WP/23391/2009 of Government of Andhra Pradesh Vs B.V.N. Malleswarai on 29 December 2009

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

TUESDAY, THE TWENTY NINTH DAY OF DECEMBERTWO THOUSAND AND NINE

PRESENT

THE HON'BLE MR JUSTICE V.ESWARAIAHAND

THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR

WRIT PETITION Nos.23391, 15090, 15087, 15131 and 21026 of 2009 andCONTEMPT CASE Nos.1377, 1378 and 1379 of 2009

BETWEEN

Government of AP, Rep. by its Principal Secretary, Education Department,Secretariat, Hyderabad and others.

AND

…PETITIONERS

B.V.N. Malleswari and others.

…RESPONDENTS

Counsel for the Petitioners: ADDL. ADVOCATE GENERAL

Counsel for the Respondents: MR. P.V. KRISHNAIAH

The Court made the following:

COMMON ORDER:(per Hon’ble Sri Justice Vilas V. Afzulpurkar)

WP.No.23391 of 2009 is filed by the State – respondents 1 to 4 inO.A.No.10431 of 2008 and is directed against the interim order of suspension of G.O.Ms.No.158 School Education (SER.V) Department dated02.12.2008 ordered by the Andhra Pradesh Administrative Tribunal. Theother batch of cases is also related to the same or similar issue arising underdifferent OA’s.

2. For the sake of convenience, the facts in WP.No.23391 of 2009 arebeing referred to for consideration of this entire batch of cases. It is already noticed that this writ petition is directed against an interim orderand in normal course we would not have entertained the writ petition but forthe circumstances that the Andhra Pradesh Administrative Tribunal is unableto take up and decide the OA as well as the vacate petitions moved thereinby the State on account of circumstances beyond it’s control. Para 30 of theaffidavit filed by the State in support of this writ petition gives thecircumstances under which this writ petition is being moved and for the sakeof convenience it would be appropriate to extract Para 30:

“30. It is submitted that as stated above, the Government afterreviewing the entire issue, passed orders vide G.O.Ms.No.158,School Education (Ser.V) Department, dated 02.12.2008 repatriatingthe respondent and others to their respective local cadres. Therespondent being belongs to local cadre of Guntur, she wasrepatriated to Guntur district vide the said G.O. The respondent filedO.A.No.10431 of 2008 questioning the said G.O. before the Hon’bleTribunal and the Hon’ble Tribunal by order dated 15.12.2008 inO.A.No.10431 of 2008 suspended G.O.Ms.No.158, dated 02.12.2008in so far as the respondent is concerned. Number of others who werealso sought to be repatriated by the same G.O. also filed independentOA’s and the Hon’ble Tribunal granted similar orders therein also. The repatriation of the respondent and others was done, as theirrecruitment in Medak district was in violation of Local Cadre Order,the petitioners herein filed detailed counter in the said OA along withVMA.No.1101 of 2009 in the said O.A.No.10431 of 2008 in April2008. Similarly, VMA’s were also filed in the other OA’s filed byother teachers aggrieved by the same G.O.Ms.No.158 dated02.12.2008 and also other GO’s passed for repatriation of certainothers. All these VMA’s have been filed more than six monthsback. But the Hon’ble Tribunal could not take up the same forhearing and could not dispose of the same due to administrative

reasons. When the Government taken up the counseling for transferand for promotion, the respondent and others again approached theTribunal stating that repatriation G.O. itself was suspended by theHon’ble Tribunal. In these OA’s the Government filed VMA’s. But, incertain cases when the teachers filed Contempt Cases, theGovernment preferred WP.No.15090 of 2009 and batch. However, asthe VMA’s filed in O.A.No.10431 of 2008 and other OA’s whereincertain repatriation GO’s were questioned, are posted before the 5Member Bench of the Hon’ble Tribunal, the Government has notpreferred any Writ Petition so far. But, because of pendency and notdisposal of VMA’s filed in the OA’s wherein repatriation orders arequestioned and consequential transfer counseling and promotioncounseling is stalled. Hence, the petitioners herein are preferring thepresent Writ Petition, questioning the interim orders of the Hon’bleTribunal dated 15.12.2008 in O.A.No.10431 of 2009 and seeking forvacation of the said orders, in the circumstances.”

3. The administrative reason mentioned in the paragraph above, we areinformed, is on account of non-availability of Administrative Members for thepurpose of constitution of the Bench in accordance with the procedure rulesof the tribunal. The working of the Andhra Pradesh Administrative Tribunal isregulated by Andhra Pradesh Administrative Tribunals (Procedure) Rules,1989 issued under G.S.R.929 (E) Ministry of Personnel, Public Grievancesand Pensions, Department of Personnel and Training, Government of Indiadated 26.10.1989. Rule 15 thereof is as follows:

Rule 15. Full Bench : - A Full Bench shall be a Bench of anynumber not less than three of the members and the following mattersmay he heard and determined by a Full Bench, namely: -

(i) matters involving the interpretation of any of theprovisions of the Andhra Pradesh PublicEmployment (Organization of Local Cadres andRegulation of Direct Recruitment) Order, 1975 orany Order made thereunder:provisions of the Andhra Pradesh PublicEmployment (Organization of Local Cadres andRegulation of Direct Recruitment) Order, 1975 orany Order made thereunder:

(ii) the matters arising out of the integration of anyservices of the State consequent on the provisionsof the States Reorganization Act, 1956 (37 of 1956);services of the State consequent on the provisionsof the States Reorganization Act, 1956 (37 of 1956);

(iii) any other matter which is assigned to, or referred toit :it :

Provided that in such case or cases where Chairman, having regard to the nature of the questionsinvolved is of the opinion that it requires to be decided by aFull Bench of more than 2 Members, he may do so bygeneral or special orders, as he may deem fit.

