THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT PETITION No.2675 of 2023
ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Prabhakar Chikkudu, learned counsel for
the petitioners and Mr. A.Sanjeev Kumar, learned Special
Government Pleader attached to the Office of learned
Additional Advocate General appearing for the
respondents.
2. By filing this petition under Article 226 of the Constitution of India, petitioners have prayed for the following relief:
For the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon'ble High Court may be pleased to issue writ, order or direction, more particularly one in the nature of writ of mandamus, declaring the action of the respondents in issuing impugned G.O.Ms.No.03, School Education (Ser.II) Department, dated 23.01.2023, G.O.Ms.No.05, School Education (Ser.II) Department, dated 25.01.2023 and Telangana School Educational Service Rules for the posts of Head Masters, Grade-II (Gazetted) in Zilla 2 Parishad Schools in Telangana vide its and issued guidelines vide its Proceedings Rc.No.565/Trans/Ser.IV- 2/2022, dated:26.01.2023 by non-considering the promotions of the petitioners from School Assistants to Panel Grade Head Masters - Grade - II and Secondary Grade Teachers (SGT) to School Assistants is an ultravires, illegal, ex-facie, arbitrary, discriminatory, unjust, unfair, whims and fancies and irrational, unreasonable, unlawful, unconstitutional and in violation of principles of natural justice and also in violation of Articles 14, 16, 21 and 309 of the Constitution of India and against to the Catena of Judgments of an Apex Court and this Hon'ble Court and set aside the same and consequently direct the respondents not to implement the impugned Service Rules, 2023 till disposal of the W.P.No.16255 of 2022, which are pending before learned Single Judge and pass such other order or orders as this Hon'ble High Court may deem fit and proper in the circumstances of the case.
3. From a perusal of the above, it is seen that petitioners have questioned the constitutionality of G.O.Ms.No.03 dated 23.01.2023, G.O.Ms.No.05 dated 25.01.2023 and the proceedings dated 26.01.2023. The challenge has been made on the ground that the said government orders and the proceedings were issued without considering promotion avenues of the petitioners 3 from School Assistants to Panel Grade Head Masters - Grade II and from Secondary Grade Teachers to School Assistants.
4. Be it stated that petitioners are either School Assistants or Secondary Grade Teachers serving in various schools in the State of Telangana.
5. By G.O.Ms.No.03, dated 23.01.2023, issued by the Secretary to the Government of Telangana, School Education (Ser.II) Department, Rule 8 of the Rules for the posts of Head Masters Grade - II (Gazetted) in Zilla Parishad Schools in Telangana State issued in G.O.Ms.No.10, School Education (Ser.II) Department, dated 23.01.2009 has been amended. The said amendment has been carried out in exercise of powers conferred by Sections 78 and 99 of the Telangana Education Act, 1982, and under the proviso to Article 309 of the Constitution of India. In existing Rule 8 it was provided that for the purpose of appointment, seniority, discharge for want of vacancy, transfer and reappointment, the unit of appointment would be the revenue district concerned 4 except Hyderabad. Following the amendment, Rule 8 now reads as follows:
8. For the purpose of appointment, seniority, discharge for want of vacancy, transfer and reappointment the unit of appointment shall be as specified in the table.
Multi Zone-I - Regional Joint Director of School Education, Warangal Comprising of Kumurambheem - Asifabad, Mancherial, Peddapalli, Jayashankar-Bhupalpalli, Mulugu, Adilabad, Nirmal, Nizamabad, Jagitial, Karimnagar, Rajanna-Sircilla, Siddipet, Medak, Kamareddy, Bhadradri-Kothagudem, Khammam, Mahabubabad, Warangal Rural, Hanumakonda Districts.
Multi Zone-II - Regional Joint Director of School Education, Hyderabad Comprising of Suryapet, Nalgonda, Yadadri-Bhongir, Janagoan, Medchal-Malkajgiri, Hyderabad, Ranga Reddy, Sangareddy, Vikarabad, Mahabubnagar, Narayanpet, Jogulamba-Gadwal, Wanaparthy, Nagarkurnool districts.
