Andhra Pradesh High Court - Amravati
Vunnava Radha Lakshmi, vs State Of Andhra Pradesh on 25 January, 2021
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NOs. 20458, 20725, 20755, 20789, 20808, 20816,
20924, 20937, 20942, 20948, 20951, 20963, 20976, 20990, 21013,
21016, 21024, 21038, 21069, 21082, 21084, 21101, 21112, 21293,
21307, 21308, 21371, 21693 OF 2020
AND
WRIT PETITION NOs.1407 AND 1420 OF 2021
COMMON ORDER:
As the relief claimed in all these three writ petitions is
identical, as such, learned counsel for the petitioners and
respondents advanced common argument. Hence, I am of the view
that it is expedient to decide all these writ petitions by common
order.
All these writ petitions are filed under Article 226 of the
Constitution of India for issue of Writ of Mandamus, declaring the
action of the respondents in effecting transfer of the petitioners from
their respective schools in different areas of different districts, as per
the transfer schedule issued through proceedings of the
respondents, in pursuance of G.O.Ms.No.54, School Education
(Service. II) Department dated 12.10.2020 issued by the
respondents, without taking decision for merger of the said schools
into their respective Municipal Corporations/Municipalities/Nagar
Panchayats, despite addressing letters by the concerned authorities
of Municipal Corporations/Municipalities/Nagar Panchayats to the
Commissioner, Department of School Education to give
management/control over the schools which are under the control of
Panchayat Raj Department, as illegal, arbitrary and contrary to law
and violative of fundamental rights guaranteed under Articles 14, 19
MSM,J
WP_20458_2020 & batch
2
and 21 of the Constitution of India and consequently direct the
respondents not to transfer these petitioners from their schools to
other schools outside their Municipal Corporation Limits.
The details of writ petitions, present working station of the
petitioner(s), proceedings of Director of School Education, Andhra
Pradesh, Amaravati fixing schedule for transfers in pursuance of
G.O.Ms.No.54 dated 12.10.2020 and details of letters addressed by
concerned authorities of Municipal Corporations/ Municipalities/
Nagar Panchayats to Commissioner of School Education to take
necessary action for merging of ZP & MPP schools located/existing in
the Municipal limits into Municipal Management with permission
from Panchayat Raj Department are tabulated hereunder:
(1) (2) (3) (4)
S.No W.P.No. Present station of the Proceedings of Letters addressed by concerned
petitioners Director of School authorities of Municipal
Education, Andhra Corporations/ Municipalities/
Pradesh, Amaravati Nagar Panchayats to
fixing schedule for Commissioner of School
transfers Education to take necessary
action for merging of ZP & MPP
schools located/existing in the
Municipal limits into Municipal
Management with permission
from Panchayat Raj Department
1 WPNo.20458 of 2020 Zilla Parishad High Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
School, Satrampadu, Est-3 (2299/2017/J3 dated 21.05.2020
Eluru And
Rc.No.ESE 02-36/93/2020-CSE
dated 10.06.2020
2 WP No.1407 of 2021 Zilla Parishad High Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
School, Nowluru, Est-3 (2299/2017/J3 dated 21.05.2020
Mangalagiri Mandal,
Guntur District
3 WPNo.1420 of 2021 Zilla Parishad High Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
School, Pernametta, Est (2299/2017/J3 dated 21.05.2020
S.N. Padu, Mandal,
Prakasam District
4 WPNo.20725 of 2020 M.P.U.P.School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Nandyal Mandal, Est-3 (2299/2017/J3 dated 21.05.2020
Kurnool District
5 WPNo.20755 of 2020 Mandal Parishad Roc.No.11036/2/2017-JSEC
Primary School, (2299/2017/J3 dated 21.05.2020
Kalyanadurgam -
Mandal, Anantapuram
District
6 WPNo.20789 of 2020 Mandal Parishad Roc.No.11036/2/2017-JSEC
Primary School, (2299/2017/J3 dated 21.05.2020
Gallavaripalem, -
Kandukur, Prakasam
District
MSM,J
WP_20458_2020 & batch
3
7 WPNo.20808 of 2020 MPP/ZPP Schools, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Kurnool District Est-3 (2299/2017/J3 dated 21.05.2020
8 WPNo.20816 of 2020 MPP/ZPP Schools, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Visakhapatnam Est-3 (2299/2017/J3 dated 21.05.2020
District
9 WPNo.20924 of 2020 MPP/ZPP Schools, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Prakasam District Est-3 (2299/2017/J3 dated 21.05.2020
10 WPNo.20937 of 2020 MPP School, Padmavati Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Nagar, Tirupati, Est-3 (2299/2017/J3 dated 21.05.2020
Chittoor District
11 WPNo.20942 of 2020 MPP School, Kotakatta Roc.No.11036/2/2017-JSEC
Street, Kandukur - (2299/2017/J3 dated 21.05.2020
Municipality ,
Prakasam District
12 WPNo.20948 of 2020 ZPP/MPP School, Rc.No.13029/11/2020-
Nellore District Est-3 -
13 WPNo.20951 of 2020 ZP High School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Srikalahasthi, Chittoor Est-3 (2299/2017/J3 dated 21.05.2020
District
14 WPNo.20963 of 2020 ZP High School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Rayadurg Municipality, Est-3 (2299/2017/J3 dated 21.05.2020
Anantapuram District
15 WPNo.20976 of 2020 MPP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Nallapadu, Guntur Est-3 (2299/2017/J3 dated 21.05.2020