We are informed that a reference to Full Bench was made by thetribunal referring O.A.No.10431 of 2008 to Full Bench (learned AdvocateGeneral states that it is referred to a 5 Member Bench) as per theparagraphs referred to above, on the ground that as per Rule 15 the mattersinvolving the interpretation of any provision of the Presidential Order arerequired to be heard by a Full Bench. No such order of the tribunal making areference to Full Bench is placed before us. However, even if we go by theaverments of the State, as extracted above, we do not see any questioninvolving interpretation of the Presidential Order arising in the aforesaid OAor other batch of OA’s.

4. The only question that arises in this OA and batch of OA’s is as towhether an order of repatriation passed against each of the applicant in therespective OA’s is factually justified. As we have discussed in theparagraphs hereinafter, the applicant in O.A.No.10431 of 2008, admittedly,belongs to local area of Guntur district but is appointed as non-local in Medakdistrict. Her identification as liable for repatriation to her own local area isquestioned in the OA on factual grounds apart from the ground of allegedviolation of principles of natural justice. We are, therefore, of the view thatthese OA’s do not involve questions as to the interpretation of thePresidential Order and as such Rule 15 referred to above would not beattracted so far as this batch of OA’s are concerned. Even otherwise, wemay mention that as of now and for the past couple of months, only oneAdministrative Member is working in the tribunal and we are told that he is onlong leave. Even otherwise for the composition of five Member Bench, We are informed, that it would be possible only when fresh AdministrativeMember/Members are appointed. In the interregnum, as the interim orders ofthe tribunal passed in the series of cases following the order in the present case has resulted in complete stalemate of the transfer and promotioncounseling of teachers taken up by the Education Department of theGovernment and remains partially implemented. It is also mentioned in theaffidavit that by virtue of the impugned GO, so far as Medak District isconcerned, under G.O.Ms.No.73 Education Department dated 29.09.2007and G.O.Ms.No.158 School Education Department dated 02.12.2008, 262 non-local teachers working in the district have been repatriated to theirrespective districts and 202 teachers have been relieved and joined at theirplace of transfer whereas about 60 teachers have approached the tribunaland obtained similar interim orders, which are holding the field and onaccount thereof, the entire policy of repatriation of the non-locals to theirrespective local areas, envisaged under the present impugned GO isfrustrated. Thus, it would be evident that the primary grievance of therespondent herein and other applicants before the tribunal is only with regardto their ‘transfer’.

It is also to be noted that as per the impugned GO, Para 4 states as follows:

“4. All the teachers repatriated to their respective local cadres shallbe eligible for TTA and protection of seniority since the transfers aremade in public interest.”

Thus, in view of the fact that the tribunal is unable to take up anddecide the OA’s and/or the applications seeking vacation of the interimorders, We had to entertain the writ petitions and have given adequateopportunity to both sides to make detailed submissions on merits andvirtually the entire batch of OA’s were heard by us on merits and by thisorder we propose to dispose of the OA’s themselves.

5. The background facts leading to issuance of impugnedG.O.Ms.No.158 dated 02.12.2008 are as follows:

(a) It is well known that Article 371-D of the Constitution of Indiaauthorize the President of India to make an order with respect to the State of

Andhra Pradesh, for equitable opportunities and facilities for the peoplebelonging to different parts of the State, in the matter of public employmentand in the matter of education. It was also provided that an order madeunder the aforesaid clause may require the State Government to organizeany class or classes of posts in every service in different local cadres fordifferent parts of the State and allot in accordance with the said principlesand procedure as may be specified in the order, the persons holding suchposts to the local cadres so organized. The relevant portion of Article 371-D

is extracted hereunder:

“371D. Special provisions with respect to the State of AndhraPradesh. –Pradesh. –

(1) The President may, by order made with respect to the State ofAndhra Pradesh provide, having regard to the requirements of theState as a whole, for equitable opportunities and facilities for thepeople belonging to different parts of the State, in the matter ofpublic employment and in the matter of education, and differentprovisions may be made for various parts of the State.Andhra Pradesh provide, having regard to the requirements of theState as a whole, for equitable opportunities and facilities for thepeople belonging to different parts of the State, in the matter ofpublic employment and in the matter of education, and differentprovisions may be made for various parts of the State.

(2) An order made under clause (1) may, in particular, - (a)require the State Government to organize any class orclasses of posts in a civil service of, or any class orclasses of civil posts under, the State into different localcadres for different parts of the State and allot inaccordance with such principal and procedure as may bespecified in the order the persons holding such post tothe local cadres organized;classes of posts in a civil service of, or any class orclasses of civil posts under, the State into different localcadres for different parts of the State and allot inaccordance with such principal and procedure as may bespecified in the order the persons holding such post tothe local cadres organized; (b)specify any part or parts of the State which shall beregarded as the local area -regarded as the local area -

(i) for direct recruitment to posts in any local cadre(whether organized in pursuance of an order underthis article or constituted otherwise) under the StateGovernment;(whether organized in pursuance of an order underthis article or constituted otherwise) under the StateGovernment;

(ii) for direct recruitment to posts in any cadre under any local authority within the State; and

(iii) for the purposes of admission to any Universitywithin the State or to any other educationalinstitution which is subject to the control of the StateGovernment.within the State or to any other educationalinstitution which is subject to the control of the StateGovernment.