6. As per the amended Rule 8, for the purpose of appointment, seniority, discharge for want of vacancy, transfer and reappointment the unit of appointment shall be as specified in the table. Thus, instead of revenue 5 district, the unit of appointment has been classified as Multi Zone-I and Multi Zone-II, both zones comprising different districts; the authority for Multi Zone - I being Regional Joint Director of School Education, Warangal, and the authority for Multi Zone - II being Regional Joint Director of School Education, Hyderabad.
7. Government of Telangana in the School Education (Ser.II) Department has also issued G.O.Ms.No.05, dated 25.01.2023, making the Telangana Teachers (Regulation of Transfers) Rules, 2023. The above rules have been framed in exercise of powers conferred by Sections 78 and 99 of the Telangana Education Act, 1982, and under the proviso to Article 309 of the Constitution of India.
8. A perusal of the above rules would go to show that the said rules have been framed to regulate transfer of Head Masters/Head Mistresses - Grade II (Gazetted), School Assistants/Secondary Grade Teachers and other equivalent categories working in Government/Zilla Parishad/MPP Schools in the State of Telangana. 6
9. From a careful reading of both G.O.Ms.No.03 and G.O.Ms.No.05 we are at a loss to understand as to how the above two government orders can be said to have put a spanner in the promotional aspirations of the petitioners. We had tried to understand the apprehension of the petitioners by carefully analysing the averments made in the writ affidavit. The only averment made in support of the contention that the two government orders are unconstitutional can be seen in paragraphs 8 and 9 of the writ affidavit, which are as follows:
8. I further submit that except mutual transfers took place and not given service protection to the petitioners and the remaining all grounds i.e., spouse, widow, medical grounds, etc. were given service protection and allowed the above said guidelines for promotion from Secondary Grade Teacher to School Assistant and School Assistant to Panel Grade Head Master, Grade-II is amounts to an ex-facie, illegal, arbitrary, discriminatory, unlawful and unconstitutional and in violation of Articles 14, 16 and 21 of the Constitution of India. The equal protection of law cannot be denied to the petitioners and Articles 13(2) of Constitution of India has categorically stated that any legislation or any proceedings of the State or its instrumentalities cannot be denied equal right and the same has upheld by an Apex Court in a Catena of Constitutional Bench Judgments including in the case 7 of Kunnathat Thatunni Moopil Nair V/s. State of Kerala & Another (CB), which is reported in AIR 1961 SC 552, is squarely applicable for this case.
9. I further submit that the policy decision has taken by the State Government by the above said impugned proceedings are not valid in the eye of law and the same are amounts to unreasonable, unfair and unconstitutional and the every policy must be tested in reasonableness, but the impugned policy of the State Government, which are under challenge not valid in the eye of law and the same has stated by an Apex Court in a Catena of Judgments including in the case of Brij Mohan Lal V/s. Union of India, which is reported in (2012) 6 SCC 502 that the Larger Bench has stated in its Judgment at Para No.72 that, "72. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it and being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic Constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
8
(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of malafide, unreasonableness, arbitrariness or unfairness etc. (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or Legislations.
(VI) If the delegate has acted beyond its power of delegation."
which is squarely applicable for this case.
10. We are afraid, averments made in the two paragraphs extracted above do not make out any cogent ground to assail constitutionality of the two statutory rules. When this was pointed out to learned counsel for the petitioners, 9 he has referred to paragraph 10 of the writ affidavit, which reads as follows:
10. The petitioners crave leave of this Hon'ble Court to urge other grounds at the time of hearing.
11. We are afraid, on non-existent grounds we cannot entertain a challenge to constitutionality of two statutory rules. That apart, from the prayer portion itself we find that there is already a challenge to the above two government orders in W.P.No.16255 of 2022. An interim prayer has been made that till disposal of the said writ petition, the two service rules should not be given effect to. We are afraid, such a contention is clearly untenable. Petitioners in W.P.No.16255 of 2022 can very well seek such a relief in the said writ proceedings.
12. That being the position and in the absence of any pleadings to substantiate the challenge to constitutionality of the two sets of rules, we are not inclined to entertain the writ petition. However, we express no opinion on merit.
13. Consequently, writ petition is dismissed. 10
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ N. TUKARAMJI, J 14.02.2023 vs