District
16 WPNo.20990 of 2020 MPP School, Roc.No.11036/2/2017-JSEC
Chapuram Panchayat, - (2299/2017/J3 dated 21.05.2020
Pathrunivalasa Post,
Srikakulam District
17 WPNo.21013 of 2020 MPP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Mukthinuthalapadu, Est-3 (2299/2017/J3 dated 21.05.2020
Ongole Mandal,
Prakasam District
18 WPNo.21016 of 2020 MPP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Kapulaveedhi, Pedana Est-3 (2299/2017/J3 dated 21.05.2020
village and Mandal,
Krishjna District
19 WPNo.21024 of 2020 MPP School,
Ganapavaram, Guntur - -
District
20 WPNo.21038 of 2020 MPP School, Nowluru, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Mangalagiri Mandal Est-3 (2299/2017/J3 dated 21.05.2020
Guntur District
21 WPNo.21069 of 2020 MPUP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Rayachoty Est-3 (2299/2017/J3 dated 21.05.2020
YSR Kadapa District
22 WPNo.21082 of 2020 ZP/MPP High School Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Visakhapatnam Est-3 (2299/2017/J3 dated 21.05.2020
District
23 WPNo.21084 of 2020 ZPP/MPP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Hindupur Town and Est-3 (2299/2017/J3 dated 21.05.2020
Mandal
Anantapuram District
24 WPNo.21101 of 2020 MPUP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Machavaram Est-3 (2299/2017/J3 dated 21.05.2020
Kanigiri Nagar
Panchayat
Prakasam District
25 WPNo.21112 of 2020 MPP School, Roc.No.11036/2/2017-JSEC
Kalyanadurgam Town - (2299/2017/J3 dated 21.05.2020
& Mandal
Anantapuram District
26 WPNo.21293 of 2020 MPP/ZP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Guntur District Est-3 (2299/2017/J3 dated 21.05.2020
27 WPNo.21307 of 2020 MPP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Chittoor District Est-3 (2299/2017/J3 dated 21.05.2020
28 WPNo.21308 of 2020 MPP/ZP School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
East Godavari District Est-3 (2299/2017/J3 dated 21.05.2020
29 WPNo.21371 of 2020 MPP School, Rc.No.13029/11/2020-
Nellore District Est-3
-
30 WP/21693/2020 ZP High School, Rc.No.13029/11/2020- Roc.No.11036/2/2017-JSEC
Tadepalli Mandal Est-3 (2299/2017/J3 dated 21.05.2020
Guntur District
MSM,J
WP_20458_2020 & batch
Since the dispute is revolving around the issue of transfers of
teachers who are working in the schools under the control of
Education and Panchayat Raj Departments, though the schools are
located within the erstwhile village panchayats merged with the
Municipal Corporations/ Municipalities/Nagar Panchayats, those
schools are directly under the control of Panchayat Raj Department
as on date and unless the management of the schools is vested with
the Municipal Corporations/ Municipalities/Nagar Panchayats, the
petitioners are not deemed to be the employees of their respective
Municipal Corporation(s). Letters were addressed by the concerned
authorities of Municipal Corporations/ Municipalities/Nagar
Panchayats to the Commissioner, Department of School Education
for giving control/management of the schools which are situated
within the erstwhile village panchayats merged with the Municipal
Corporations/ Municipalities/Nagar Panchayats and there was no
response from the State Government to vest control/management of
those schools with the Municipal Corporations/ Municipalities/
Nagar Panchayats. Therefore, on account of transfer proceedings
proposed to be taken by the District Educational Officers of various
districts in pursuance of G.O.Ms.No.54 dated 12.10.2020, as it will
seriously cause prejudice to the petitioners and affect their right to
continue to work within the corporation limits in the event of
affecting transfers before vesting management/control of those
schools with the Municipal Corporations/Municipalities/Nagar
Panchayats, to protect their fundamental right guaranteed under
Articles 14, 19 and 21 of the Constitution of India, the petitioners
claimed relief stated supra in all these petitions.
MSM,J
WP_20458_2020 & batch
The apprehension of most of the petitioners working in the
schools as Secondary Grade Teachers or School Assistants or in any
other capacity in the schools under the control of Panchayat Raj
Department, is that, if the petitioners are transferred to any other
school under the control of Panchayat Raj Department, there will not
be any chance for them to work in the schools of Municipal
Corporation limits, though the villages where the present schools are
situated are merged in Municipal Corporations/ Municipalities/
Nagar Panchayats.
Another contention raised before this Court is that, when a
particular village panchayat is merged with Municipal Corporations/
Municipalities/Nagar Panchayats where the school is located in
which the petitioners are working, the entire property of the village,
including employees serving in various offices in the village are
deemed to have been vested in the Municipal Corporation, in view of
Section 16 of the Andhra Pradesh Municipal Corporations Act, 1994,
thereby, these petitioners working in the schools (ZPP or MPP) which
are under the control of Panchayat Raj Department are deemed to be
the employees working within the schools under the control of
Municipal Corporations/ Municipalities/Nagar Panchayats.
