Thottempudi Siva Jyothi vs The State Of Andhra Pradesh
2021 Latest Caselaw 792 AP

      THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

 WRIT PETITION Nos.21482 OF 2020, 1393 and 1492 OF 2021
                          AND
WRIT PETITION NOs.1510, 1282, 1461, 1543, 1583, 1573, 1318,
             2099, 2279, 2900, 2692 OF 2021

COMMON ORDER:

        Writ Petition Nos. 21482 of 2020, 1393 and 1492 of 2021

 are filed under Article 226 of the Constitution of India for issue of

 Writ of Mandamus to declare the action of the respondents for non-

inclusion of the vacancies filled in the promoted places for general

transfers of teachers in all the schools as illegal, irregular,

arbitrary and unjust; consequently direct the respondents to

include all the vacancies in all the stations for general transfer of

teachers including the vacancies in which promotes were posted, in

effecting transfers through the Transfer Schedule issued vide

proceedings in Rc.No.13029/11/2020-EST 3-CSE, dated

02.11.2020.

Whereas, the relief claimed in Writ Petition Nos.1510, 1282,

1461, 1543, 1583, 1573, 1318, 2099, 2279, 2900, 2692 of 2021 is

totally contrary to the relief claimed in other writ petitions Nos.

21482 of 2020, 1393 and 1492 of 2021. In Writ Petition 1510 of

2021 and batch, the petitioners claimed writ of Mandamus to declare

the action of respondent No.2 in issuing proceedings

R.C.No.13029/61/2020-EST 3 dated 08.01.2021 and consequential

proceedings issued in R.C.No.13029/11/2020-EST 3 dated

14.01.2021 as illegal, arbitrary, contrary to settled law and

G.O.Ms.No.54 dated 12.10.2020 and violative of Article 14, 16 and

21 of the Constitution of India, and set aside the same with a further MSM,J WP No.21482 of 2020 and batch

direction not to show the promoted places of the petitioners in the

ensuing transfer counselling.

The relief claimed in Writ Petition Nos. 21482 of 2020, 1393

and 1492 of 2021 is one and the same, whereas the relief claimed in

writ petition Nos.1510, 1282, 1461, 1543, 1583, 1573, 1318, 2099,

2279, 2900, 2692 of 2021 is almost opposing the claim in the other

three writ petitions. Therefore, the petitioners in writ petition

Nos.21482 of 2020, 1393 and 1492 of 2021 as one batch claiming

one relief and the petitioners in writ petition Nos.1510, 1282, 1461,

1543, 1583, 1573, 1318, 2099, 2279, 2900, 2692 of 2021 are

opposing their claim as the proceedings in the impugned writ

petition No.1510 of 2021 and batch were issued in pursuance of the

interim order issued by this Court in Writ Petition No.21482 of

2020.

In view of the identity of the issue, W.P.No.21482 of 2020 is

taken as leading case for deciding the real controversy between the

parties. The factual matrix is as follows:

All the petitioners herein are teachers, who are appointed as

Language Pandit (Hindi and Telugu) and subsequently promoted as

School Assistants (Hindi as well as Telugu) on 19.02.2017 and

working as such. While so, after completion of the promotion

counselling scheduled on 19.02.017, the department has taken up

the transfer counselling scheduled on 01.08.2017, in the said

counselling the places where the petitioners and others are working

were shown as vacant. In view of the availability of the vacancies,

the petitioners and others have participated in the transfer

counselling and posted at respective places.

MSM,J WP No.21482 of 2020 and batch

As per G.O.Ms.No. 15 Education (SE-Ser.II) Department dated

26.01.2009, respondent No.1 has issued a notification in exercise of

the powers conferred by section 78 and 99 of A.P. Education Act,

1982 and under Article 309 of Constitution of India by framing

certain Rules for promotion. As per Rule 2, the appointing authority

shall draw panels of eligible School Assistants for appointment by

transfer to the post of Head Master Grade-II and the list of SGTs

and equivalent categories for promotion to the post of School

Assistants and equivalent categories every year duly assessing the

vacancies of the respective categories from 1st September to 31st

August of succeeding year, arising due to retirement, promotion etc.

1st September of the year reckoned as qualifying date to determine

the eligibility of the candidates. Rule 13 deals with criteria for

transfer, it discloses that the completion of 8 years service shall

be counted for the service rendered in a school prior and after

upgradation in respect of upgraded and bifurcated schools. By

following the said GO Ms No. 15 dated 26.01.2009, the education

department has taken up number of transfers/promotion

counselling from time to time. In each and every time, at first

instance, the department has taken up the promotion counselling

schedule and after completing the said process of promotions, then

they have started transfer counselling by notifying all the vacancies

including vacancies filled in the promotion counselling within one

year. The same procedure is being adopted by the department by

framing rules under certain G.Os.

The Government issued G.O.Ms.No.144 Finance (HR.II)

Department dated 02.08.2016, accorded sanction for upgradation of MSM,J WP No.21482 of 2020 and batch

1450 Language Pandits-Grade II and 1200 Posts of Physical

Education Teachers working in Zilla Parishad/Government High

Schools as School Assistant. After issuance of said GO Ms No. 144

dated 02.08.2016, respondent No.1 has framed certain guidelines

for teachers transfers vide G.O.Ms.No. 32 dated 04.06.2017. Rule

13 (1) (g) of G.O.Ms.32 School Education (Ser.II) department dated

04.06.2017 discloses as follows:

"Upgraded posts of School Assistants (Language and physical Education) as per GO Ms No. 144, Finance Department, Dated 02.08.2016 and also posts of Gr-II Head Master due to filling up of MEO posts in the State on ad-hoc basis shall be treated as vacancies. The effected persons (excluding promotees) should participate in the transfers counselling with entitlement points applicable to their previous stations. Those who got adhoc promotions shall attend regular promotion counselling after completion of transfer counselling process"

In view of GO Ms No. 144 dated 02.08.2016, respondent No.2

herein has communicated the list of posts upgraded in the cadres

of L.P. (Telugu), L.P. (Hindi), P.E.T.s instructed to fill the

upgraded vacancies by way of promotions vide proceedings dated

11.01.2017, 21.01.2017, 14.02.2017 and 18.02.2017. In

pursuance of the said proceedings, the District Educational Officers

in the State have issued promotions by way of transfer through

counselling vide proceedings R.C.No.9237/A1/2011 dated

19.02.2017. The petitioners and others got promotion on

19.02.2017 and posted at different places. Subsequently, after

working for a period of 6 months, the District Educational

Officers in the State have taken up the transfer counselling for

teachers, 2017 on 01.08.2017. In the said transfer counselling, the

petitioners were transferred within a period of six months from the

date of posting in a promotion post. In the said process, number of MSM,J WP No.21482 of 2020 and batch

Teachers who got promotion on 19.02.2017 were transferred

from their respective places, where they were posted during

promotion counselling to the present place of working.

