Settibhaktuni Hemalatha, vs The State Of Andhra Pradesh
2021 Latest Caselaw 2390 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

    WRIT PETITION Nos.11631; 11469; 11470; 11734;

          11913; 11959; 11994 and 12007 of 2021

COMMON ORDER:

       Challenging the action of the 2nd respondent in issuing

Proceedings Rc.No.13029/11/2021-EST 3, dated 15.06.2021,

directing the 3rd respondent to conduct counselling from

16.06.2021 onwards by restricting the petitioners to choose

places only from the leftover vacancies in Category III & IV

schools, the present batch of Writ Petitions are filed by the

petitioners.


      This Court has heard Smt. KavithaGottipati, learned

counsel for the petitioners in this batch of cases, and the

learned Government Pleader for Services-III appearing for the

respondents.

      The arguments were heard with the consent of both the

learned counsels in one matter i.e., W.P.No.11631 of 2021.

      Learned counsel for the petitioners points out that in

the earlier litigation a batch of writ petitions filed by the

teachers / present petitioners with "similarly placed others"

were dismissed.   A Writ Appeal was filed against the said

orders. In the Writ Appeal, during the course of hearing the

learned Advocate General, on the basis of instructions

submitted that certain procedures would be followed for

conducting further counselling for the teachers.    This was
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recorded in para-20 of the Writ Appeal order. Based upon the

said submissions of the learned Advocate General and other

issues the Writ Appeals were dismissed subject to certain

observations which are made in para 31 with regard to the

instructions received by the learned Advocate General. The

grievance of the petitioners before this Court is that the

procedure stipulated in line with what was recorded in the

Division Bench order has not been followed in the subsequent

counselling.     Therefore, a Writ of Mandamus is sought

declaring the action of the respondents in issuing proceedings

dated 15.06.2021, which according to the learned counsel,

are totally contrary to the facts recorded in the Writ Appeal.

     In reply to this learned Government Pleader for services

argues that the interpretation placed by the respondents-

State, on instructions which are recorded, is correct. It is his

submission that the learned Advocate General on behalf of

the State agreed to conduct counselling only for the leftover

vacancies.     It is his contention that the impugned memo is

issued strictly in accordance with the said instructions which

are recorded by the Division Bench of this Court. He points

out that the impugned proceedings referring to Kadapa

District are correct in all respects and that in order to avoid

the transfers the petitioners, who have already worked for

more than the stipulated period, are attempting to stall the

entire proceedings.    On the basis of material filed along with
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the counter affidavit, the Government Pleader argues that

even though the State has given one more opportunity to the

petitioners to give their choices in the counselling they are

stalling the procedure in one way or the other. Therefore, he

argues that this is not a case for this Court to interfere.

COURT:
       In the opinion of this Court the short and simple

question that arises for consideration in this batch of cases is

whether the procedure indicated by the learned Advocate

General and recorded by the Division Bench is followed or

not?

       If para 20 of the order of the Division Bench in

W.A.No.80 of 2021 is taken into consideration and the

instructions of the learned Advocate General as recorded are

broken down into component parts,the following will be clear

-

(1) The appellants would be retained in their place till the

next academic year;

(2) Between 16.06.2021 and 30.06.2021 the counselling

will be undertaken for the 411 teachers, who are

involved in the appeals to be accommodated in the left

over vacancies.

(3) The teachers who have completed more than 8 years of

service in one place will be transferred based upon

counselling as per the procedure laid down in

G.O.Ms.No.54.

(4) Teachers will be given the option to choose from the

leftover vacancies.

(5) There are 497 schools that have become teacher-less

and the teachers in this batch of cases will be posted to

those schools through counselling.

(6) Teachers would be given one more opportunity to

participate in the counselling so that they would have a

wider range of options.

(7) Even teachers, who have not completed two years of

service (and who are not eligible for transfer) would be

given an option if they go to the teacher-less schools at

present.

Later in para-31 of the judgment the following is

reiterated -

"31. Before parting, we would like to observe that notwithstanding the dismissal of the writ appeals, the respondents would scrupulously follow the submissions and concessions of the learned Advocate General, based on instructions received, which are recorded in paragraph 20 of the present judgment."

G.O.Ms.No.54, which is relied upon by the learned

counsel for the petitioners and which is annexed as material

paper by both the parties in the Writ Petition and in the

counter affidavit, is not in doubt. Guideline 4 of the said G.O.

says that all the transfers shall be processed only by

application filed and the options exercised through an online

process. Guideline 6 of the G.O. talks of the points that would

be awarded for service as on the 1st October of every year in

areas and towns, which are classified as categories I, II, III

and IV. In Guideline 11 of the G.O. the notification of

vacancies is given 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 guidelines 2.

                   (c) Resultant      vacancies        arising         during
                      counselling.

(d) Vacancies existing due to authorized / 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. They can be filled up by work adjustment, if the period is beyond 4 weeks.

(f) The committee shall arrive at the number of vacancies i.e. the difference between sanctioned and working in each cadre."

Guideline 13 makes it clear that the processing of

applications shall be online and only applications received

through the website shall be considered for transfer.

Guideline 13 (vi) also states that the provisional seniority list

will first be prepared and put up, the objections will be invited

and after redressing the objections the final seniority list

along with the points will be put up in the final seniority list.

