07 May 2121

If the classes are different then the question of discrimination under article 14 of the Constitution does not arise - Bombay High Court

Case : Rekha v. State of Maharashtra & Ors. Writ Petition No. 5894 of 2018

Court : Bombay High Court

Bench : Justice M. G. Sewlikar and Justice Ujjal Bhuyan

Decided on : 07 May 2121

Relevant Statutes

Article 14 of the Constitution of India.

Brief Facts and Procedural History

1. The facts of the case start from the time when the petitioner joined Shikshan Sevak On 11th October 2007 again and was confirmed as an assistant teacher in the year 2010 after serving for four years at Pishor was transferred to Aurangabad. Husband of additional was in the private profession at Aurangabad.

2. The issue in the petition was that in the transfer process of the year 2018, the petitioner was placed in category 4 which is for junior most teachers and the government scheme called “Husband Wife Aggregation Policy” by which husband and wife can be posted within a residence of 30 kilometres which includes Zila Parishad, state and central government employees including employees in government recognized institution but the spouses of Zila Parishad employees who are working in private profession are excluded from the purview of this resolution.

3. Thus, it is alleged that resolution is discriminatory and the policy is arbitrary which has created two classes,

a. Zila Parishad employees whose better halves are in central or state government

b. Zila Parishan employees whose better halves are serving in the private sector

4. And alleges that this classification is not based on any intelligible differential and has no access with the objects or to be achieved by the resolution and therefore the policy is in violation of article 14 of the constitution of India.

The Issue of the Case

Whether the resolution passed by Government dated 27th February 2017 has a reasonable classification or the classification is on the basis of class?

The Observations of the Court

1. The Honourable Bombay High Court after listening to counsels from both sides in length started its observation with Article 14 of the Constitution and noted down that it is well settled that Article 14 forwards class legislation but does not forward reasonable classification and for passing this test of reasonable classification two conditions need to be satisfied:

a. That the classification must be founded on intelligible differentia.

b. And that differential must have a rational Nexus to the object which is the sort to be achieved.

2. And code by looking into the case of Shafin Jahan v. Asokan KM and Ors., AIR 2018 SC 1933, noted down that right to marry a person of one’s choice is integral to article 21 and this cannot be taken away except by Due Procedure Established by Law and further referred to the judgment of Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123, Air India v. Nargesh Meerza and Ors., AIR 1981 SC 1829, Rohit Manohar Joshi and Ors. V. Tree Authority and Ors., MANU/MH/1111/2018, Public Service Commission, Uttaranchal v. Jagdish Chandra Singh Bora and Ors., 2014 (3) SCALE 380, wherein court, again and again, reiterated that article 14 forbids class legislation but does not forbid reasonable classification and if power is conferred on authority which is absolute then exercise of such power can easily lead to arbitrariness and also noted down that sub-classification within a class would be considered as no nexus with the object sought to be achieved.

3. The Honourable Bombay High referred to the judgment of Minerva Mills V. Union of India and Ors., (1980) 3 SCC 625, Sri Srinivasa Theatre and Ors. V. Government of Tamil Nadu and Ors., (1992) 2 SCC 643, Indian Hotel and Restaurant Association and Ors. V. The State of Maharashtra and Ors., 2019 (1) SCALE 433, where again the court has made it clear that non-discriminatory piece of legislation can also become discriminatory and when any provision which is arbitrary and irrational that had no nexus with the object then it is to be considered as unconstitutional and liable to be struck down.

4. The Honourable Bombay High Court once again looked into the government resolution and pointed out that the government has framed rules for the transfer of those employees who are working under the control of the government and this control cannot be exercised in the private sector and those who are under self-employment as they have their own rules and regulations and private sector is a class within themselves.

5. Government policies with regards to his employees cannot be extended to the employees of private sector and therefore in the present case benefit of couple convenience is extended to Zila Parishad employees whose spouses are also in the government sector. In the private sector, transfer basically depends on the type of job, some jobs are non-transferable and in that case, has a spouse who is working in Zila Parishad would be transferred outside the district headquarters and in this case, the couple can be adjusted within a distance of 30 kilometres and it is not necessary that it should be within a radius of 30 kilometres from the district place and also if the spouse of the Zila Parishad employees working in the private sector is transferred outside Maharashtra then in such case policy cannot be implemented as it will be unlikely for Zila Parishad to transfer him to a place outside Maharashtra.

6. Therefore, there are two separate and different classes having the different conditions of services and incidents and therefore if there would have been found that the discrimination is between the same class then article 14 could have been invoked but in the present case both the classes are different and mutually exclusive and finally, the Honourable Bombay High Court referred to AIR India v. Nargesh Meerza and Ors, AIR 1981 SC 1829, where in Supreme Court has clearly pointed out that if there are two separate and distinct classes having different conditions of services then the question of discrimination does not arise.

7. Therefore, The Honourable Bombay High Court finally came to the conclusion that policy is not arbitrary.

The Decision Held by the Court

1. Government Resolution date 27th February 2017 is under the vires of Article 14 of the Constitution.

2. Petition has no substance and is dismissed.

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