Respondent No.1 has issued GO Ms No. 77 dated 30.10.2019

and accorded sanction to fill up the upgraded posts of Language

Pandits and Physical Education Teachers working in MPUP

Schools/ Zilla Parishad/Government High Schools within the

parent management. In pursuance of the said GO Ms No 77, the

District Educational Officers in the State have issued appointments

by temporary promotion through counselling to fill-up the upgraded

posts of Language Pandits and Physical Education Teachers working

in MPUP Schools/Zilla Parishad/Government High Schools vide

Proceedings R.C.No. 3046/B1/2019 dated 01.11.2019. As per the

earlier procedure adopted by the department, now all the vacancies

occupied by promotees have to be notified as vacant in the present

transfer counselling schedule issued by respondent No.2 through

the proceedings in Rc.No.13029/11/2020-EST3-CSE,dated

02.11.2020 as per G.O.Ms.No.S3,School Education (Services-II)

Department and G.O.Ms.No.S4,School Education (Services-II)

Department, dated 12.10.2020 for rationalization and transfer of

teachers working in Government ZPP/MPP Schools.

In the month of November, 2019, all the DEOs in the State

have issued temporary promotions by way of counselling on adhoc

basis, in the said proceedings it has specifically mentioned that the

place of posting and promotion issued is purely temporary. By

mere reading of the said proceedings, it clearly discloses that all

the promotion vacancies which were filled up within one year have MSM,J WP No.21482 of 2020 and batch

to be shown as vacancies in the ensuing transfer counselling.

Respondent No.2 has issued proceedings RC No. 882/(D1-4)/Estt.

IV/2011-3 dated 18.02.2017 certain instructions to all the DEOs in

the State. In the said instructions, it is specified that at para 5,

"He/She shall not claim for continuation in the promoted post as

all such posts shall be made available for the general transfer

counselling to be taken up in 2017". Apart from the above, it is

necessary and relevant to submit here that in the recent

proceedings dated 14.10.2020 issued by respondent No.2 also, it

clearly states that the promoted candidate should opt the place in

the left over vacancy in the promoted place after general transfer

through Web counselling. Therefore, in view of the orders issued

by the District Educational Officer, the promotion is only for

temporary period and it is only on adhoc basis. But, in the present

proceedings, G.O.Ms.Nos.53 and 54 dated 12.10.2020, there are no

guidelines to notify those vacancies occupied by promoted teachers

and on account of such failure of the Government to issue such

instructions to notify the vacancies which were already filled-up,

the petitioners are losing their chance to opt for posting at the

places where the promoted teachers are posted. Therefore, the

scope of options became limited and thereby, the petitioners are

losing their right to exercise options to work in a particular school

and it amounts to violation of fundamental right guaranteed under

Article 14 of the Constitution of India, as the mid-way promotions

of the panel year created such chaos and therefore, requested to

issue a direction as stated above.

Implead petitioners and the State filed separate counters. The MSM,J WP No.21482 of 2020 and batch

allegations made in the counters are identical.

The respondents denied the allegations made in the petition

interalia contending that as per G.O.Ms.No.80, Finance (SMPC)

Department dated 02.03.2009 Government have accorded sanction

for up-gradation of 1500 language Pandit posts as School Assistant

(Languages) and 500 (Physical Education) in success schools in the

state by suppressing 102 secondary Grade Teacher (SGT) posts.

Subsequently, the respondents vide e-office file No.10093/SE-Ser-

II/Al/2012, dated 7.4.2016 sent proposals to the Government

requesting for up-gradation of teachers 1200 posts of Physical

Education Teachers as School Assistants along with Language

pandit posts. Considering the proposals submitted by this

answering respondent Government have accorded sanction for up-

gradation of posts vide G.O.Ms.No.144 Finance (HR-II) Department

dated 02.08.2016 without executive instructions. The said

Government Order was communicated to respondent No.2 vide

Memo No.10093/Ser.II/A.1/2012 dated 25.10.2016.

Prior to issuance of G.O.Ms.No.73, government have taken

up promotions strictly in accordance with the norms mentioned

in G.O.Ms.No.11 and 12 School Education (Ser.II) Department dated

23.01.2009 in accordance with Rule 3 (iii) of G.O.Ms.No.108

Education dated 23.12.1999. Thereafter, Government issued

G.O.Ms.No.73 school Education (Services-II) Department dated

08.11.2018 to fill up all the upgraded posts sanctioned in G.O.Ms.

No.144 by way of promotions from the respective feeder categories

in relaxation of Rule 3(iii) of G.O.Ms.No.11, School Education MSM,J WP No.21482 of 2020 and batch

(Ser.II) Department dated 23.1.2009 in respect of Government

schools and in relaxation of Rule 3 (iii) of G.O.Ms.No.12, School

Education (Ser.II) Department dated 23.1.2009 in respect of Mandal

Parishad and Zilla Parishad Schools, as onetime measure.

Government vide G.O.Ms.No.144 Finance (HR.II) Dept., dated

02.08.2016 upgraded 1200 posts in the state. Accordingly, in

pursuance of said Government Order, respondent No.2 issued

proceedings vide Rc.No.882/(Dl-4)/Estt.IV/2011, dated 11.01.2017

by communicating the upgraded list to all the District Educational

Officers and requested to take necessary action as per rules.

Subsequently, in pursuance of Go.Ms.No.15 dated 05.02.2017

instructions were issued that, Secondary Grade Teachers are not

eligible for promotion to the Post of School Assistants (Telugu and

Hindi). Accordingly, seniority list of Language Pandits was prepared

for promotion to the post of School Assistant (Telugu and Hindi).

As per G.0.Ms.No.11 School Education (Ser.II) Department dated

23.01.2009, 70% upgraded Language Pandit Grade II and PETs were

promoted as School Assistants by way of promotion counselling.

While so, some of the SGTs approached the Andhra Pradesh

Administrative Tribunal vide O.A.No.317 of 2017 to consider their

cases for promotion as per the pre-amended Rule, for those

vacancies, which arose prior to the amendment, i.e., G.O.Ms.No.15

dated 05.02.2017 and the Andhra Pradesh Administrative Tribunal

vide its orders dated 10.02.2017 allowed the said O.A.

Challenging the order dated 10.02.2017 made in O.A.No.317 of 2017

some of the effected parties approached this Court vide

W.P.No.23283 of 2017 and this Court vide its orders dated MSM,J WP No.21482 of 2020 and batch

29.1l.2017, confirmed the orders of the Andhra Pradesh

Administrative Tribunal and directed to consider the SGTs for

vacancies arose prior to the issuance of the GOs, but not inclined

to set aside the GOs.