The transfer orders will also be issued by the competent

authorities in one single proceedings (Guideline No.17 (i)].

Guideline 17 (ii) talks about compulsory transfer of those

teachers, Headmasters, who do not apply for counselling, and

will be posted in the Category III and IV vacancies at the end

of the counselling.

The essential grievance of the petitioners is that in

terms of Guideline No.6 there are four categories of

habitations / towns where schools are located. These are

described as Categories I, II, III and IV postings. Different

rates of HRA etc., is payable for these four separate

categories.

As per Guideline 11 the procedure stipulated is that all

clear transfers, vacancies should be exhibited, after that the

vacancies arising during the compulsory transfer should be

exhibited followed by vacancies arising during counselling

and vacancies due to unauthorized absence of teachers and

the leave period vacancies like maternity leave, medical leave

etc. This, according to the petitioners, has not been followed

and in the impugned order as can be seen in clause 2, it is

stated as follows:

"2. In this connection, all the Regional Joint Directors of School Education and all the District Educational Officers in the State are instructed to follow the following instructions:

i) the teachers (who have completed 8 years in same school and come under compulsory transfer but

continued with Hon'ble Court orders) will be given option to choose from the left over vacancies in the transfer counselling (teacher less schools/single teacher needy schools in category-IV & III) by conducting counselling and place them in opted places between 16.06.2021 and 30.06.2021(as per the norms of G.O.ms.No.54 dated 12.10.2020) by way of counselling.

ii) Inform the concerned teachers that they shall be given one more opportunity to exercise their options once again in the ensuing transfer counselling, even though they do not complete two years of service as per the directions of Hon'ble High Court.

iii) fill up the vacancies arose due to shifting of said teachers from the schools located in Municipal limits through work adjustment until further orders."

A plain reading shows teachers will have to choose from

the left over vacancies in Category IV and III only (as per the

impugned G.O.). Learned counsel, in the opinion of this

Court, rightly pointed out that the procedure stipulated in

Guideline 11 of G.O.Ms.No.54 is not followed. It is not clear

why Category I and II are not included. It is also not clear

why all the vacancies are not notified in terms of Guideline 11

of G.O.Ms.No.54 and only Category III/IV are mentioned.

Even after hearing the arguments it is not very clear if all the

leftover vacancies are clearly displayed and the procedure

stipulated in Guideline No.11 of G.O.Ms.No.54 are followed or

not. The petitioners have come on record and filed their

affidavits wherein they clearly mentioned that the web

counselling has not been followed and that only Category III

and IV schools are being notified and given as an option. The

counter affidavit filed does not really amplify or clarify the

situation. No material is filed to show that we-counselling

was done. It is not clear if there are only teacher-less

schools in category III and IV only. Along with the counter

affidavit an annexure is filed which is initially signed by the

District Educational Officer, Kadapa. In addition, during the

course of hearing the learned Government Pleader submitted

another annexure to this Court which was signed by the same

officer. He also supplied a copy of the same to the learned

counsel for the petitioners. In Serial No.3 of the first

annexure filed for YSR Kadapa District for S.A. Physics a total

of 8 leftover vacancies were notified after completion of the

transfer counselling. Of these 3 are in category II and 5 are

in category III. In the leftover vacancies displayed column,

(while dealing with the proceedings dated 15.06.2021), total

2/two vacancies were shown in category III. In the other two

categories no vacancies are available as per this document.

However, the subsequent document filed by the respondents,

which is again signed by the District Educational Officer,

shows that for the S.A. Physics in YSR Kadapa District

(S.No.3) the total leftover vacancies are 4 after completion of

transfer counselling. These vacancies are in Category III only.

In category II of the second list the vacancies are zero.

Whereas in the first list annexed to the counter in Category II

there are three vacancies. How these two figures of 3 in

category II and 5 in category III (in total 8) became four/4

(total) in category III is not explained. Equally interesting is

the second part of the column of the annexure In both the

documents as mentioned earlier, the leftover vacancies that

were displayed as per the proceedings dated 15.06.2021 are

two/2 in category III (in the annexure annexed to the

counter). But the same has become four vacancies, in total,

all of which occur in Category III in the 2nd annexure. This is

also not at all explained.

Hence, after considering the documents,pleadings and

the submissions made this Court is of the opinion that the

undertaking that was given to a Court is not followed.An

undertaking given to a Court and which is recorded in the

order of the Division Bench has to be followed both in its

letter and spirit and very very scrupulously. There cannot be

even an iota of diversion. The Division Bench in fact noted in

paragraph 31 that the respondents should "scrupulously

follow the submissions and concessions". In the opinion of

this Court the instructions are not followed scrupulously and

completely. This Court is, therefore, of the opinion that the

petitioners have made out a case for interference.

Accordingly, there shall be direction as prayed for. The

action of the respondents in issuing proceedings dated

15.06.2021 limiting the counselling to categories III and IV is

set aside. It is held to be contrary to the guidelines

prescribed in G.O.Ms.No.54 and also the orders passed in

W.A.No.80 of 2021 and Batch. The respondents are therefore

directed to immediately carry out fresh counselling strictly in

terms of G.O.Ms.No.54 and the instructions recorded in the

order of the Division Bench.

With the above observations the Writ Petitions are

allowed. No order as to costs.

Consequently, the Miscellaneous Applications pending,

if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:14.07.2021.

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