The last contention raised by the petitioners before this Court
is that, the Commissioners of Municipal Corporations/
Municipalities/Nagar Panchayats already addressed letters to the
State Government for handing over management/control of the
schools vesting on the Municipal Corporations/Municipalities/Nagar
Panchayats long ago, but the State Government did not take any
MSM,J
WP_20458_2020 & batch
action, though substantial period is lapsed after addressing letters to
the Government and for the fault of the State Government, the
petitioners cannot be penalized by transferring them to any other
school under the control of Panchayat Raj Department depriving
them to work in the schools situated within the Municipal
Corporations/Municipalities/Nagar Panchayats limits.
The petitioners alternatively requested to direct the
respondents/State Government to take action on the letters
mentioned in Column No.4 of the table and continue these
petitioners to work in the same schools till passing orders in the
letters shown in Column No.4 of the table hereinabove and requested
to grant the relief as claimed in the writ petitions.
Heard learned counsel for the petitioners Sri V.R. Reddy
Kovvuri, Sri A. Surya Rao, Sri Seshadri Golla, Sri P. Nagendra Reddy,
Sri Kavitha Gottipati, Sri T.M.K. Chaitanya, Sri A. Sai Rohit and
Sri G.V.L Murthy, on behalf of the petitioners.
Learned Government Pleader for Services did not file counter
affidavit, but advanced arguments on behalf of the Government.
Sri M. Srikanth, learned counsel appearing for the petitioners
in I.A.No.2 of 2020/ proposed Respondent Nos. 9 to 28, filed counter
affidavit in I.A.No.3 of 2020.
During hearing, learned counsel for the petitioners vehemently
raised a major contention that, when the village(s) and it's employees
are deemed to have been under the control of the Municipal
Corporations/Municipalities/Nagar Panchayats, in terms of Section
MSM,J
WP_20458_2020 & batch
16 of Andhra Pradesh Municipal Corporations Act, 1994, the
petitioners who are the employees are deemed to be working under
the control of Municipal Corporations/Municipalities/Nagar
Panchayats and that they cannot be transferred based on the
guidelines issued in G.O.Ms.No.54 dated 12.10.2020 and the
proceedings issued by the Education Department having control over
the schools in the State to any other schools under the control of
Education Department and Panchayat Raj Department, as they are
deprived of their right to work in the schools within the limits of
Municipal Corporations/ Municipalities/Nagar Panchayats and such
inaction on the part of the State in not taking decision for handing
over control/management over the schools located in the village
panchayats merged with Municipal Corporations/
Municipalities/Nagar Panchayats is illegal, arbitrary and requested
to issue a direction as stated supra.
Whereas, learned Government Pleader for Services contended
that, unless an order is passed by the State Government to handover
the management/control of the schools by Panchayat Raj
Department and Education Department to Municipal Corporations/
Municipalities/Nagar Panchayats, they are not deemed to be under
the control of Municipal Corporations/ Municipalities/Nagar
Panchayats and they are the schools under the control of Panchayat
Raj Department and Education Department. It is also contended
that, mere addressing letter(s) to the State Government is not
sufficient and in the absence of any order passed by the State
Government, vesting the management /control over the schools
located in the area which is merged with the Municipal
MSM,J
WP_20458_2020 & batch
Corporations/ Municipalities/Nagar Panchayats, they cannot be
treated as schools under the control of Municipal Corporations
/Municipalities/Nagar Panchayats. Learned Government Pleader
drawn attention of this Court to the judgment of Division Bench of
this Court in Smt. M. Vijaya Lakshmi v. Government of Andhra
Pradesh1 and judgment of learned single Judge of this Court in
Seelam Raghava Reddy v. State of Andhra Pradesh2 and on the
strength of the principles laid down in the above judgments, learned
Government Pleader for Services requested to dismiss the writ
petitions.
Considering rival contentions, perusing the material available
on record, the points that arise for consideration are as follows:
1. Whether the schools situated in the erstwhile village
panchayats which are merged with the Municipal
Corporations/Municipalities/Nagar Panchayats are deemed to
have been vested on the Municipal Corporations/
Municipalities/Nagar Panchayats in terms of Section 19 of the
Andhra Pradesh Municipal Corporations Act, 1994. If so,
whether the employees working in those schools are entitled to
claim that they are the employees of the Municipal
Corporations/Municipalities/Nagar Panchayats?
2. Whether the petitioners are governed by G.O.Ms.No.54 dated
12.10.2020 and the proceedings issued by the concerned
District Educational Officers, as shown in Column No.4. If so,
whether the petitioners be transferred to any other schools in
village panchayats under the control of Panchayat Raj
Department and Education Department?
3. Whether the proposed transfer of these petitioners to schools
under the control of Education Department or Panchayat Raj
Department located in village panchayats amounts to violation
of fundamental right guaranteed under Articles 14, 19 and 21
of the Constitution of India? If so, whether the proceedings
issued by the District Educational Officer shown in Column
No.4 of the table mentioned above in pursuance of
G.O.Ms.No.54 dated 12.10.2020 be declared as illegal and
arbitrary?
