The Bombay High Court has stayed a government resolution (GR) of September on transfer of school teachers, observing that courts can interfere when a policy is “discriminatory, arbitrary and unreasonable”.
A division bench of Justices B R Gavai and S K Shinde was hearing a bunch of petitions challenging the government resolution, dated September 12, 2017.
According to the petitions, the September GR was contrary to a resolution of February 27 by which the Maharashtra government laid out an elaborate policy for transfer of teachers working in schools run by zilla parishads.
The petitions claimed that the September resolution gives power to the authorities to arbitrarily select teachers for transfer.
It was argued that the February resolution was upheld by both the Aurangabad and Bombay benches of the high court and the government was asked to implement the same with immediate effect.
The bench, after hearing arguments, recently accepted the petitioner’s contentions and said when the courts have upheld the February resolution and also directed the state government to proceed further with the implementation of the resolution; the government ought not to have come up with the impugned resolution of September.
“No doubt that there are inherent limitations on our jurisdiction while entertaining challenge to policy decisions of the government. Normally, this court would be very slow in interfering with policy of the state. We are aware that matters pertaining to policy decisions are best left to the discretion of the state,” the court said.
“However, that does not mean that this court is totally powerless in interfering in matters pertaining to policy decisions. When a policy is found to be arbitrary, discriminatory and unreasonable, this court can very well interfere with the same,” the court said.
The court further observed that the GR of September carves out various classes and enables authorities to mete out discriminatory treatment.
“Whereas the government resolution dated February 27, 2017 provided equitable treatment to all the employees of a particular class and hence prima facie we find the impugned government resolution dated September 12, 2017 to be violative of Article 14 of the Constitution of India,” the court said.
The high court then granted a stay on the September GR, but made it clear that the government was free to go ahead with the implementation of the February resolution.
The government had told the court that it could not implement the February resolution due to pendency of various petitions challenging the same and hence, it issued a fresh resolution in September.
“We are of the prima facie view that when the government resolution of February 2017 has been upheld by the high court by way of two separate orders, there was no occasion for the state government to have come up with a fresh resolution,” the high court observed.