1. The petitioners of this petition have prayed for the appropriate direction to declare the decision of the respondent to consider the petitioners as holding 'transferable' post and thereby treating them as not eligible for the benefit of the Government Resolution, dated 29.03.2001, as arbitrary, irrational and discriminatory. It is also prayed by the petitioners that the respondents be directed to consider the petitioners as holding non- transferable posts and are entitled to get the benefit of the Government Resolution, dated 29.03.2001.
2. The short facts are that the petitioner are the employees of Technical Examination Board at Gandhinagar (hereinafter referred to as 'the Board', for the sake of convenience). As per the petitioners, they are working on the respective posts for about 12 to 35 years. It is the case of the petitioners that the State Government has formulated a policy of allotment of land to the employees, who are working at Gandhinagar, and who are non-transferable, and that the transferable employees shall not be entitled to get the benefit of the same. When the list was to be submitted by the Board to the authorities of the State Government, the Competent authorities of the Board decided to bifurcate all the employees of the Board into two categories, one is those, who are working at Gandhinagar, but, the corresponding posts are not available at Ahmedabad and the second is of the post of the officers and the staff working at Gandhinagar, but, the corresponding posts are available at Ahmedabad center. The Board decided to bifurcate the total staff into two categories for considering them as transferable and non- transferable, and thereafter, the list has been forwarded.
3. The petitioners' case is that they have been considered as transferable, and therefore, consequently their names are not included in the list of non-transferable staff. It is further the case of the petitioners that if they are treated as transferable, they would be deprived of benefit of Government Resolution for entitlement of allotment of plots at Gandhinagar. Under these circumstances, the petitioners have approached this Court by way of present petition, with the above referred prayers.
4. I have heard Mr. Girish Patel, learned Senior Counsel for the petitioners and Mr. H.K. Patel, learned AGP for the respondent-State.
5. It may be recorded that the stand of the respondent-Board, as stated in the affidavit-in- reply is at Para-5, the relevant portion of which reads as under, “5. ...
I say and submit that post which are sanction at Technical Examinations Board, Gandhinagar as well as L.R.D.C. Ahmedabad and C.D.C. Ahmedabad are show in the copy o schedule annexed hereto and marked as ANNEXURE-A to this affidavit in reply. I say and submit that looking to the schedule it is crystal clear that posts which are mentioned at Sr. No. 1, 2 and 3 of Administrative Officers of LRDC, Ahmedabad are having common cadre. Not only that the seniority amongst these employees is also maintained by way of common seniority, and therefore, looking to the common seniority and same pay and same scale, said posts are transferable amongst these offices. I further say and submit that so far as post mentioned at Sr. No.4, 5 and 6 are concerned, said posts are transferable after getting promotion. I further say and submit that so far as post mentioned at Sr. No.7 to 22 are concerned, same are having common cadre and scale and seniority amongst these employees is also maintained by way of common seniority. No only that these posts are also sanctioned at the office of L.R.D.C. Ahmedabad and C.D.C., Ahmedabad, and therefore, looking to the common cadre, seniority and scale, these post are transferable amongst these offices. I further say and submit that post of Nayak and Daftari-cum-Binder, are entitled for promotion in Clerk/Typist, and as the posts of clerk and typists are available at the offices of L.R.D.C. Ahmedabad and C.D.C.,and therefore, same are also liable to be transferred at these offices, in case of need arise. I say and submit so far as posts of Peon, Hamal and Chawkidar are concerned, these posts are available at the office of L.R.D.C. Ahmedabad and C.D.C. Ahmedabad and these posts are also having same cadre, same scale and common seniority, and therefore, also same are transferable. I say and submit that so far as posts mentioned at Sr. No.23 to 27 are concerned, these posts are not available at the office of L.R.D.C. Ahmedabad and C.D.C., Ahmedabad and therefore, same are not transferable. I further say and submit that strength of employees of posts mentioned at Sr. No.1 to 22 is only one or two at office of L.R.D.C. Ahmedabad and C.D.C. Ahmedabad, and therefore, looking to the strength of employees, it is not possible to give promotion to all the employees at the same time.”