W.P.No.36970 and 37342 of 2013 dated 10.04.2014
W.P.No.25405 of 2020 dated 30.12.2020
MSM,J
WP_20458_2020 & batch
P O I N T No.1
The petitioners are admittedly working in the schools situated
in erstwhile village panchayats under the control and management of
Panchayat Raj Department and Education Department. They are
situated in the erstwhile panchayats merged with other Municipal
Corporations/Municipalities/Nagar Panchayats shown in the table.
But, as seen from the Government Orders, merging the village
panchayats in the Municipal Corporations /Municipalities/Nagar
Panchayats issued under Section 3(2) of the Andhra Pradesh
Municipal Corporations Act, 1994, or under the provisions of the
Municipalities Act, certain villages shown in the notification were
merged with municipal corporations. But, the schools situated
within the erstwhile village panchayats are not vested with the
Municipal Corporations/Municipalities/Nagar Panchayats, by any
specific order. However, the letters were addressed as shown in
Column No.4 for handing over management/control of those schools
situated in the erstwhile village panchayats of the municipal
corporation to the Commissioner of School Education by State of
Andhra Pradesh and those requests are pending with the
Commissioner of School Education for taking appropriate action on
the letters addressed by Municipal Corporations/ Municipalities
/Nagar Panchayats. But, a strange contention is raised in all these
writ petitions during argument that, in terms of Section 16 of the
Andhra Pradesh Municipal Corporations Act, 1994, the offices and
the educational institutions and it's employees who are in service of
the municipality are deemed to be the employees of the Municipal
Corporation, provided that any officer or employee serving in the
MSM,J
WP_20458_2020 & batch
municipality shall exercise an option and drawn attention of this
Court to Section 16 of the Andhra Pradesh Municipal Corporations
Act, 1994, which deals with vesting of the area covered by
municipality on its upgradation as Municipal Corporation.
Section 16 is a transitional provision, enabling the employees
either to continue to work in the Municipal Corporation on it's
upgradation or to opt to work in any other municipality, giving
option to them. Section 16 deals with consequences where a
municipality ceases to exist and Municipal Corporation is
constituted in it's place in terms of the Act. According to subsection
(1) of Section 16, all property, all rights of whatever kind, used,
enjoyed or possessed by, and all interests of whatever kind owned
by, or vested in, or held in trust by or for the Municipal Council, with
all rights of whatever kind used, enjoyed or possessed by the said
Council as well as all liabilities legally subsisting against the said
Council, shall, on and from the commencement of this Act and
subject to such directions as the Government may, by general or
special order, give in this behalf, pass to the Corporation.
Subsections (2), (3) and (4) of Section 16 are not relevant for
the purpose of deciding this issue. However, subsection (6) is
relevant to some extent. According to subsection (6) of Section 16,
notwithstanding this Act, every officer or employee who, immediately
before such commencement was in the service of the Municipality
shall be deemed to be an officer or employee of the Corporation. By
virtue of this deeming provision, the petitioners are claiming right to
MSM,J
WP_20458_2020 & batch
continue in the same schools, forgetting the provisos to
subsection (6) to Section 16.
Even according to these provisions, Section 16 is applicable
only in case where a municipality is ceased to exist on it's
upgradation as Municipal Corporation, but, Section 16 has no
application to the municipalities by changing their boundaries
merging certain adjoining villages by notification. Even to apply
Section 16 of the Municipal Corporations Act, an option has to be
given to the employee either to continue to work in the municipal
corporation on it's upgradation or to work in any other municipality.
But, in the present case, the petitioners are working in the schools
situated in the erstwhile village panchayats merged with the
municipal corporations. This provision is applicable only to the
employees working in the municipality, but not in village panchayat.
Therefore, Section 16 of the Andhra Pradesh Municipal Corporations
Act, 1994, will have no application to any of these cases and by
virtue of Section 16, it is difficult to hold that these petitioners are
the members in the services of Municipal Corporation and they are
still under the control and management of Panchayat Raj
Department and Education Department, drawing salary from the
same department i.e Panchayat Raj Department. As long as the
petitioners are continuing as members of service under the
Panchayat Raj Department or Education Department, drawing salary
and other benefits, they are not deemed to be employees under the
Municipal Corporation though those village panchayats are merged
by exercising power under Section 3 of the Municipal Corporations
Act, unless, the management/control over those schools is vested on
MSM,J
WP_20458_2020 & batch
the Municipal Corporations by specific government order. Hence, I
find no substance in the contention of the learned counsel for the
petitioners in all these writ petitions and the contention of the
petitioners that they are deemed to be the members of service under
Municipal Corporations is hereby rejected, while upholding the
contention of the respondents that the petitioners are the members
of service under the control of Panchayat Raj and Education
Department, as they are being paid by the Panchayat Raj
Department till date, no order is passed by the State under
Section 16(1) to vest on Municipal Corporations/
Municipalities/Nagar Panchayats.
Accordingly, the point is answered against these petitioners
and in favour of the respondents.