When the Andhra Pradesh Administrative Tribunal granted

relief to notify all the vacancies though they were occupied

by promotion of juniors to the applicants in Original applications

before it, the Division bench of High Court in W.P.No.31598 of 2011,

1394, 1818 and 5173 of 2012 was pleased to set aside the orders

of the Andhra Pradesh Administrative Tribunal, wherein the

similar issue is challenged before the High Court in the present

case on hand.

It is further contended that all the vacancies which were

created under G.O.Ms.No.144, Finance Department dated

02.08.16 and consequential G.O.Ms.No.91, school education

department dated 17.12.2018 were not available and some of them

were occupied by the eligible candidates by virtue of their seniority

and eligibility criteria and hence cannot be included in the transfer

counselling now scheduled to be conducted as it amounts to acting

contrary to the guidelines/rules framed from time to time. It is

further contended that, if option is given to the petitioners to

choose the places where the juniors are presently working for

effecting their transfers, that amounts to not only violation of the

rule which provides for the transfer of a candidate after completing

two years of tenure at a place on his application, but also

infringement of the rights of the juniors ensured under the rule

to continue to work at their present places of work subject to MSM,J WP No.21482 of 2020 and batch

the limitations provided. Therefore apparently there is no

illegality or any discrimination in framing transfer guidelines dated

12.10.2020 excluding the places occupied by the juniors for the

ensuing counselling to be done for the benefit of the petitioners.

It is further contended that the guidelines were issued by

virtue of statutory powers conferred on the government under

Section 78 and 99 of the A.P. Education Act, 1982 read with Article

309 of the Constitution of India. If the contents of the said

Government Order are taken as it is, the question of inclusion of

those posts occupied by promotees cannot be included. Therefore,

the request of the petitioners cannot be considered.

It is further contended that the transfer guidelines issued vide

G.O.Ms.No.32 dated 04.06.2017 at point No.13 i.e. under head of

Notification of vacancies at (g) point it is mentioned as follows:

"(g) upgraded posts of school assistant (Languages and physical education) as per G.O.Ms.No.144, Finance Department, dated 02.08.2016 and also posts of Gr.ll Head Master due to filling up of MEO posts in the state on adhoc basis shall be treated a vacancies. The effected persons (Excluding promotes) should participate in the transfers counselling with entitlement points applicable to their previous stations. Those who got adhoc promotions shall attend regular promotion counselling after completion of transfer counselling process.

This itself shows it was specified to included those teachers

who comes under the said category. Whereas in the present

Government Order this respondent have not specified to notify the

posts which were already filled by way of promotion through

up-gradation as vacancy. Thus, the guidelines issued by the

Government for transfer in 2017 and 2019 are totally different. It is

brought to the notice of this Court, that the Apex Court in "Rajendra MSM,J WP No.21482 of 2020 and batch

Singh v. State of Uttar Pradesh1" held that the that the transfer of

an employee is not only an incident inherent in the terms of

appointment but also implicit as an essential condition of service, in

the absence of any specific indication to the contra, in the law

governing or conditions of service. Unless the order of transfer is

shown to be an outcome of a mala fide exercise of power or violative

of any statutory provision or passed by an authority not competent

to do so, an order of transfer cannot lightly be interfered with as a

matter of course or routine for any or every type of grievance sought

to be made. However, aggrieved by the orders of transfer, the

employees concerned may approach the higher authorities

concerned to make necessary modifications.

When guidelines are framed for transfers in exercise of

statutory power, a direction cannot be issued to include those

vacancies unless the guidelines issued vide G.O.Ms.No.54 dated

12.10.2020 are challenged. Consequently, the relief claimed by the

petitioner is misconceived, requested to dismiss the petition.

Implead petitioners filed a separate counter in W.P.No.21482 of

2020 in the same lines denying the material allegations, raising

identical pleas raised by respondent No.2 and drawn the attention of

this Court to several judgments including the judgment of the

Division Bench of this Writ Petition No.31598 of 2011, 1394, 1818

and 5173 of 2012 dated 05.06.2012 and the judgment of the learned

Single Judge of this Court in W.P.Nos.20043 of 2020 and 20149 of

2020 dated 16.12.2020. On the basis of these two judgments, the

respondents sought to vacate the interim order granted by this Court

in W.P.No.21482 of 2020.

(2009) 15 SCC 178 MSM,J WP No.21482 of 2020 and batch

During hearing, learned counsel for the petitioners in

W.P.No.21482 of 2020 and batch contended that on account of

failure of the respondents to include the vacancies filled with

promotees temporarily, the petitioners are deprived of their choice to

opt the places of importance, whereas the juniors are enjoying the

places of their choice due to posting them on promotion in terms of

G.O.Ms.No.144 Finance (HR.II) Department dated 02.08.2016.

Therefore, such act of the respondents depriving the petitioners to

have wider option is nothing but arbitrary exercise of power by the

respondents, thereby it is discriminatory. Apart from that in

W.P.No.21482 of 2020, learned counsel contended that postings were

given to the promotees purely on temporary basis and after

completion of two years of service in the promoted post, they are

entitled for request transfers. Apart from that, when the promotees

were posted on promotion temporarily both in the station and

promoted post, they are disentitled to claim any privilege in the writ

petition to continue in the same post, and the attention of this Court

is drawn to the proceedings of the Commissioner of School

Education, Andhra Pradesh, Amaravathi in RC No. 882/(D1-4)/Estt.

IV/2011-3 dated 18.02.2017, whereunder certain guidelines were

fixed for promotion, transfers and posting in terms of G.O.Ms.No.144

Finance (HR.II) Department dated 02.08.2016. As per clause (5) of

proceedings of the Commissioner of School Education, Andhra

Pradesh, Amaravathi, he/she shall not claim for continuation in the

promoted post as all such post shall be made available for the general

transfers counselling to be taken up in 2017 as per the orders to be

communicated by the Government. At the same time, in the MSM,J WP No.21482 of 2020 and batch

proceedings of the District Educational Officer, Guntur in

R.C.No.9237/A1/2011 dated 19.02.2017 it is made clear in condition

No.1 that the present place of posting is purely adhoc and subject to

review at any time. Taking advantage of these clauses, learned

counsel would contend that when the appointment was given subject

to inclusion of those vacancies in the general transfers vide

proceedings dated 18.02.2017, the posts filed with promotees in

terms of G.O.Ms.No.144 Finance (HR.II) Department dated

02.08.2016 shall also be included in the present counselling. It is

also brought to the notice of this Court that G.O.Ms.No.32 School

Education (Ser.II) Department dated 04.06.2017 to contend that a

specific mode of notification is prescribed for transfers counselling in

clause 13 and it is inclusive of posts filled with promotees as on date.