…

…

(10) The provisions of this article and of any order made by thePresident thereunder shall have effect notwithstanding anythingin any other provision of this Constitution or in any other law forthe time being in force.President thereunder shall have effect notwithstanding anythingin any other provision of this Constitution or in any other law forthe time being in force.

(b) The extracted portion of the Article 371-D of the Constitutionof India would show that the provisions of this Article and any order madetherein has been given overriding effect. In pursuance of the said powers thePresident of India issued GSR 524 (E) on 18.10.1975, which was re-published under G.O.Ms.No.674 General Administration (SPF.A)Department dated 20.10.1975. The order is called the Andhra Pradesh PublicEmployment (Organization of Local Cadres and Regulation of DirectRecruitment) Order, 1975. The local area defined under clause (2)(1)(c) is asfollows:

“(2)(1)(c) (Local Area) in relation to any local cadre, means the localarea specified in paragraph 6 for direct recruitment to posts in suchlocal cadre, and includes, in respect to posts belonging to thecategory of Civil Assistant Surgeons, the local area specified in sub-paragraph (5) of paragraph 6 of this order; The local cadre defined under clause (2)(1)(e) is as follows:

“(2)(1)(e) (Local Cadre) means any local cadre of posts under theState Government organized in pursuance of paragraph 3, orconstituted otherwise for any part of the State; Under clause (3) the local cadre organization was to be taken by the Government as provided:

“3. Organization of local cadres: - (1) The State Government shallwithin a period twenty-seven months from the commencement of thisOrder, organize classes of posts in the civil services of and classesof civil posts under the State into different local cadres for differentparts of the State to the extent and in the manner, hereinafterprovided.

(* Vide G.O.Ms.Mo.728, G.A. (SPF.A) Dept, dt. 27.10.1977)

Provided that, notwithstanding the expiration of the saidperiod, the President may by order, required the State Government, whenever he considers it expedient so to do, to organize any classesof posts in the civil services of and clauses of civil posts under theState into different local cadres or different parts of the State.

(Vide G.O.Ms.Mo.34, G.A. (SPF.A) Dept, dt. 24.01.1981)

(2) The posts belonging to the category of lower division clerk andeach of the other categories equivalent to or lower then tat of a lowerdivision clerk in each department in each district shall be organizedinto separate cadre.

Explanation: - For the purposes of this sub-paragraph, sub-paragraph(1) of paragraph 6 and sub-paragraph (1) of paragraph 8 a categoryshall be deemed to be equivalent to or lower than that of a lowerdivision clerk if the minimum of the scale of pay of a post belongingto that category or where the post carries a fixed pay, such fixed payis equal to or lower than the minimum of the scale of pay of a lowerdivision clerk.

(3) The posts belonging to each non gazetted category, other thanthose referred to in sub-paragraph (2), in each department ineach zone shall be organized into a separate cadre.those referred to in sub-paragraph (2), in each department ineach zone shall be organized into a separate cadre.

(4) The posts belonging to each specified gazetted category in eachdepartment in each zone shall be organized into a separatecadre.department in each zone shall be organized into a separatecadre.

(5) Notwithstanding anything contained in sub-paragraph (3) and (4),the State Government may where it considered it expedient so todo and with the approval of the Central Government, organizedthe posts belonging to any of the categories referred to therein, inany department, or any establishment thereof, in two or morecontigeous zones into a single cadre.the State Government may where it considered it expedient so todo and with the approval of the Central Government, organizedthe posts belonging to any of the categories referred to therein, inany department, or any establishment thereof, in two or morecontigeous zones into a single cadre.

(6) Notwithstanding anything contained in sub paragraphs (2), (3), (4)and (5), the Central Government; may notify the departments inwhich and the categories of posts for which a separate cadre hasto be organized for the City of Hyderabad and on suchnotification, the posts belonging to each such category in eachsuch department in the said City (other than those concernedwith the administration of areas falling outside, the said City)shall be organized into a separate cadre and the posts soorganized in pursuance of this paragraph or Constitutedotherwise and comprising posts belonging to the category in thatdepartment.

(7) In organizing a separate cadre in respect of any category ofposts in any department for any part of the State, nothing in thisOrder shall be deemed to prevent the State Government, fromorganizing or continuing more than one cadre in respect of suchcategory in such department for such part of the State.posts in any department for any part of the State, nothing in thisOrder shall be deemed to prevent the State Government, fromorganizing or continuing more than one cadre in respect of suchcategory in such department for such part of the State.

(8) Where the Central Government is satisfied that it is notpracticable or expedient to organize local cadres under thisparagraph in respect of any non gazetted category of posts inany department, it may, by notification, make a declaration tothat effect and on such declaration the provisions of thisparagraph shall not apply to such category of posts.practicable or expedient to organize local cadres under thisparagraph in respect of any non gazetted category of posts inany department, it may, by notification, make a declaration tothat effect and on such declaration the provisions of thisparagraph shall not apply to such category of posts.

Under clauses (4) and (5), allotment of such persons to such localcadres was to be undertaken as is provided and transfer of such personsfrom one local cadre to another local cadre was provided whereverconsidered necessary in the public interest. Clauses (4) and (5) areextracted as under:

“4. Allotment of Persons: - (1) Persons holding posts required to beorganized into local cadres shall be allotted to such cadres by theState Government or any officer or authority authorized by it in thisbehalf in accordance with the principles and procedure hereinafterspecified.