P O I N T No.2:
While admitting that the petitioners are still working under the
Panchayat Raj Department and the schools under the control of
Education Department of the State Government, the petitioners are
contending that, in the event of petitioners transfer from present
school(s) to any other school(s), much prejudice will be caused to
them and they will have no chance to work in the schools situated
within the Municipal Corporations and attributed malafides to the
State in affecting transfers by issuing G.O.Ms.No.54 dated
12.10.2020 and proceedings by the District Educational Officer
mentioned in Column No.4 of the table mentioned above.
MSM,J
WP_20458_2020 & batch
No doubt, though several village panchayats were merged with
the corporations, still the petitioners are continuing as employees of
Panchayat Raj Department and appointments have taken place by
the Panchayat Raj and Education Department by paying salary to
the employees working in the schools, though, substantial period is
elapsed in various municipalities. As long as the
management/control is continuing with the Panchayat Raj
Department over the schools, unless it is divested with the
Panchayat Raj Department by vesting the management and control
on the corporations, the petitioners are not entitled to claim that
they are the members of service under the Municipal Corporations
Act. That is the reason for addressing letters by concerned
authorities of Municipal Corporations/ Municipalities/Nagar
Panchayats to the Commissioner of School Education, as mentioned
in Column No.4 of the table mentioned above. Therefore, as on date,
these petitioners are working under the control of Panchayat Raj
Department directly drawing salary from the same department,
though overall control is under the control of Education Department.
None of the letters addressed by the Commissioners of Municipal
Corporations/ Municipalities/Nagar Panchayats were considered and
no orders have been passed till date. Therefore, no malafides are
attributable to the State in view of the financial burden on the
Corporations to manage those schools. Hence, the apprehension of
these petitioners may be true to some extent, but that by itself is not
a ground to issue a direction declaring the action of the respondents
as illegal.
MSM,J
WP_20458_2020 & batch
Similar issue came up before the Division Bench of this Court
in Smt. M. Vijaya Lakshmi v. Government of Andhra Pradesh
(referred supra). O.A.No.3222 of 2011 was filed before Andhra
Pradesh Administrative Tribunal challenging the Government Memo
No.12720/SE.Ser.III/09 Education Department dated 02.06.2011,
proceedings of the District Educational Officer, Visakhapatnam,
dated 10-06-2011 and 18-07-2011 and proceedings of the District
Educational Officer, Kadapa, dated 07-06-2011 and 23-07-2011 in
pursuance of G.O.Ms.No.481, dated 13-11-2004 for transfer of
teachers and the Andhra Pradesh Administrative Tribunal dismissed
those petitions. Aggrieved by the orders, writ petitions were filed by
the employees, raising similar grounds. The Division Bench of this
Court, referred to earlier decision of this court in N.Lakshmana Rao
v. State Of Karnataka3, wherein it was held as follows:
"The Government Order dated April 30, 1971 stated that all employees
of the Local Authorities would become government servants with effect
from the date of transfer and their conditions of service would not be
varied to their disadvantage consequent on their transfer to government
control. The government order dated April 30, 1971 further provided that
the employees of local bodies and secondary schools would be absorbed
in government service only if they agreed in writing to the forms. But the
form is meant the form of option. The form of option contained two forms.
One was whereby the teachers agreed to be absorbed in government
service and the other where the teachers did not agree to be absorbed in
government service. Those who agreed to be absorbed in government
service stated that the terms and conditions laid down by Government
regarding absorption of the members of the staff of local body in
government service consequent on the takeover of the local body to the
control of Government were gone through and they agreed to be
absorbed in government service. The agreement between the Government
and the relevant school of the local body provided that the service
conditions of teaching and non-teaching employees of the local bodies
shall not be varied to their disadvantage consequent on their transfer to
government control. As a result of the exercise of option by the teachers
of the local bodies they became government servants. The term that the
service conditions would be like all other government servants subject to
Article 310 (1) of the Constitution. This could mean that under the laws
these teachers would be entitled to continue in service up to the age of
superannuation. The exercise of option does not mean that there was a
contract whereby a limitation was put on prescribing an age of
superannuation. It has been held by this Court that prescribing an age of
superannuation does not amount to an action under Article 311 of the
(1976) 2 SCC 502
MSM,J
WP_20458_2020 & batch
Constitution. Article 309 confers legislative power to provide conditions of
service. The Legislature can regulate conditions of service by law which
can impair conditions or terms of service. The form of option is the
contract. This exercise of option is itself the contract. The option is to be
absorbed or not to be absorbed. The contractual term is that the teacher
will be absorbed as a government servant. The term n the agreement
between the Government and the local body that the conditions of service
will not be varied to the disadvantage of the teachers has been read by
all teachers who exercised the option to be absorbed. The conditions of
service referred to therein are the conditions of service of the State of
Mysore."