But contrary to the said Government Orders, the present impugned

proceedings were issued depriving the petitioners, except the

petitioners in W.P. Nos.1510, 1282, 1461, 1543, 1583, 1573, 1318,

2099, 2279, 2900, 2692 of 2021, from enjoying the option to choose

suitable vacancies for their posting. It is also contended that even in

the proceedings of the District Educational Officer, SPSR Nellore

District vide Rc.No.6865/B4/2019 dated 11.11.2019 promoting

several physical education teachers to the post of school assistants

(physical education), a specific mention is made in clause (a) that "the

place of posting and promotion now issued is purely temporary and

subject to review at future date and subject to outcome of pending

court cases in the Hon'ble Supreme Court of India, Hon'ble High

Court of Andhra Pradesh and Hon'ble Andhra Pradesh Administrative

Tribunal, Hyderabad and in any other Court of law." The same MSM,J WP No.21482 of 2020 and batch

condition is incorporated even in the proceedings of the Director of

School Education, Andhra Pradesh, in Rc.No.13029/11/2020 EST 3

dated 14.10.2020 giving option to opt the places in left over vacancies

in the promoted post after General transfers through web

counselling.

Based on these two proceedings also, learned counsel for the

petitioners contended that the vacancies filled with promotees in

pursuance of G.O.Ms.No.144 Finance (HR.II) Department dated

02.08.2016 shall also be included in the transfers counselling vide

G.O.Ms.No.54 School Edn (Services.II) Department dated 12.10.2020

and non-inclusion of those vacancies cause much prejudice to the

petitioners on account of limited vacancies available for counselling

in 2020, requested to issue a direction.

Sri Vijaya Kumar, learned counsel appearing on behalf of

K.Raghavendra Venkatesh in W.P.No.1510 of 2021 and batch

contended that the issue is already covered by the Judgment of

Division Bench of the High Court of Andhra Pradesh in

W.P.No.31598 of 2011, 1394, 1818 and 5173 of 2012, so also the

judgment of the learned single Judge of this Court in W.P.Nos.20043

and 20149 of 2020 dated 16.12.2020. Even otherwise, none of the

petitioners claimed writ of Mandamus to set aside the G.O.Ms.No.54

School Edn (Services.II) Department dated 12.10.2020 and without

setting aside the said Government orders, this Court cannot issue

additional guideline for transfers counselling of 2020 for inclusion of

vacancies filled with promotees in pursuance of G.O.Ms.No.144

Finance (HR.II) Department dated 02.08.2016, since, it is the duty of

the state to take care of it, thereby unless the Government Order is MSM,J WP No.21482 of 2020 and batch

set aside on the ground of alleged discrimination or arbitrariness, the

Court cannot interfere with the transfer counselling of teachers in

pursuance of G.O.Ms.No.53 School Education (SER.II) Department

dated 12.10.2020 and G.O.Ms.No.54 School Edn (Services.II)

Department dated 12.10.2020. Therefore, the proceedings issued by

the Director of School Education Andhra Pradesh, Amaravati vide

Rc.No.13029/G1/2020-EST 3 dated 08.01.2021 is a consequence of

mistake committed by the learned single Judge while passing an

order on 24.11.2020 in W.P.No.21482 of 2020. When once the Court

refused to issue such direction, the impugned proceedings are

automatically liable to be set aside, requested to dismiss all other

Writ Petition Nos.21482 of 2020, 1393 of 2021 and 1492 of 2021.

Sri K.Bheema Rao, learned Government Pleader for Services-III

supported the contention of the petitioners in W.P.No.1510 of 2021

and batch while questioning the entitlement of the petitioners in

other writ petitions to claim relief in those matters as the issue is

squarely covered by the judgment of the Division Bench of the High

Court in Writ Petition No.31598 of 2011, 1394, 1818 and 5173 of

2012, learned Single Judge of this Court in W.P.Nos.20043 of 2020

and 20149 of 2020 dated 16.12.2020.

Sri C.Raghu, learned counsel for the implead petitioners also

supported the case of the writ petitioners in W.P.No.1510 of 2021

and batch while disputing the claim in other writ petition Nos.21482

of 2020, 1393 and 1492 of 2021.

Considering rival contentions, perusing the material available

on record, the points that arose for consideration are:

(1) Whether the petitioners in W.P.No.21482 of 2020, 1393 and 1492 of 2021, except the petitioners in MSM,J WP No.21482 of 2020 and batch

W.P.No.1510 of 2021 and batch are entitled to a direction to include the vacancies filled with promotees as per G.O.Ms.No.144 Finance (HR.II) Department dated 02.08.2016 in addition to guidelines issued as per G.O.Ms.No.54 School Edn (Services.II) Department dated 12.10.2020? (2) Whether the petitioners in W.P.No.21482 of 2020, 1393 and 1492 of 2021 except the petitioners in W.P.No.1510 of 2021 and batch are deprived of their right to opt various places in the transfer counselling due to failure to include the vacancies filled with promotees in pursuance of G.O.Ms.No.144 Finance (HR.II) Department dated 02.08.2016? If so, Whether this Court can issue such direction to the respondents to include vacancies filled with promotees?

P O I N T No.1:

In all writ petition Nos.21482 of 2020 and batch, the writ

petitioners claimed limited relief to include the vacancies filled with

promotees in pursuance of G.O.Ms.No.144 Finance (HR.II)

Department dated 02.08.2016 in transfer counselling in view of

G.O.Ms.No.32 School Education (Ser.II) Department dated

04.06.2017. However, in the earlier round of litigation in 2011,

covered by the judgment of the Division Bench in W.P.No.31598 of

2011 and batch, similar direction was sought for by the teachers

filing O.A.No.4356 of 2011 and batch before the Andhra Pradesh

Administrative Tribunal. The Tribunal was pleased to accept the

contention of teachers and directed to include those vacancies filled

with promotees, but the same was challenged by the State, filing

writ petition No.31598 of 2011 and batch. The Division Bench by

order dated 05.06.2012 allowed the writ petitions setting aside the MSM,J WP No.21482 of 2020 and batch

order passed by the Andhra Pradesh Administrative Tribunal while

permitting the State to proceed with the transfer counselling as per

the guidelines existing as on that date. Hence, earlier practice of

inclusion of those guidelines as per clause 13 of G.O.Ms.No.32

School Education (Ser.II) Department dated 04.06.2017 is of no

assistance to the petitioner. As per clause 13 (1) (g) of G.O.Ms.No.32

School Education (Ser.II) Department dated 04.06.2017 "upgraded

posts of School Assistants (Language and physical Education) as

per GO Ms No. 144, Finance Department, Dated 02.08.2016 and

also posts of Gr-II Head Master due to filling up of MEO posts in

the State on ad-hoc basis shall be treated as vacancies. The effected

persons (excluding promotees) should participate in the transfers

counselling with entitlement points applicable to their previous

stations. Those who got adhoc promotions shall attend regular

promotion counselling after completion of transfer counselling

process".

