Mukesh Kumar Goswami and Others vs State of Chhattisgarh and Others

S.R. Nayak, C.J.—This writ petition is filed by as many as 19 persons who are said to be Assistant Teachers serving in Government schools. In this writ petition, they have sought for mandamus to declare the Transfer Rationalisation Policy, marked as Annexure P-2 as ultra vires the Constitution. Furthermore, the petitioners have sought for quashing of the transfer order, marked as Annexure P-3, dated 6-7-2006 whereunder the petitioners have been transferred from the present places of service to various places where there are shortages for teachers or vacancies exist. A copy of the impugned policy is annexed to the writ petition as Annexure P-2 at Pages 72 to 82 of the material papers.

While attacking the validity of the impugned policy, Shri V.G. Tamaskar, learned Counsel for the petitioners would contend that the direction in the policy to conduct counselling to ascertain the willingness/preferences of the teachers is arbitrary and unreasonable. He would submit that the provision to conduct counselling has created a fertile grazing ground to unscrupulous and corrupt officials in the Education Department to feed on innocent teachers and harass them. He would also submit that there is full scope for the Transferring Authorities to misuse and abuse the power conferred on them under the policy. Shri V.G. Tamaskar would next contend that the provision in the impugned policy that only the relatively junior teachers should be transferred is also totally arbitrary, unreasonable, discriminatory and violative of Article 14 of the Constitution. These are the only two grounds urged by the learned Counsel for the petitioners while assailing the validity of the impugned policy.

The power of review under Article 226 of the Constitution to review a policy decision of the State is very much circumscribed and limited by a catena of decisions of the Apex Court and the High Courts. The wisdom behind the policy decision of the State which is evolved to achieve certain goals which are not obnoxious to the Constitution or law cannot lightly be interfered with by the reviewing Court. As the Courts repeatedly held, the Courts will not normally interfere with the policy decisions of the Government, and Government authorities; the Courts must exercise power of judicial review with circumspection. The wisdom in a policy decision of the Government or statutory authorities, as such, is not justiciable unless such policy decision is capricious, arbitrary, whimsical so as to offend Article 14 of the Constitution or any statutory or constitutional provision. The only thing to be seen by the Court when a policy decision is assailed is whether the policy in question is arbitrary or violative of any mandatory provisions of law. In Tata Iron and Steel Co. Ltd. etc. Vs. Union of India and others and Industrial Development Corporation of Orissa Ltd., , it was held that unless policy decision is inconsistent with the Constitution or any law, Court must exercise jurisdiction with circumspection, particularly, when the issues are intertwined with policy decision and technical issues. In M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, , the Apex Court held that the Court does not possess the expertise required to determine the matter, and the determination has been made by experts appointed by the Government. In Sher Singh and Others Vs. Union of India (UOI) and Others, , the Court opined that there shall be no judicial review if the policy decision is neither unfair nor mala fide. In Assam Madhyamik Sikshak Aru Karmachari Santha, Nagaon Vs. State of Assam and others, , the Court has opined that a policy decision shall not be normally questioned in a Court of law and the Court cannot find fault with discrimination based on policy.

Nevertheless, it is settled position that even a policy decision is liable to be struck down by the Court under Article 226 of the Constitution if the Court finds that the impugned policy decision of the State is totally arbitrary, unreasonable, discriminatory or violative of any of the provisions of the Constitution or that of any public law statute.

Keeping in mind the above noted well-settled principles and parameters of judicial review, let us proceed to consider the points urged by Shri V.G. Tamaskar, learned Counsel for the petitioners. We are at a loss to understand how the impugned policy insofar as it provides for conducting counselling in order to know the preference of the teachers who are likely or liable to be transferred to different places where vacancies or shortage for teachers exist would be condemned as arbitrary, unreasonable or discriminatory. On the other hand, it is our considered opinion that the said provision is very much in consonance with the role of the modern State which has changed from patriarchal role to matriarchal role. That is why modern States are called welfare States. If the government think that before transferring teachers from the present places of working to other places it would be appropriate to know the choice of such teachers and accordingly it makes a provision to conduct counselling to know the teachers'' preferences, such a healthy measure provided by the State in the policy decision could not be condemned as arbitrary or unreasonable. Therefore, that part of the argument of the learned Counsel for the petitioners is meritless and liable to be rejected in limine.

The second contention with regard to the provision in the impugned policy to retain the senior teachers at the present places and transferring the relatively junior teachers to other places where there is shortage for teachers or where vacancies exist is also devoid of merit. What Article 14 of the Constitution prohibits is class legislation and not reasonable classification. If the State takes care to reasonably classify the persons for treatment and if it deals equally with all persons belonging to a ''well defined class'', it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons. The classification of teachers into senior teachers and junior teachers for the purpose of transfer is founded on intelligible differentia which distinguishes the persons that are put together from that of others left out of the group. Be that as it may, as already stated (supra), it is not for the Court to question the wisdom of the policy decision of the State unless it is shown that the policy decision of the State suffers from vice of invidious discrimination or arbitrariness and is otherwise violative of any of the provisions of the Constitution or public law statutes. The Government having regard to the age and convenience of the teachers has allowed the senior teachers and the teachers who have only short lime to retire from service to continue in the present places keeping in mind their welfare and comfort and decided to transfer relatively younger generation of the teachers who are capable of shouldering hardship and inconveniencies arising out of their transfers, to serve in different places. The classification of the teachers into seniors and juniors made by the State for the purpose of transfer is undeniably founded on a rational consideration and is intended to achieve a social objective, and therefore, such a provision cannot be condemned as arbitrary or discriminatory. Thus, the second contention raised by learned Counsel for the petitioners also fails.

In the result and for the foregoing reasons, we dismiss the writ petition, however, with no order as to costs.