(2) In allotting persons to local cadres due regard shall be had to allor any of the following, namely:

(a) the administrative needs of the posts in the local cadres;(b)the need for composition of balanced local cadres withreference to age and seniority groups;(b)the need for composition of balanced local cadres withreference to age and seniority groups;

(c) the length of service of the persons concerned in the partof the State for which the local cadre is organized;of the State for which the local cadre is organized;

(d) knowledge of the persons concerned of the languagespoken and the law in force in the part of the State forwhich the local cadre is organized;spoken and the law in force in the part of the State forwhich the local cadre is organized; (e)preference of the persons concerned for allotment to anylocal cadre, where feasible.local cadre, where feasible.

(3) The State Government may, in respect of different departmentsand different categories of posts, constitute committees to advice onthe allotment of persons to local cadres.

(4) Any person aggrieved by an order allotting him to any local cadremay submit a representation to the State Government within a periodof sixty days from the Date of communication of the order.

(5) The State Government shall on receipt of such representation andafter consultation with the appropriate committee constituted undersub-paragraph (3) make such order as it deems fit.

Provided that wherever such an order is likely to result in the changeof allotment of any other person, no such order shall be made withoutgiving an opportunity to that other person to make a representation.

(6) Every order passed by the State Government under sub-paragraph (5) shall be subject to the provisions of clause (3) ofarticle 371-D of the Constitution of India, be final.

(5) Local Cadres and Transfers of Persons: - (1) Each part of theState, for which a local cadre has been organized in respect of anycategory of posts, shall be a separate unit for purposes ofrecruitment, appointment, discharge, seniority, promotion andtransfer, and such other matters as may be specified by the StateGovernment, in respect of that category of posts.

(2) Nothing in this order shall prevent the State Government frommaking provision for (a)the transfer of a person from any local cadre to any officeof Establishment to which this order does not apply, orVice Versa.of Establishment to which this order does not apply, orVice Versa.

(b) the transfer of a person from local cadre comprising postsin any office or Establishment exercising territorialjurisdiction over a part of the State to any other localcadre comprising posts in such part or Vice Versa.in any office or Establishment exercising territorialjurisdiction over a part of the State to any other localcadre comprising posts in such part or Vice Versa.

(c) the transfer of a person from one local cadre to anotherlocal cadre where no qualified or suitable person isavailable in the latter cadre for where such transfer isotherwise considered necessary in the Public interest.

(d) the transfer of a person from one local cadre to anotherlocal cadre on a reciprocal basis subject to the conditionthat the persons so transferred shall be assigned seniorityin the latter cadre with reference to the date of his transferto that cadre.”

6. (a) In terms of the aforesaid, the State Government issuedG.O.P.Nos.728 and 729 General Administration (SPF.A) Department bothdated 01.11.1975 setting out detailed procedure for organizing various postsin the various departments including teachers in the Education Departmentfor the purpose of organization into local cadres under the Governmentschools and local authorities including the manner and method of providingreservations, zones, etc. including for direct recruitment and based on theaforesaid orders passed, the teachers in each district were organized intolocal cadres.

The aforesaid two GO’s also gave clarificatory instructions regarding theprocedure for implementation of various provisions of the Presidential Order.

(b) However, the implementation of the aforesaid gave rise to seriousdissatisfaction, particularly, among the Telangana Non-Gazetted Officers’ Union, who have represented before theGovernment that several allotments have been made in violations of theaforesaid Presidential Order. The Government, therefore, examined thematter and after wide ranging discussions with the representatives of theunion, entered into an agreement with them on 07.12.1985 where number ofaspects dealing with the implementation of the Presidential Order wereagreed upon and categorized and the Government issued G.O.Ms.No.610General Administration (SPF.A) Department dated 30.12.1985 specifying theregulation required and steps taken therefor and it was generally agreed totake up immediate steps to implement and remove any anomalies existingagainst implementation of the Presidential Order. So far as relevant for ourpurpose, clause (1) of the agreement is as follows:

“(1) The employee allotted after 18.10.1975 to Zone V & VI inviolation of the zonalisation of local cadres under the Six PointFormula will be repatriated to their respective zones by 31.03.1986 bycreating supernumerary posts wherever necessary.”

(c) In pursuance of the Presidential Order, the Government had also issued G.O.Ms.No.763 General Administration (SPF.A) Department dated15.11.1975 providing for procedure and manner for selection of localcandidates. In terms thereof, 80% of the posts under direct recruitment in alldistrict cadres were reserved for local candidates, which is defined underPara 7 of the Presidential Order and the remaining 20% posts were left openfor which locals and non-locals are eligible to be considered on the basis ofcombined merit.

The procedure prescribed under the aforesaid GO was re-examined by theGovernment and G.O.Ms.No.8 General Administration (SPF.A) Departmentdated 08.03.2002 was issued amending Paras 3 and 4 of Annexure I inG.O.P.No.763 dated 15.1.1985. Upon such amendment the procedure wasprescribed to first fill up 20% of the posts by following the combined merit listof locals and non-locals and thereafter, the remaining 80% of the posts to befilled by local candidates.

(d) Based on the instructions under G.O.Ms.No.610 dated 30.12.1985referred to above, the Director of School Education was required to review allthe appointments and to identify excess non-locals for repatriation to theirlocal cadre. The said identifications from all the departments including theSchool Education Department having been completed, so far as RangaReddy and Hyderabad Districts are concerned by a Circular MemoNo.9543/MC/2007-7 dated 21.06.2007 the Government directed theAdministrative Departments to notify the applicants from non-local cadres forrepatriation. Accordingly, after receiving willingness from the non-localteachers working in Hyderabad and Ranga Reddy Districts repatriationsorders for 229 teachers to their respective local cadres was ordered underPara 5(2)(c) of the Presidential Order vide G.O.Ms.No.43 School Education(SER.V) Department dated 30.06.2007. Similarly, all the recruitments ofteachers made through District Selection Committees (DSC’s) 2000 – 2003were also reviewed and similar orders were issued under impugnedG.O.Ms.No.158 dated 02.12.2008 and G.O.Ms.No.73 dated 29.09.2007.