Merely because there was a practice to include those vacancies

in the transfer counselling issued by the Government, in the absence

of similar guideline in the present G.O.Ms.No.54 School Edn

(Services.II) Department dated 12.10.2020, the Court cannot issue

such direction unless the Government Order itself is questioned on

the ground of discrimination, arbitrariness.

Scope of interference with the decision taken by the

Government is limited under Article 226 of the Constitution of India.

The power of judicial review under Article 226 of the Constitution of

India is not directed against the decision but is confined to the

decision making process. Judicial review is not an appeal from a MSM,J WP No.21482 of 2020 and batch

decision but a review of the manner in which the decision is made.

The Courts sits in judgment only on the correctness of the decision

making process and not on the correctness of the decision itself (Vide:

H.B.Gandhi v. Gopinath2" "Style (Dress Land) v. Union Territory,

Chandigarh3")

Though the powers of the High Courts under Article 226 are

discretionary and no limits can be placed upon that discretion, it

must be exercised along recognised lines and not arbitrarily and

subject to certain self-imposed limitations. They are as follows:

(i) In the exercise of this discretionary jurisdiction, the High Courts should not act as courts of appeal or revision to correct mere errors of law or of fact, because this jurisdiction is merely supervisory.

(ii) Resort to the jurisdiction under Article 226 is not intended as an alternative remedy for relief which may be obtained by suit, or other mode prescribed by statute. Where it is open to the aggrieved person to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided in a statute, the High Court will not, by entertaining a petition under Article 226 of the Constitution of India, permit the machinery created by the statute to be by-passed. In a case involving retrenchment, instead of resorting to statutory remedy writ petition was filed on the ground that a particular provision was not complied with and the High Court dismissed the petition on the ground that the said provision was not attracted in the case. In appeal it was contended that High Court erred in recording its finding regarding the provision as a result of which he would be prejudiced before the tribunal where the statutory remedy was available, it was held that as the contention was raised regarding the compliance of that provision, the High Court was justified in examining its application.

(iii) The High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The matters of large canvas could not be determined

(1992) Supp (2) SCC 312

(1999) 7 SCC 89 MSM,J WP No.21482 of 2020 and batch

under this Article. In such cases a civil suit is a remedy." The High Court cannot reappreciate the evidence to hold otherwise than has been held by the Govt. regarding the sufficiency of a certificate to claim pension under Freedom Fighters' Pension Scheme. In an objective type of examination, the inference of the High Court that the questions concerned were of confusing and controversial nature without appointing an expert body and obtaining its opinion, was held to be unjustified.

(iv) The Court would not interfere (on the merits) with determinations made by an authority invested with statutory power, particularly, when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention e.g. -

(a) the determination is mala fide, or

(b) prompted by extraneous considerations, or

(c) made in contravention of the principles of natural justice, or

(d) any constitutional provision."

Such matters, e.g., are-

(1) Equation of posts for the purpose of integration of services, (2) Formulation of correct criteria for the classification of or qualification for posts.

               (3)     Framing rules of seniority.
      (v)      The High Court while examining the correctness or otherwise of

an order passed by a tribunal or any action taken by an officer under an Act, is also to be guided by the provisions of the statute.

(vi) The power of High Court and Arts. 226 and 227 cannot be invoked to direct the statutory authorities to act contrary to law.

(vii) The High Court must balance the competing interests.

(viii) The court cannot sit as a court of appeal and substitute its own decision. The Court confines itself to the question of legality and is concerned only with (i) whether the e decision- making authority exceeded its powers; (ii) committed an error of law; (iii) committed a breach of the rules of natural justice;

(iv) reached an unreasonable decision; or (V) abused its powers.

In view of the guidelines extracted above, the High Court must

act within the paramaters and cannot examine the validity of the

orders passed by the Government except when those orders are MSM,J WP No.21482 of 2020 and batch

challenged on the ground of violation of statutory rules or provisions

or in violation of principles of natural justice, orders passed in

arbitrary exercise of power and contrary to any of the constitutional

provisions. Therefore, in view of the self imposed restrictions, though

the Court is entitled to test the validity of order on the above grounds,

such discretion must be exercised within the self imposed limitations.

In the present facts, the petitioners did not challenge the

process of issuing Government Order fixing transfer guidelines for

teachers for the year 2020. Hence, this Court is not required to

examine the process of making order.

In all these writ petitions, none of the petitioners questioned

the Government Order on any of the grounds available, more

particularly, the grounds referred in the above paragraphs. Hence,

this Court need not examine the legality of the Government Order

and guidelines framed thereunder on the touchstone of arbitrariness

or violation of statutory or constitutional provisions.

When the State issued an order i.e. G.O.Ms.No.54 School Edn

(Services.II) Department dated 12.10.2020 fixing guidelines for

transfer of teachers, transfers shall be affected within the guidelines

framed by the State. Now, the petitioners are claiming directions

against the respondents to include the vacancies that are filled with

promotees in pursuance of G.O.Ms.No.144 Finance (HR.II)

Department dated 02.08.2016 in the similar lines of G.O.Ms.No.32

School Education (Ser.II) Department dated 04.06.2017. Since the

power of this Court is limited, this Court cannot issue a direction to

include those vacancies in the absence of any guidelines prescribed

by the Government for the reason that this Court cannot supplement MSM,J WP No.21482 of 2020 and batch

or add additional guideline on any ground and it is the duty of the

State. Therefore, in the absence of challenging the Government Order

on any of the available grounds, this Court cannot exercise such

power to issue a direction to include the vacancies filled with

promotees in pursuance of G.O.Ms.No.144 Finance (HR.II)

Department dated 02.08.2016 since such interference would amount

to intrusion in the power of the State.

In Writ Petition No.31598 of 2011 and batch, the Division

Bench of High Court of Andhra Pradesh at Hyderabad considered the

injustice likely to be caused on account of non-inclusion of those

vacancies available to the teachers due for transfer after completion

of specified period, but, still, declined to issue such direction as it

amounts to interference with administrative functions of State

indirectly.

Hence, a direction by way of writ of Mandamus sought for by

the petitioners cannot be issued while exercising discretionary

jurisdiction under Article 226 of the Constitution of India until the

Government Order is set aside or cancelled. Accordingly, the point is

answered.