The Division Bench concluded that, the above decision has no
application to the facts of the case because in this case, admittedly
no Government order is issued vesting management/control of
schools on Municipal Corporations/ Municipalities/Nagar
Panchayats directing the teachers working in M.P.P. and Z.P. schools
to give options to transfer them to the schools under the
management of Corporation. In the circumstances of that case, it is
held that once an option has been exercised, it would be final
because exercising option itself is the contract. Such a situation has
not arisen in this case because the Government did not issue any
order calling for the options from all the teachers working in Z.P. and
M.P.P. schools. Options were called for by the District Educational
Officer, not from all the teachers working in the District, but from
the teachers working in the schools, which were transferred to the
control of Corporation. By virtue of upgradation of Municipality as
Corporation, the applicants were working at that time in the schools
located in the Gram Panchayats, were merged into Municipal
Corporation. Till the Government issued Government Order calling
for the options from all the teachers working in the District and
takes final decision, under no stretch of imagination as the
petitioners gave options, it can be said that they were brought under
the purview of Corporation and rejected the case of the petitioners
MSM,J
WP_20458_2020 & batch
while holding that the teachers of various categories of the unit have
to be taken into consideration for the purpose of transferring them to
schools under the control of corporation and dismissed the writ
petitions as it is devoid of merits.
The issue involved in the above judgment is identical to the
issue involved in the present case, but with thin difference. In the
facts of the above judgment, the teachers who are working in the
schools situated within the limits of erstwhile village panchayats
merged with the Municipal Corporations. But, the Government
issued Government Order for transfer of employees in the schools
working under the control of Education Department. But, the
petitioners therein themselves gave an option even before calling by
the State and on the basis of their voluntary options; they claimed
that they are the employees of Municipal Corporations. But the
Division Bench of this Court rejected such contention.
In the present case, the petitioners are continuing in the
schools which are under the control of Panchayat Raj and Education
Department situated within the erstwhile village panchayats merged
with the Municipal Corporations/Municipalities/Nagar Panchayats.
But, no order was passed by the State to hand over
management/control of schools to Municipal Corporations/
Municipalities/Nagar Panchayats , as no such option was called for
by the Government from the present petitioners. Hence, the
petitioners are deemed to be under the employees under the direct
control of the Panchayat Raj Department, as they are drawing
salaries only from Panchayat Raj Department till date, but not from
MSM,J
WP_20458_2020 & batch
the Municipal Corporations. Even by applying the principle laid
down in the above judgment, the petitioners cannot be deemed to be
the employees of Municipal Corporations/Municipalities/Nagar
Panchayats.
One of the major contentions raised before this Court is that,
for the inaction of the respondents/State Government, the
petitioners shall not be put to any inconvenience.
No doubt, several letters were addressed by the Commissioners
of Municipal Corporations/Municipalities/Nagar Panchayats to the
Commissioner of School Education for handing over the
management/control of the schools in which they are working, which
were situated in the erstwhile village panchayats merged with the
Municipal Corporations/Municipalities/Nagar Panchayats. But, no
such action was taken till date. The disinclination of the Government
to handover control/management or control is to the Municipal
Corporations/Municipalities/Nagar Panchayats by order in writing
vide Memo No.ESE02-36/93/2020-GS&GR-CSE dated 22.11.2020
informing all the Regional Joint Directors of School Education and
all the District Educational Officers in the State by the Director,
School Education, Government of Andhra Pradesh, that no action
can be taken for merging of schools functioning under Panchayat Raj
Department existing in the limits of Municipal Corporations/
Municipalities/Nagar Panchayats into Municipal Management, and
therefore, the petitioners cannot claim any writ of mandamus, as
employees of the Municipal Corporations. This Court also considered
an identical issue in Seelam Raghava Reddy v. State of Andhra
Pradesh (referred supra) wherein, this Court considered an identical
MSM,J
WP_20458_2020 & batch
issue and held that, these petitioners are not entitled to claim any
benefit claiming to be the employees of Municipal Corporation and
liable for transfer. The proposal for handing over management of
those schools situated in the erstwhile village panchayats merged
with Municipal Corporations/ Municipalities/Nagar Panchayats has
not taken final shape of decision. Therefore, mere addressing letters
by the Commissioners of Municipal Corporations
/Municipalities/Nagar Panchayats to Commissioner of School
Education is not a ground to grant any relief to these petitioners.
One of the request made by the petitioners is that, as long as
orders are passed by the Commissioner of School Education, Andhra
Pradesh, they shall continue to work in the same schools and for
inaction of the State Government, the petitioners shall not be
suffered, since the petitioners have not completed minimum tenure
in the present station for their transfer in terms of the guidelines,
such direction to continue these petitioners to work in the present
schools till passing of orders in the letters addressed by the
Commissioner of Municipal Corporations/Municipalities/Nagar
Panchayats to the Commissioner of School Education, cannot be
granted, as they are bound by the guidelines issued by
G.O.Ms.No.54 dated 12.10.2020. This Court cannot issue a
direction to take a decision for merger of these schools with the
municipal corporations handing over management/control to the
Municipal Corporations/Municipalities/Nagar Panchayats in the
present writ petitions.