(e) By the aforesaid orders, by exercising powers under Para 5(2)(c)of the Presidential Order, in public interest, under G.O.Ms.No.158 dated02.12.2008 repatriation of 73 teachers from DSC-2000, 58 teachers fromDSC-2001, 1 teacher from DSC-2002 and 1 teacher from DSC-2003aggregating to 133 teachers was ordered as per the list appended to the saidGO as annexure. As already extracted above, clause (4) protected seniorityof all such teachers and they were eligible for TTA. The name of therespondent herein appears at Sl.No.42 of annexure to the said GO, whichshows that she was selected in OC(W) category and the post to which shewas selected was backlog vacancy reserved for locals under DSC-2000 andthat though she belongs to Guntur local area, she was appointed in MedakDistrict. As stated above, the said orders as to repatriation have beenimplemented substantially and only to the extent of some of the teachersincluding the respondent herein, who approached the tribunal, the saidrepatriation orders could not be implemented and with the result suchidentified teachers are continuing in the same zone in which they wereappointed in violation of the Presidential Order.

7. It is, at this stage, that the respondent moved the tribunal inO.A.No.10431 of 2008 challenging the aforesaid G.O.Ms.No.158 dated02.12.2008 and by the impugned order of the tribunal dated 15.12.2008, whileadmitting the OA the impugned G.O.Ms.No.158 dated 02.12.2008 wassuspended, insofar as the applicant is concerned.

8. Subsequently, the respondents 1 to 7 in WP.No.15090 of 2009approached the tribunal by filing O.A.No.894 of 2009 claiming that therepatriation orders having been suspended, the State is bound to considertheir case for promotion to the post of School Assistant as per seniority andfor consequential directions. The sixth respondent herein is the applicant inO.A.No.10431 of 2008 referred to above and similar orders stayingrepatriation were obtained by other respondents herein by individuallyapproaching the tribunal and obtained similar orders of suspension of the

repatriation GO to the extent of each the applicant therein. Based on theabove, they had filed fresh O.A.No.894 of 2009 seeking direction forconsideration of their cases for promotion. By order of the tribunal dated28.01.2009, which is impugned in the aforesaid writ petition, while admittingthe OA directions were issued to the officials (petitioners in the writ petition)to consider the case of the applicants/respondents 1 to 7 in the writ petitionfor promotion to the post of School Assistant as per seniority by permittingthem to participate in the promotion counseling. However, the promotionorders need not be given.

9. Meanwhile, the Government had issued MemoNo.5822/SE.II.1/2006-3 dated 12.03.2008 wherein the Director of SchoolEducation was requested to process the promotion of SGT eligible teachersother than those, who are out of Hyderabad District, transferred underG.O.Ms.No.610 dated 30.12.1985, who are continuing under the interimorder of the Courts of law. Questioning the said memo, a batch of OA’s inO.A.No.2080 of 2008 and batch was filed before the tribunal and by order ofthe tribunal dated 24.03.2008 the aforesaid memo of the Government wassuspended. The Government was also directed to review the promotionsalready made based on the aforesaid memo. Further, any promotions madebased on the impugned memo were also suspended and liberty was given tothe Government to conduct fresh counseling for promotion without excludingthe individuals in respect of whom orders of repatriation have beensuspended by the tribunal. The aforesaid order was questioned by the Statein WP.No.6249 of 2009 and a Division Bench of this Court, where one of us,[Hon’ble Sri Justice V. Eswaraiah], was a party, dismissed the writ petitionfollowing connected WP.No.11832 of 2009 dated 19.06.2009 with a liberty tothe Government to approach the tribunal for filing necessary application forvacation of interim order and the tribunal was requested to dispose of all thematters.

10. The respondent in WP.No.15087 of 2009 approached the tribunal by a fresh O.A.No.7968 of 2009 seeking declaration that action of the writpetitioners in affecting promotions and posting in pursuance of counseling isillegal and arbitrary and for consequential directions restraining the petitionersfrom affecting promotions, posting and conducting counseling for the post ofSchool Assistant in Medak District, without issuing promotion and postingorder to the said applicant in Medak District and interim relief restraining thepetitioners herein not to issue any promotion or posting order or conductcounseling till the applicant is given promotional order in Medak District asSchool Assistant was sought for. By order dated 17.07.2009 the tribunalreferred to its earlier order in O.A.No.2080 of 2008 dated 24.03.2008, referredto in the paragraph above, while admitting the OA passed the followinginterim order:

“Pending further orders, the respondents are directed to pass orders,promoting the applicant and similarly placed persons as SchoolAssistant/Head Master and the transfer of the applicant shall beconsidered along with the transfer of other candidates as per transfercounseling rules.”

On the ground that the said order is not being implemented therespondent in this writ petition (applicant in O.A.No.7968 of 2009) filedcontempt application in C.A.No.577 of 2009 before the tribunal and thetribunal passed the following interim order in CMA.No.168 of 2009 inC.A.No.577 of 2009 on 22.07.2009:

“In the light of the above circumstances, there shall be an interimdirection not to give posting orders for the candidates of DSC-2009counseling in the districts in which the applicant and similarly placedpersons are working till their promotion and counseling process iscompleted and posting orders are given to the applicant and similarlyplaced persons and those who previously participated in thepromotion counseling.”