P O I N T No.2:

The main contention of the petitioners, who are due for transfer

and likely to participate in the transfer counselling and the

petitioners, who exercised the right to make a request transfer is that

non-inclusion of those vacancies filled with promoted teachers in

pursuance of G.O.Ms.No.144 Finance (HR.II) Department dated

02.08.2016, creates limitations on their choice. If those vacancies are

included in the transfer counselling, their choice is wide and subject MSM,J WP No.21482 of 2020 and batch

to their convenience they can opt the station. But on account of non-

inclusion, they are deprived of their right to choose station of their

choice; consequently the act of the State is illegal and arbitrary.

Whereas, respondents contended that in the absence of any

specific guidelines in the transfer guidelines issued in G.O.Ms.No.54

School Edn (Services.II) Department dated 12.10.2020, this Court

cannot issue such direction and notification of available vacancies for

transfer counselling is totally in consonance with the guidelines

issued in G.O.Ms.No.54 School Edn (Services.II) Department dated

12.10.2020.

In view of these rival contentions, it is appropriate to examine

the procedure prescribed in G.O.Ms.No.54 School Edn (Services.II)

Department dated 12.10.2020 for transfer of the teachers. This Court

is concerned only with the publication/notification of vacancies and

seniority list. Clause 11 specifies the vacancies to be notified and it

reads as follows:

11. Notification of vacancies:

(i) The following vacancies shall be notified for the purpose

of counselling:

(a) All clear vacancies.

(b) All the vacancies arising due to compulsory transfers

as per guideline 2.

(c) Resultant vacancies arising during counselling.

(d) Vacancies existing due to authorised / unauthorized

absence of teachers for more than 1 year.

(e) Leave period vacancies likely to arise due to

Maternity leave, medical leave should not to be notified.

MSM,J WP No.21482 of 2020 and batch

They can be filled up by work adjustment, if the period

is beyond 4 weeks.

Example: In a district, sanctioned SGT posts: 5,000 and working: 4500, then to be blocked vacancies are 5000- 45004500=500. If 40 mandals in the district, proportionately block that 500 vacancies in category-I, II and III.

(f) The committee shall arrive the number of vacancies

i.e. the difference between sanctioned and working in

each cadre.

Then the committee shall have to block the same

number of vacancies proportionately in category I, II and

III taking mandal as unit.

Example: In a district, sanctioned SGT posts: 5,000 and

working: 4500, then to be blocked vacancies are 5000-

4500=500. If 40 mandals in the district, proportionately

block that 500 vacancies in category-I, II and III.

(ii) The Headmaster/Teacher vacancies shall be computed

based on the UDISE data with cut-off date as on

01.10.2020 and by taking into consideration the teacher

pupil ratio and as per the re-apportion norms as notified

by Government from time to time. This shall be reconfirmed

by the competent authorities after field level verification

with the approval of District Collector (District Cadres) or

Director of School Education (Zonal Cadre), as the case

may be.

(iii) Vacancies of School Assistant (PS) and School Assistant

Maths) in U.P. Schools shall be specified.

Similarly, clause 12 deals with publication of vacancies and MSM,J WP No.21482 of 2020 and batch

seniority list.

12 Publication of vacancies and seniority list:

(i) The following lists shall be published on the website specified for the purpose and also displayed at the O/o Regional Joint Director of School Education and District Educational Officer concerned.

(a) The lists of category wise schools (category I, II, III and IV),

(b) The School wise vacancy position of Headmaster Gr.II Gazetted/School Assistant/Secondary Grade Teacher and equivalent categories for counselling.

(c) Subject to the procedure prescribed in clause (2) below, the list of names of the Headmaster Gr.II Gazetted / Teacher who applied for transfer with entitlement points.

(ii) After the last date for applying for transfers as per schedule, the seniority list shall be prepared, using software for generating the entitlement points management wise, category wise, subject wise, medium wise and the seniority list with entitlement points shall be published in the website specified for the purpose and also on the notice board of District Educational Officer/Regional Joint Director of School Education.

On close examination of these two clauses, consciously the

State in its wisdom did not direct the District Educational Officer

concerned to include the vacancies filled with promotees in

pursuance of the G.O.Ms.No.144 Finance (HR.II) Department dated

02.08.2016. It is not known the purpose behind it and it is the

wisdom of State authorities. Therefore, this Court cannot add any

guideline for notification of vacancies by issuing writ of Mandamus

since it is the duty of the State and its officials to take decision on the

issue, as issue of such direction by this Court would amount to

interference with administrative wisdom of the State.

In the earlier transfer counselling, as per G.O.Ms.No.32 School MSM,J WP No.21482 of 2020 and batch

Education (Ser.II) Department dated 04.06.2017, specific clause was

included i.e. clause 13 (i) (g) (extracted supra). Similarly, the

appointment orders were issued making it clear that the promotees

would not claim for continuation in the promoted post as all such

posts shall be made available for general transfer counselling to be

taken in 2017. In the same lines, proceedings were issued by the

District Educational Officers, more particularly District Educational

Officer, Nellore.

When the proceedings were issued in 2017 and transfers were

affected in pursuance of G.O.Ms.No.32 School Education (Ser.II)

Department dated 04.06.2017, they are entitled to claim such

inclusion. But in the present case, there is nothing on record to show

that the orders were issued to the promotees by incorporating any

such clause. Even assuming for a moment, the transfer and posting

orders on promotion were issued with such condition, in the absence

of any such condition in the present transfer guidelines, this Court

cannot issue a Writ of Mandamus as claimed by the petitioners.

Moreover, such condition in the transfer proceedings would not

confer any right on them to seek a direction to respondents, to notify

those vacancies filled with promotees.

The main thrust of the petitioners is that, they may have better

options if the vacancies filled with promotees are also notified in the

transfer counselling. But transfer is not a fundamental right or

statutory right, it is only incidence of service.

The issue of transfer is a prerogative of the employer and in

normal course; the Courts cannot interfere with such transfers. The

Apex Court discussed about the scope of interference of Courts and MSM,J WP No.21482 of 2020 and batch

settled the law in catena of decisions, held that it is entirely upon the

competent authority to decide when, where and at what point of time

a public servant is to be transferred from his present posting.

Transfer is not only an incident but an essential condition of service.

It does not affect the conditions of service in any manner. The

employee does not have any vested right to be posted at a particular

place. (Vide: "Ramadhar Pandey v. State of U.P.4" "State of U.P.

v. Dr. R.N. Prasad5" "Abani Kante Ray v. State of Orissa6"

An employee holding a transferable post cannot claim any

vested right to work at a particular place as the transfer order does

not affect any of his legal rights and the Court cannot interfere with

a transfer/posting which is made in public interest or on

administrative exigency. In "Gujarat Electricity Board v.

