) one of the spouses is a Zilla Parishad employee and the other one is an employee of any Government Recognized Institution.
25. Admittedly, petitioner is an employee of Zilla Parishad, Aurangabad. She is an Assistant Teacher in a School in Zilla Parishad, Aurangabad. Petitioner has no where made it clear as to which profession her husband practices at Aurangabad. In the afdavit in reply of respondent Nos.4 and 5, it is stated that husband of petitioner is a practicing Advocate in this Court. This fact has not been denied by fling rejoinder afdavit. Infact petitioner has annexed Identity Card of her husband which shows that her husband is a practicing Advocate.
26. Extract of Government Resolution dated 27thFebruary, 2017 which is germane for this petition has been mentioned above. It indicates that employees working in private sector or engaged in profession are not covered by this resolution. In short, this resolution does not extend the beneft to employees in private sector or persons engaged in profession.
27. From the Government Resolution dated 27thFebruary, 2017 it is evident that the Government has framed norms for the
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{15} WP 5894 OF 2018 transfer of its employees over whom it has control. The Government can exercise control over the employees working in various organs of the Government. This cannot be said about private sector and those under self employment. Private sector has its own rules and regulations, has its own rules of recruitment and therefore, the Government cannot exercise any control over private sector. Private sector or self employed are a class by themselves. Government policies in regard to its employees cannot be implemented in private sector. In the case at hand, beneft of couple convenience is extended by the Government to Zilla Parishad employees, whose spouses are working in the Government sector or the organs of the Government sector. By its peculiar nature, such policy cannot be implemented in private sector. Both sectors are fundamentally different in nature of work, nature of duties, rules and regulations. Service conditions of private sector are different. In some private companies, job is non-transferable whereas in some private companies, job is transferable and some times transfers are effected outside the State of Maharashtra. In such a situation, if job of a person working in private company is non- transferable, in no case his spouse working in Zilla Parishad would be transferred outside the District headquarter, in the case at hand, outside Aurangabad. The policy of the Government
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{16} WP 5894 OF 2018 shows that a couple can be adjusted within a distance of 30 kms. It is not necessary that it should be within a radius of 30 kms. from the district place. Only condition is that they should be accommodated within a distance of 30 kms. In a case where the spouse of the Zilla Parishad employee working in private sector is transferred outside Maharashtra, such a policy cannot be implemented and it is unlikely for the Zilla Parishad to transfer him/her to the place of the spouse outside Maharashtra. Therefore, there are two separate and different classes having different conditions of services and incidents. As such, Zilla Parishad employees having a spouse working in private sector or in private profession forms a different class having different conditions of service and different incidents. Had there been discrimination between the same class, Article 14 could have been invoked. But in the case at hand, both the classes are different and mutually exclusive.
28. In the case of AIR Iidia Vs. Nergesh Meerza aid Ors.
(supra) it has been held that if there are two separate and different classes having different conditions of service and different incidents, the question of discrimination does not arise. In the case at hand also the conditions of service and incidents in private sector are fundamentally different from the Government sector. Therefore, it cannot be said that there is discrimination.
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29. Executive has the power to frame policy. Only rider is that it should stand the test of reasonableness. Court would not direct the Executive to formulate a policy just because it thinks that some other policy would be a better one. The scope of judicial review would be in limited campus. For the reasons discussed above, the impugned policy does not sound to be arbitrary, unreasonable or irrational.
30. In view of the discussions made above, we do not fnd that the policy is arbitrary, unreasonable or irrational. Therefore, for the reasons set out herein above, we fnd no substance in the petition.
31. Hence, writ petition stands dismissed. Rule stands discharged. No cost.
( M.G.SEWLIKAR ) ( UJJAL BHUYAN )
JUDGE JUDGE
SPT
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