11. The tribunal, thereafter, passed a further order on 24.07.2009 in theaforesaid CMA.No.168 of 2009 duly correcting certain typographicalmistakes, which occurred in the order dated 22.07.20098 and so far as the relevant words ‘2009-DSC counseling’ mentioned in the order were deletedand substituted by the words ‘transfer counseling’. The word ‘DSC’ wasdeleted by substituting the word ‘transfer’ whereby the order was applicableto 2009 transfer counseling and not 2009-DSC counseling. The tribunal wasinformed on the same day that posting orders of the transferees have beendispatched prior to the aforesaid orders. It was explained to the tribunal thatthe word ‘DSC counseling’ mentioned in the earlier order on 22.07.2009 leadto some confusion, which resulted in dispatch of the posting orders on theunderstanding that the said orders did not relate to transfer counseling. However, the tribunal did not agree with the said explanation and directedthat the Director of School Education, Government of AP, shall be presentbefore the tribunal on the next date of hearing and explain as to how the saidorder was understood by him. Meanwhile, the respondents in the aforesaidcontempt case were further directed not to effect any transfers and postingson the basis of the transfer counseling of School Assistant, which is nowgoing on and postings given after receiving the orders of the tribunal shallalso be kept in abeyance, CMA stands disposed of. The aforesaid orders ofthe tribunal dated 22.07.2009 and 24.07.2009 were questioned by therespondents in the said contempt case, in WP.No.15087 of 2009 and a Division Bench of this Court by order dated28.07.2009 passed the order with operative portion as follows:

“VE, J & PSR, J

WPMP.No.19829 of 2009INWP.No.15087 of 2009

Heard.

Pending passing of the orders in the other batch of writ petitions i.e.WP.Nos.15090, 15092, 15131 and 15164 of 2009, the order dated24.07.2009 in CMA.No.168of 2009 in CA.No.577 of 2009 inO.A.No.7968 of 2009 passed by the A.P. Administrative Tribunal,Hyderabad, directing the respondent No.3 therein i.e. the Director ofSchool Education, Government of A.P., Hyderabad (petitioner No.6herein) to appear before the tribunal on 29.07.2009 and to explain tothe tribunal about the manner in which the order of the tribunal dated”22.07.2009 understood, is stayed.

12. The respondents in O.A.No.7968 of 2009, referred to in the paragraphabove, have questioned the interim order of the tribunal dated 17.07.2009referred to in the above paragraph by filing WP.No.15131 of 2009 and aDivision Bench of this Court, where one of us, Hon’ble Sri Justice V.Eswaraiah, was a party, has passed a comprehensive order on 04.08.2009by referring to various contentions of either side as requiring detailed hearingand in the circumstances, admitted the writ petition along with connectedWP.Nos.15090 and 15087 of 2009. On the same day, the Division Benchalso passed detailed reasoned order in all the miscellaneous petitions forstay/suspension in the aforesaid writ petitions filed by the State/Officialrespondents in the OA. Paragraphs 10, 11 and 12 of the said order dated04.08.2009 are extracted herein:

“10. Having regard to the facts of the case, we are of the prima facieopinion that by reason of the aforesaid interim orders, manifestinjustice would be caused to the issue of implementation of thePresidential Order. Not only that in fact several schools would sufferfor want of teachers thereby effecting the entire system of schooleducation. The whole grievance of the applicants is only with regardto the promotions. Whether the promotion has to be given first andthe transfer counseling has to be taken later is immaterial in so far asthe implementation of the Presidential Order is concerned. Theapplicant in the O.A. cannot be said to suffer irreparable loss, whencompared to the loss that is going to be caused to the scheme ofimplementation of G.O.Ms.No.610 and also to the school education. We are of the opinion that by grant of interim orders, a serioussituation has arisen, whereby a single individual or may be a fewwant to effect the entire system not only of educationaladministration, but even teaching in several schools.

11. The grievance of the applicants before the Tribunal is that theyare entitled for promotion as per their seniority.

The issue of promotion as per their seniority and entitlement isdistinct and separate from that of the transfer policy pursuant to theorders issued by the Government in G.O.Ms.No.610, dated30.12.1985 for implementation of the Presidential Order. Therefore,both actions shall go on independently. Merely because the applicants are transferred, it cannot be said that they are not entitledfor promotion. Therefore, we are of the opinion that the authoritiesshall consider the cases of the applicants for their promotionindependently. Transfer of all the employees who are liable to betransferred shall go on in accordance with the circulars and norms. The applicants shall not be deprived of their promotions for anyreason and their promotions shall be considered on par with othersimilarly situated employees, in accordance with their seniority andentitlement, without any discrimination.

12. Having regard to the facts of the case, we deem it appropriate tosuspend the operation of the impugned orders of the Tribunal dated28.01.2009 in O.A.894/2009, 17.07.2009 in O.A.7968/2009 andorders dated 22.07.2009 & 24.07.2009 in CMA.168/2009 inCA.577/2009 in O.A.7968/2009. Accordingly, these three WPMPs areordered granting interim suspension, as prayed for, pending furtherorders.”

As Para 11 of the aforesaid order has given rise to three contemptcases, which are detailed below.

C.C.Nos.1377, 1378 and 1379 of 2009:

13. (a) C.C.No.1377 of 2009 is filed by the applicant in O.A.No.894 of 2008regarding the interim order dated 28.01.2009, which is the subject matter ofWP.No.15090 of 2009 referred to above.

(b) C.C.No.1378 of 2009 is filed by the applicant in O.A.No.7968 of2009 regarding interim order dated 17.07.2009 passed therein, which is thesubject matter of WP.No.15131 of 2009 referred to above.