Atmaram Sungomal Poshani7" , the Supreme Court has observed

as under:-

"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."

Transfer of a public servant made on administrative grounds

or in public interest should not be interfered with unless there are

strong and pressing grounds rendering the transfer order illegal on

1993 Supp. (3) SCC 35

1995 (Supp) 2 SCC 151

1995 (Supp) 4 SCC 169

1989 SCR (2) 357 MSM,J WP No.21482 of 2020 and batch

the ground of violation of statutory rules or on ground of malafide.

(Vide: Union of India v. H.N. Kirtania8)

In view of the law declared in the judgments (referred supra),

the Courts must be slow to interfere with transfer of an employee,

except such transfer is vindictive in nature or tainted by serious

malafides.

To claim a writ of Mandamus, the petitioners have to establish

existence of legal right. Any person seeking writ of mandamus must

show that he has a legal right to overpower the opponent against

whom writ will be issued, to do or not to do some specific act. Legal

right of the petitioner is a condition precedent. Legal right must be a

legally enforceable right as well as a legally protected right before

claiming for mandamus. Existence of legal right is the foundation of

jurisdiction of a writ court to issue mandamus. In "Umakant Saran

v State of Bihar9" the Apex Court had an occasion to deal with the

issue of existence of legal right to claim writ of Mandamus. Based on

the facts of the above judgment, the Apex Court observed that

Dr.Saran was not eligible for appointment at the time the decision

was taken by the High Court i.e. on March 31, 1965. Whereas,

respondents 5 and 6 therein were so eligible, therefore, Dr.Saran,

had no right to ask for a writ of mandamus. It was pointed out by the

court that the purpose of mandamus is to force the authorities to do

something, it must be shown that the statute imposes a legal duty

and the aggrieved person had a legal right under the Statute to

1989 SCR (3) 397

AIR 1973 SC 964 MSM,J WP No.21482 of 2020 and batch

enforce its performance. Therefore, the appeal was dismissed by the

court as the petitioner failed to establish the existence of legal right.

Similarly, in "State of M.P. v. G.C. Mandawar10" the Apex

Court held that the applicant must have a legal right to compel the

performance of some duty cast on the opponent by The Constitution

or any other statute. And the duty must possess three qualities viz.

(1) duty must be of Public Nature, (2) must not be a discretionary

one, (3) and duty if discretionary then the power must have been

conferred by the authority and statutory provisions are made for

it. Finally, the Supreme Court concluded that the High Court has the

power to issue writs of mandamus in case, the authority or

government body has failed to exercise their discretionary duty or

has wrongly exercised the discretion conferred on them by the

statue.

The guidelines for transfers are not statutory in nature. When

the rules are not statutory in nature and not framed under Article

309 of the Constitution of India, for the alleged violation, the Courts

cannot interfere with the transfer and posting orders of employees.

In "Union of India v. S.L. Abbas11" the Apex Court has

observed that the Government instructions on transfer are mere

guidelines without any statutory force and the Court or Tribunal

cannot interfere with the order of transfer unless the said order is

alleged to have been passed by malice or where it is made in violation

of the statutory provisions.

AIR 1954 SC 493

1993 SCR (3) 427 MSM,J WP No.21482 of 2020 and batch

Similar view has been reiterated by the Supreme Court,

in "Bank of India v. Jagjit Singh Mehta12" observing that the

terms incorporated in the transfer policy for posting of both the

spouses, if in service, at the same place, require to be considered by

the authorities "along with exigencies of administration" and

"without any detriment to the administrative need and claim of other

employees".

In "State Bank of India v. Anjan Sanyal13" the Apex Court

held as under:-

"4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.

(Emphasis supplied).

It is clear from the law declared by the Apex Court, the transfer

policy does not create any legal right in favour of the employee. It is

settled law that a writ petition under Article 226 of the Constitution

is maintainable for enforcing the statutory or legal right or when

there is a complaint by an employee that there is a breach of a

statutory duty on the part of the employer. Therefore, there must be

a judicially enforceable right, for the enforcement of which the writ

jurisdiction can be resorted to. The Court can enforce the

performance of a statutory duty by public bodies through its writ

jurisdiction at the behest of a person, provided such person satisfies

the Court that he/ she has a legal right to insist on such

(1992) 1 SCC 306

AIR 2001 SC 1748 MSM,J WP No.21482 of 2020 and batch

performance. The existence of the said right is a condition precedent

for invoking the writ jurisdiction. (Vide: Calcutta Gas Company

(Propriety) Ltd. v. State of West Bengal14 and "State of Kerala v.

K.G. Madhavan Pillai15").

Turning to the facts of the present case, all the petitioners in

W.P.Nos.21482 of 2020, 1393 and 1492 of 2021 claiming a direction

against the State and its authorities to notify the vacancies filled with

promotes in pursuance of G.O.Ms.No.144 Finance (HR.II) Department

dated 02.08.2016, but failed to show any existing legal right to be

enforced against the statutory authorities and to issue of writ of

Mandamus to compel them to do a particular act. Failure of the

petitioners to establish existence of legal right to compel the

respondents to notify the vacancies filled with promotees, the

petitioners are not entitled for writ of Mandamus.

Coming to the violations pointed out by the petitioners, non-

inclusion of vacancies filled with promotees in pursuance of the

G.O.Ms.No.144 Finance (HR.II) Department dated 02.08.2016 is

neither violation of any statutory provision nor constitutional

provision. At the same time, non-inclusion is not an arbitrary or

illegal exercise of power by the State authorities. In such case, even

the test of arbitrariness and unreasonableness is applied, a direction

cannot be given by this Court compelling the respondents to include

the vacancies filled with promotees in pursuance of the

G.O.Ms.No.144 Finance (HR.II) Department dated 02.08.2016 as the

petitioners failed to establish existence of legal right.

In "Assistant Commissioner (CT) LTU, Kakinada v. Glaxo

1962 SCR Supl. (3) 1

1988 SCR Supl. (3) 94 MSM,J WP No.21482 of 2020 and batch

Smith Kline Consumer Health Care Limited16", the Apex Court

considered the scope of writ of Mandamus and examined the scope,

reiterated the principles laid down by the Apex Court in its earlier

judgments.

The power of the High Court to issue directions, orders or writ

in exercise of jurisdiction under Article 226 of the Constitution of

India, the same is no more res integra. Even though the High Court

can entertain a writ petition against any order or direction

passed/action taken by the State under Article 226 of the

Constitution, it ought not to do so as a matter of course when the

aggrieved person could have availed of an effective alternative remedy

in the manner prescribed by law. But the exercise of the jurisdiction

is discretionary; it is not exercised merely because it is lawful to do

so. The very amplitude of the jurisdiction demands that it will

ordinarily be exercised subject to certain self-imposed limitations.