MSM,J
WP_20458_2020 & batch
In view of my discussion in the foregoing paragraphs, the
petitioners in the present writ petitions, as on date, are under the
control of Panchayat Raj Department and while working in the
schools under the Panchayat Raj Department, they are drawing
salary from the same department, thereby, they are bound by
G.O.Ms.No.54 dated 12.10.2020, as these schools are under the
control of Education Department for other purposes. Similarly, the
consequential proceedings issued by the District Educational Officer
shown in the table are binding on these petitioners and
consequently, they are liable to be transferred from one school to
another school which are under the control of Panchayat Raj
Department and under the control of Education Department, subject
to guidelines of transfer contained in G.O.Ms.No.54 dated
12.10.2020.
Accordingly, the point is held against the petitioners and in
favour of the respondents.
P O I N T NO.3
As discussed above, the petitioners are the employees, under
the services of Panchayat Raj Department, as on date, drawing
salary and other benefits from the Panchayat Raj Department.
Hence, the petitioners have to accept the transfer when such transfer
being the incidence of service.
Hence, as long as the petitioners are continuing as employees
of Panchayat Raj Department drawing salary and other benefits in
the schools, while exercising control by the Education Department,
MSM,J
WP_20458_2020 & batch
they are liable to be transferred in terms of the Government Orders
referred above. However, the main contention of the petitioners is
that, in event of their transfer from one school to other, in case the
management/control is given to the corporations, subsequently, they
will be deprived of their right to work in the schools within the
Municipal Corporations/Municipalities/Nagar Panchayats. As on
date, they have no right in praesenti to claim writ of mandamus.
The jurisdiction of Court under Article 226 of Constitution of
India is limited and such power can be exercised only certain
circumstances which are enumerated in "West Bengal Central
School Service Commission v. Abdul Halim4" wherein the Apex
Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of
jurisdiction Under Article 226 of the Constitution of
India does not sit in appeal over an administrative
decision. The Court might only examine the decision
making process to ascertain whether there was such
infirmity in the decision making process, which vitiates
the decision and calls for intervention Under Article
226 of the Constitution of India.
In any case, the High Court exercises its extraordinary
jurisdiction Under Article 226 of the Constitution of
India to enforce a fundamental right or some other
legal right or the performance of some legal duty. To
pass orders in a writ petition, the High Court would
necessarily have to address to itself the question of
whether there has been breach of any fundamental or
legal right of the Petitioner, or whether there has been
lapse in performance by the Respondents of a legal
duty.
The High Court in exercise of its power to issue writs,
directions or orders to any person or authority to
correct quasi-judicial or even administrative decisions
for enforcement of a fundamental or legal right is
obliged to prevent abuse of power and neglect of duty
by public authorities.
In exercise of its power of judicial review, the Court is
to see whether the decision impugned is vitiated by an
apparent error of law. The test to determine whether a
decision is vitiated by error apparent on the face of the
record is whether the error is self-evident on the face
2019 (9) Scale 573
MSM,J
WP_20458_2020 & batch
of the record or whether the error requires examination
or argument to establish it. If an error has to be
established by a process of reasoning, on points where
there may reasonably be two opinions, it cannot be
said to be an error on the face of the record, as held by
this Court in Satyanarayan v. Mallikarjuna reported in
AIR 1960 SC 137. If the provision of a statutory Rule is
reasonably capable of two or more constructions and
one construction has been adopted, the decision would
not be open to interference by the writ Court. It is only
an obvious misinterpretation of a relevant statutory
provision, or ignorance or disregard thereof, or a
decision founded on reasons which are clearly wrong
in law, which can be corrected by the writ Court by
issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide
enough to quash unreasonable orders. If a decision is
so arbitrary and capricious that no reasonable person
could have ever arrived at it, the same is liable to be
struck down by a writ Court. If the decision cannot
rationally be supported by the materials on record, the
same may be regarded as perverse.
However, the power of the Court to examine the
reasonableness of an order of the authorities does not
enable the Court to look into the sufficiency of the
grounds in support of a decision to examine the merits
of the decision, sitting as if in appeal over the decision.
The test is not what the Court considers reasonable or
unreasonable but a decision which the Court thinks
that no reasonable person could have taken, which
has led to manifest injustice. The writ Court does not
interfere, because a decision is not perfect."
Yet issuance of Writ of Mandamus is purely discretionary and
the same cannot be issued as a matter of course.
The petitioner also claimed consequential relief of Writ of
Mandamus, but such relief cannot be granted as a matter of course
as held in "State of Kerala v. A.Lakshmi Kutty5", the Hon'ble
Supreme Court held that a Writ of Mandamus is not a writ of course
or a writ of right but is, as a rule, discretionary. There must be a
judicially enforceable right for the enforcement of which a
mandamus will lie. The legal right to enforce the performance of a
duty must be in the applicant himself. In general, therefore, the
Court will only enforce the performance of statutory duties by public
1986 (4) SCC 632
MSM,J
WP_20458_2020 & batch
bodies on application of a person who can show that he has himself
a legal right to insist on such performance. The existence of a right is
the foundation of the jurisdiction of a Court to issue a writ of
Mandamus.
In "Raisa Begum v. State of U.P.6", the Allahabad High Court
has held that certain conditions have to be satisfied before a writ of
mandamus is issued. The petitioner for a writ of mandamus must
show that he has a legal right to compel the respondent to do or
abstain from doing something. There must be in the petitioner a
right to compel the performance of some duty cast on the
respondents. The duty sought to be enforced must have three
qualities. It must be a duty of public nature created by the provisions
of the Constitution or of a statute or some rule of common law.