(c) C.C.No.1379 of 2009 is also filed by applicant in CMA.No.168 of2009 in C.A.No.577 of 2009 in O.A.No.7968 of 2009 regarding the interimorders dated 22.07.2009 and 24.07.2009 against which WP.No.15087 is filedby the respondent-State, which is already separately discussed as above.

All the aforesaid three contempt cases are filed complaining disobedience of Para 11 of the order of the Division Bench of this Courtdated 04.08.2009, which is referred to and extracted above.

14. The respondent in this batch of cases has also filed WP.No.21026 of2009 seeking a Writ of Mandamus declaring the action of the respondent i.e.the State and its officials in withholding her promotion of SGT whilepromoting her juniors as School Assistants on the sole ground that she isaffected by G.O.Ms.No.610 dated 30.12.1985 as arbitrary and illegal and fora consequential direction to forthwith consider and promote her as SchoolAssistant. When initially we heard the writ petition on 25.09.2009 at the stageof admission, we have recorded a prima facie opinion that since the matterrelates to service, the concerned State Government employee has to firstapproach the tribunal for relief before approaching this Court. The said writpetition was subsequently adjourned and is coming up for hearing along withthis batch of cases and has been heard accordingly.

15. However, suffice it to notice that all the OA’s and writ petitions ariseout of consequential proceedings after the impugned order, which is thesubject matter of WP.No.23391 of 2009 referred to in the beginning of thisorder, therefore, the disposal of the said writ petition would consequentlydispose all these matters as well.

16. We shall, therefore, deal with WP.No.23391 of 2009 based on which allthe subsequent OA’s and writ petitions have arisen. We have heard theAdditional Advocate General and Mr. P.V. Krishnaiah, learned counselappearing for the petitioners and the contesting respondent respectively.

17. It is contended by the learned Additional Advocate General that theorders impugned, which are ex parte interim orders, pending O.A.No.10431of 2008, which has suspended the repatriation GO to the extent of theapplicant, has completely frustrated the policy of the Government and stepstaken by the Government for implementation of the Presidential Order. He

also pointed out that the Presidential Order and particularly Para 5(2)(c) hadto be implemented and for that purpose, G.O.Ms.No.610 dated 30.12.1985was issued ordering repatriation of the employees appointed in deviation ofthe Presidential Order. Further, the Government orders and memosincluding G.O.Ms.No.8 dated 08.03.2002, G.O.Ms.No.124 dated 07.03.2002,G.O.Ms.No.43 dated 30.06.2007 and G.O.Ms.No.674 dated 07.09.2007 toreview all appointments under direct recruitment was undertaken. The saidexercise of identification of such appointments made in violation of thePresidential Order was duly taken up by a review by Director of SchoolEducation and so far as Hyderabad and Ranga Reddy Districts areconcerned, the identified non-locals were repatriated to the respective localareas vide G.O.Ms.No.43 dated 30.06.2007 referred to above. Similarexercise was done so far as Medak District is concerned and similarG.O.Ms.No.73 dated 20.09.2007 and G.O.Ms.No.158 dated 02.12.2008, thelater being impugned, in the OA’s was issued. He points out that no otherGO is questioned by the applicant but only G.O.Ms.No.158 dated 02.12.2008is questioned. He submits that policy as to appointments on local cadreshaving being violated the repatriation of such appointees and their transfer tothe local area to which they belong, is contemplated under Para 5(2)(c) of thePresidential Order itself, the same being not only in accordance with thepublic interest, was also necessary so as to ensure the implementation ofthe Presidential Order.

18. Accordingly, he submits that the interim order of the tribunal stayingthe said GO to the extent of applicant before it amounts to frustrating thePresidential Order itself. He, therefore, submits that the impugnedG.O.Ms.No.158 dated 02.12.2008 is only a consequential GO and as such,the interim order of the tribunal and various further orders, which are passedat various stages in different OA’s and contempt applications as are subjectmatters of this batch of cases, is completely unwarranted and has resulted inimmense harm to the public interest. He submits that even in the said repatriation as ordered, the seniority of the candidate repatriated remainsunaffected. Further, the TTA is admissible on such transfers and as such, no prejudice is being caused to the candidate repatriated inasmuch as thecandidate is being sent to the local cadre to which the candidate belongs.

19. Learned Additional Advocate General has relied upon the counteraffidavit field on behalf of the State before the tribunal in the said OA togetherwith application seeking vacation of the said interim order and pointed outthat the aforesaid exercise in issue G.O.Ms.No.158 dated 02.12.2008 istaken up only in terms of Para 5(2)(c) of the Presidential Order in publicinterest and that majority of the repatriated teachers have already beenrelieved and have joined at the place of local cadre in their respectivedistricts.

20. During the hearing of this matter, when we had pointed certain vagueand obscure areas in the stand of the Government as reflected from thecounter affidavit before the tribunal and the affidavit in support of the writpetition, the learned Additional Advocate General sought leave of the Courtand had filed additional affidavit and produced the original records based onwhich the said affidavit was filed. It is averred in Paras 5 and 6 of theadditional affidavit as follows:

“5. It is submitted that though the posts of Secondary GradeTeachers are continued to be the District Cadre posts by virtue ofG.O.Ms.No.529, Education, dated 14.05.1976, but as the saidcategory of Secondary Grade Teacher is fallen within the purview ofsub-para 2(a) of Para.8 of the Presidential Order, the ration 70:30between the locals and non-locals was applied up to 2000. TheGovernment issued G.O.Ms.No.224, General Administration (SPF-A)Department, dated 30.06.2000 specifically applying PresidentialOrder for direct recruitment to all the posts under A.P. SchoolEducation Subordinate Services and all other similar/equivalentcategories of posts of teachers in any department of the StateGovernment and further issued G.O.Ms.No.71, Education (SE-Ser.VI) Department, dated 30.06.2000 withdrawing the posts ofSchool Assistants in Government Schools from the purview of A.P.Public Service Commission. The aforesaid G.O.Ms.No.224, dated 30.06.2000 has been given retrospective effect w.e.f. 1.1.1994. It issubmitted that the School Education Department has beenimplementing the Presidential Order all through and the Governmentin order to avoid ambiguity issued G.O.Ms.No.224, dated 30.6.2000specifically brining the posts of Education Department underPresidential Order.