Resort that jurisdiction is not intended as an alternative remedy for

relief which may be obtained in a suit or other mode prescribed by

statute.

Thus, the jurisdiction of this Court is limited in view of the self

imposed restrictions. In the said judgment, the Apex Court had

considered the scope of Writ of Mandamus while referring the

judgments of Constitutional Bench of the Apex Court in "Supreme

Court Bar Association v. Union of India17", held that there is no

conflict of opinion in "A.R. Antulay v. R.S. Nayak18" or in "Union

Carbide Corporation v. Union of India19" with the principle set

AIR 2020 SC 2819

(1998) 4 SCC 409

(1988) 2 SCC 602

(1991) 4 SCC 584 MSM,J WP No.21482 of 2020 and batch

down in "Prem Chand Garg v. Excise Commissioner20". Be it noted,

when there is a statutory command by the legislation as regards

limitation and there is the postulate that delay can be condoned for a

further period not exceeding sixty days, needless to say, it is based on

certain underlined, fundamental, general issues of public policy as

has been held in "Union Carbide Corporation v. Union of India"

(referred supra).

In view of the law declared by the Apex Court, the jurisdiction

of this Court to issue a writ of Mandamus is limited and such

direction can be issued only in case where the petitioner is able to

establish the existence of legal right and right to compel the statutory

authorities to enforce the same by way of writ of Mandamus.

In the present case, the petitioners miserably failed to establish

the basic requirements to issue a writ of Mandamus. On this ground,

the petitioners are disentitled to claim relief.

One of the contentions raised by Smt.Kavitha Gottipati, learned

counsel for the petitioners and Sri C.Raghu, learned counsel for the

implead petitioners is that the teachers who have completed two

Years of service at the present station are entitled to make a request

for transfer. The entitlement of teachers, who have completed two

years service at the present station, to make a request, it is

prescribed in clause 2 (iii) of the guidelines in G.O.Ms.No.54 School

Edn (Services.II) Department dated 12.10.2020 and the same is not

disputed by any of the petitioners or respondents. Therefore, the

petitioners, who have completed two years of service are entitled to

make an application for request transfer.

AIR 1963 SC 996 MSM,J WP No.21482 of 2020 and batch

Turning to the other issue in the present case, the issue

involved in these matters is identical to the issue involved in the

Judgment of the Division Bench of the High Court of Andhra Pradesh

at Hyderabad in Writ Petition No.31598 of 2011, 1394, 1818 and

5173 of 2012 dated 05.06.2012 and the judgment of the learned

Single Judge of this Court in W.P.Nos.20043 of 2020 and 20149 of

2020 dated 16.12.2020. Therefore, it is unnecessary to undertake

independent exercise to decide the legality of the issue before this

Court since the judgment of coordinate bench in W.P.Nos.20043 of

2020 and 20149 of 2020 dated 16.12.2020 and the judgment of

Division Bench in Writ Petition No.31598 of 2011, 1394, 1818 and

5173 of 2012 dated 05.06.2012 are binding on the single Judge of

this Court. The petitioners are not able to show any other judgment

of the Apex Court or this Court contrary to the law declared by the

Division Bench of the High Court of Andhra Pradesh in Writ Petition

No.31598 of 2011, 1394, 1818 and 5173 of 2012 dated 05.06.2012.

Therefore, the issue is no more res integra and this Court is bound to

follow the judgment of the Division Bench in Writ Petition No.31598

of 2011, 1394, 1818 and 5173 of 2012 dated 05.06.2012 and the

judgment of the learned single Judge in W.P.Nos.20043 of 2020 and

20149 of 2020 dated 16.12.2020. However, little narration of facts is

necessary to apply the principle laid down therein to the present facts

of the case.

In Writ Petition No.31598 of 2011, 1394, 1818 and 5173 of

2012 dated 05.06.2012, failure to notify the vacancies occupied by

juniors during September 2009 to April 2011 was questioned. The

transfer guidelines of G.O.Ms.No.54 School Edn (Services.II) MSM,J WP No.21482 of 2020 and batch

Department dated 12.10.2020 are identical to the transfer guidelines

vide G.O.Ms.No.65 Education (SE Ser.III) department dated

19.05.2011. The Andhra Pradesh Administrative Tribunal in

O.A.No.6565 and 3492 of 2011 and batch accepted the contention of

the petitioners therein, but the Division Bench turndown the plea

and set aside the order passed by the Andhra Pradesh Administrative

Tribunal. Following the same, learned Single Judge dismissed

W.P.Nos.20043 of 2020 and 20149 of 2020 vide order dated

16.12.2020. Except the number of Government Orders and dates, the

facts are identical in all respects including vacancies to be notified

under the present transfer guideline No.11 of G.O.Ms.No.54 School

Edn (Services.II) Department dated 12.10.2020. Therefore, the law

declared by the Division Bench is binding and the issue involved in

the present cases is squarely covered by the judgment of the Division

Bench of the High Court of Andhra Pradesh in Writ Petition No.31598

of 2011, 1394, 1818 and 5173 of 2012 dated 05.06.2012. More so, no

additional ground is raised in the present petitions than the grounds

urged in the earlier Writ Petition No.31598 of 2011, 1394, 1818 and

5173 of 2012 before the Division Bench and W.P.Nos.20043 of 2020

and 20149 of 2020 before the learned Single Judge. Hence, by

applying the principle laid down in the said judgments, the writ

petition Nos.21482 of 2020, 1393 and 1492 of 2021 are liable to be

dismissed. Accordingly, the issue is held in favour of the petitioners

in W.P.Nos.1510, 1282, 1461, 1543, 1583, 1573, 1318, 2099, 2279,

2900, 2692 of 2021.

In view of foregoing discussion and findings recorded in point

Nos.1 and 2, the petition Nos.21482 of 2020, 1393 and 1492 of 2021 MSM,J WP No.21482 of 2020 and batch

are devoid of merits and liable to be dismissed.

In the result, writ petition Nos.1510, 1282, 1461, 1543, 1583,

1573, 1318, 2099, 2279, 2900, 2692 of 2021 are allowed declaring

the action of respondent No.2 in issuing proceedings

R.C.No.13029/61/2020-EST 3 dated 08.01.2021 and consequential

proceedings issued in R.C.No.13029/11/2020-EST 3 dated

14.01.2021 as illegal, arbitrary, contrary to settled law and

G.O.Ms.No.54 dated 12.10.2020 and vioaltive of Article 14, 16 and 21

of the Constitution of India; they are hereby set aside and the other

writ petition Nos.21482 of 2020, 1393 and 1492 of 2021 are

dismissed. No costs.

Consequently, miscellaneous petitions pending if any, shall

also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 12.02.2021 Ksp