Writ of Mandamus cannot be issued merely because, a person
is praying for. One must establish the right first and then he must
seek for the prayer to enforce the said right. If there is failure of duty
by the authorities or inaction, one can approach the Court for a
mandamus. The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.7" the
Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be
issued by the court when the applicant establishes
that he has a legal right to the performance of legal
duty by the party against whom the mandamus is
sought and the said right was subsisting on the date
of the petition."
In "Union of India v. S.B. Vohra8" the Supreme Court
considered the said issue and held that 'for issuing a writ of
1995 All.L.J. 534
(1996) 9 SCC 309
MSM,J
WP_20458_2020 & batch
mandamus in favour of a person, the person claiming, must
establish his legal right in himself. Then only a writ of mandamus
could be issued against a person, who has a legal duty to perform,
but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain9" the
Supreme Court held thus:
"The principles on which a writ of mandamus
can be issued have been stated as under in The Law
of Extraordinary Legal Remedies by F.G. Ferris and
F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a
highly prerogative writ, usually issuing out of the
highest court of general jurisdiction, in the name of
the sovereignty, directed to any natural person,
corporation or inferior court within the jurisdiction,
requiring them to do some particular thing therein
specified, and which appertains to their office or
duty. Generally speaking, it may be said that
mandamus is a summary writ, issuing from the
proper court, commanding the official or board to
which it is addressed to perform some specific legal
duty to which the party applying for the writ is
entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the
exercise of a sound judicial discretion, the
appropriate remedy to enforce a plain, positive,
specific and ministerial duty presently existing and
imposed by law upon officers and others who refuse
or neglect to perform such duty, when there is no
other adequate and specific legal remedy and without
which there would be a failure of justice. The chief
function of the writ is to compel the performance of
public duties prescribed by statute, and to keep
subordinate and inferior bodies and tribunals
exercising public functions within their jurisdictions.
It is not necessary, however, that the duty be
imposed by statute; mandamus lies as well for the
enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its
issuance unquestionably lies in the sound judicial
discretion of the court, subject always to the well
settled principles which have been established by the
courts. An action in mandamus is not governed by
the principles of ordinary litigation where the matters
alleged on one side and not denied on the other are
taken as true, and judgment pronounced thereon as
of course. While mandamus is classed as a legal
remedy, its issuance is largely controlled by equitable
principles. Before granting the writ the court may,
and should, look to the larger public interest which
may be concerned-an interest which private litigants
(2004) 2 SCC 150
(2008) 2 SCC 280
MSM,J
WP_20458_2020 & batch
are apt to overlook when striving for private ends.
The court should act in view of all the existing facts,
and with due regard to the consequences which will
result. It is in every case a discretion dependent upon
all the surrounding facts and circumstances."
When a Writ of Mandamus can be issued, has been
summarized in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or
official in whom a discretionary duty is lodged to
proceed to exercise such discretion, but unless there
is peremptory statutory direction that the duty shall
be performed mandamus will not lie to control or
review the exercise of the discretion of any board,
tribunal or officer, when the act complained of is
either judicial or quasi-judicial unless it clearly
appears that there has been an abuse of discretion
on the part of such Court, board, tribunal or officer,
and in accordance with this rule mandamus may not
be invoked to compel the matter of discretion to be
exercised in any particular way. This principle
applies with full force and effect, however, clearly it
may be made to appear what the decision ought to
be, or even though its conclusion be disputable or,
however, erroneous the conclusion reached may be,
and although there may be no other method of review
or correction provided by law. The discretion must be
exercised according to the established rule where the
action complained has been arbitrary or capricious,
or based on personal, selfish or fraudulent motives,
or on false information, or on total lack of authority
to act, or where it amounts to an evasion of positive
duty, or there has been a refusal to consider
pertinent evidence, hear the parties where so
required, or to entertain any proper question
concerning the exercise of the discretion, or where
the exercise of the discretion is in a manner entirely
futile and known by the officer to be so and there are
other methods which it adopted, would be effective."
(emphasis supplied)
In view of my discussion, the petitioners have no right to
continue to work in the same school or to claim writ of mandamus,
in view of the future contingencies without any right in praesenti.
Therefore, no writ of mandamus can be issued declaring the action of
the respondents as illegal, arbitrary and it does not amount to
violation of Articles 14, 19 and 21 of the Constitution of India, as
transfer is an incidence of service, as held by the Courts in the
MSM,J
WP_20458_2020 & batch
judgments referred supra. Therefore, I hold the point against the
petitioners and in favour of the respondents.
In view of my foregoing findings recorded in Point Nos. 1 to 3,
I am of the considered view that these writ petitioners are not
entitled to claim any relief, even the alternative relief. Hence, I find
no ground to grant the relief as claimed by these petitioners and the
writ petitions are liable to be dismissed.
In the result, writ petitions are dismissed. No costs.
Consequently, miscellaneous petitions pending if any, shall
also stand dismissed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
Date:25.01.2021
SP