6. Mr. Patel, learned Counsel for the petitioners raised a contention that the differentiate classifications of transferable and non-transferable is irrational and arbitrary and also unjust, inasmuch as the petitioners have worked at Gandhinagar for such a long time of 12-
35 years and they are actually not transferred, and therefore, they cannot be termed as transferable only because equivalent or the similar posts are available at the center in Ahmedabad. He submitted that the Board was principally at Gandhinagar and all the staff was working at Gandhinagar, but, later on because of the availability of the grant of the World Bank, two centers were opened and certain staff of the Board was transferred to Ahmedabad. He submitted that when the centers were opened those employees willingly agreed to work at Ahmedabad, because at the relevant point of time the policy was to allot the land to the employees at Ahmedabad. But, now, in view of the policy of 2001, it is only if a person is not-transferable, he would be entitled for allotment of the land at Gandhinagar. Therefore, such persons can be treated as non-transferable and they can also be considered as entitled for getting benefit of allotment of land, as per the Government Resolution, dated 29.03.2001. He submitted that if such interpretation may be made, since, it is a beneficial policy of the Government, and therefore, since policy being beneficial also for the petitioners it should be interpreted to mean that those employees who have not been transferred for a long time or rather who have worked at Gandhinagar for 12-35 years, should be considered as non-transferable and eligible. He submitted that, if, such an interpretation is not made by this Court, it can be said that the policy criteria for deciding the transferability is arbitrary and irrational. In the submission of Mr. Patel, the availability of equivalent post or the same post at the other center at Ahmedabad is not a valid ground to differentiate amongst the employees of the Board, who were appointed at Gandhinagar. He also submitted that the main office of the Board is at Gandhinagar and Ahmedabad is only a center, and therefore, the same should not be a ground for depriving the petitioners from the benefit of allotment of land to the petitioners, who are working at Gandhinagar. He submitted that, therefore, the action on the part of the Board is illegal and this Court may direct the respondents to consider the petitioners as eligible to apply for the allotment of land, as per the Government Resolution dated 27.12.2001.
7. Whereas, Mr. H.K. Patel, learned AGP, submitted that it is a policy decision of the Board and the rationale for the same is mentioned as stated in the affidavit-in-reply at Para-5. He also submitted that in the same manner on account of limited are of land available, the Government has passed the resolution, dated 27.12.2001 for the allotment of land only to those employees, who are non-transferable. He, therefore, submitted that when the policy decision is taken by the petitioner as well as by the State Government, this Court may not interfere with the policy decision of the Board or the State Government.
8. It is by now well-settled that even if any decision of the Government is pertaining to any policy matters, it has to meet with the test of Article-14 of the Constitution of India.
Therefore, the challenge cannot be denied on a mere ground that it is a policy of the Board or as that of the State Government and that this Court may not interfere with a policy decision. Therefore, the said contention of the learned AGP cannot be countenanced. Even a policy decision is to be taken, within the scope and ambit of Article-14 of the Constitution. There are two policy decisions, which arise for consideration, (1) Government Resolution dated 27.12.2001 passed by the State Government for entitlement for allotment of the land, but, the legality and the validity of the said resolution or the policy of the Government is not challenged, and therefore, no observation to be made for the same. The second policy decision is also not under challenge. But, rather the main basis of the petition is classification made by the Board amongst its employees by identifying the posts as transferable and non-transferable. It is by now well settled that when any classification is made by the State, the tendency or the approach of the Court would be to find out, whether it has any nexus to be achieved and whether it is on a rationale basis or not. If, it is a rational for a purpose to be achieved, the Court may not further examine the policy decision in a microscopic manner, by substituting its own wisdom in place of the policy maker, unless such a rationale has no nexus to be achieved or the same is absurd on the face of it.
9. Examining the facts of the present case, in my view, if the basis is taken by the Board for finding out transferability and non- transferability of any employee working on the post is that the availability of the equivalent or the same post at the other center, such cannot be said as arbitrary or irrational. When one has to find out the transferability or non- transferability of any post, the first question to be considered would be whether equivalent post or the same post is available at the place outside the Gandhinagar or not. Same is the rationale, which is also reflected by the stand of the Board as per the above referred Para-5 of the affidavit-in-reply. It is not a case where, a classification is made without there being any rationale. Further the difference of transferability and non-transferability was a must for classification of the employees for benefit of the Government Resolution, dated 17.12.2001, and therefore, it cannot be said that there was a purpose to be achieved.
number of posts are available there, is no ground to deprive the petitioners, who are working at Gandhinagar for a number of years and such would create unjust situation, and therefore, this Court may interfere.
11. As observed earlier, without any policy of the Government is under challenge, the judicial scrutiny would be limited to the observations made, hereinabove. The adverse effect of the policy in future is no ground to interfere with the policy, unless the Court finds that the policy is without there being any rationale or it has no nexus to be achieved. If the Government Board has classified on a rationale basis, merely because some employees would be rendered as ineligible for allotment of plot, in my view, cannot be considered has rendered the policy, as arbitrary. Further, the entitlement or the eligibility to apply for allotment of the land at Gandhinagar can hardly be considered as a valid ground to challenge the policy of the transferability or the classification for transferability and non- transferability. If any employee is working at Gandhinagar and is eligible to apply for allotment of plot, it is by way of coincidence and such cannot be ready or conjointly inserted in the conditions of service of any employee of the Board. Therefore, the contention that it would result into creating unjust situation, cannot be considered as a valid ground to upset the policy, as sought to be canvassed. More particularly, when this Court has found that it is on a rationale basis and such rationale has a nexus with a purpose to be achieved.
12. In view of the aforesaid, the petition is merit-less. Hence, the same is DISMISSED. Rule is discharged.
(JAYANT PATEL, J.) Umesh/