6 . It is further submitted that when the Government noticed thatappointments made in certain departments in certain categories ofposts were in deviation of the Presidential Order, issued orders inG.O.Ms.No.610 General Administration (SPF) Department, dated30.12.1985 for repatriation of employees appointed in deviation toPresidential Order, 1975.

The Government again issued G.O.Ms.No.674, GeneralAdministration (MC.II) Department, dated 07.09.2007 for review ofappointments made in deviation to the Presidential Order, wherein itwas stated that the ratio between locals and non-locals was to beapplied for the posts of Secondary Grade Teachers and SchoolAssistants as 80:20 and directed to review the appointments as perthe said ratio. In pursuance of the same, the Government issuedvarious G.Os including impugned G.O.Ms.No.158, School EducationDepartment, dated 02.12.2008 reviewing all the appointments madew.e.f. 1975 onwards in the ratio of 80:20 and passed orders forrepatriation of teachers who were found in excess of the said ratioand who appointed against the vacancies meant for local cadres.”

21. So far as the contesting respondent herein is concerned, Para 9 of theadditional affidavit mentions that she belongs to Guntur local area but wasselected and appointed as SGT in DSC-2000 in Medak District and posted atUpper Primary School, Chintalghat, Kohir Mandal, Medak District. Paras 9and 10 of the said affidavit are appropriate to be extracted as under:

“9 . It is submitted that the respondent herein was selected asSecondary Grade Teacher in DSC 2000 of Medak district and postedat U.P. School, Chintalghat Village, Kohir Mandal. A total number of1374 Secondary Grade Teacher posts are notified for DSC 2000 inMedak District. Out of the said 1374 posts (Telugu), backlogvacancies pertaining to the local cadre of DSC 1998 are 635. Again65 Secondary Grade Teacher posts pertaining to DSC 1998 whichwere also meant for local cadre and though persons equivalent to thesaid posts were selected in DSC 1998, but their appointments werekept in abeyance due to Court cases. Hence, the remaining posts pertaining to DSC 2000 are only 674. Out of the said 674, 80% aremeant for local cadres and 20% are meant for open category, thatcomes to 539:135. The break-up is as follows.

Total posts notified for SGT category : 1374Backlog vacancies : 635Unfilled vacancies of DSC 1998 : 65Current vacancies of DSC 2000 : 674Out of 674, 80% for local cadres : 539Out of 674, 20% for open category : 135

Out of the aforesaid posts, the posts of 65 pertaining to DSC 1998and whose appointments were kept in abeyance though notified once-again in DSC 2000 but appointments for persons who were selectedin DSC 1998 itself are issued along with the persons selected in DSC2000. The respondent whose native district is Guntur belongs to thelocal cadre of the said district. However, she was selected against abacklog vacancy of DSC 1998 in violation of the Presidential Order. The general merit list rank is 337 and according to the same, shewould not have been selected at all for any post in DSC 2000. However, she was appointed against a backlog vacancy of DSC 1998meant for local cadres. Hence, her initial appointment is in violationof the Presidential Order. However, the Government only transferredher from Medak district to her native district of Guntur. Transfer is anincident of service and no employee can refuse to work at any placewherever she/he is posted.

10. The petitioner BVN. Malleshwari a Non-local candidate wasselected against the SGT posts under OC(W) Local quota and hername was written in the Roster Register of DSC 1998 under backlogvacancies of OC(W) Local post, as it was followed all the vacanciesagainst the roster points which are unfilled in DSC 1998 are left blankin DSC 1998 roster register – IV & V, subsequently against theunfilled roster points of DSC 1998, name, community, Local/non-localstatus & DSC to which the candidate pertains to, of the selectedcandidate was mentioned in the Roster Register.”

22. The learned Additional Advocate General, therefore, submits that therespondent, who is a non-local candidate, was selected and appointed underbacklog vacancy pertaining to DSC-1998 under OC (W) local quota atRoster Point 50, Cycle No. XVIII of DSC – 1998. The said additional affidavit has annexed the notification and GO’s including the DSC notification of theyear 2000 as appended, the respondent having been appointed in the said DSC selections 2000, noteI and II of the said notification are relevant and extracted herein:

“Note: -

(i) The rule of reservation to local candidates is applicable.(j)The rule of special representation in the matter ofappointment of candidates belonging to ScheduledCastes, Scheduled Tribes, Backward Classes, PHC andWomen is applicable as per the orders issued inG.O.Ms.No.65 G.A.D., dt. 15.02.1997.”(j)The rule of special representation in the matter ofappointment of candidates belonging to ScheduledCastes, Scheduled Tribes, Backward Classes, PHC andWomen is applicable as per the orders issued inG.O.Ms.No.65 G.A.D., dt. 15.02.1997.”

23. While the respondent has filed counter affidavit to the writ petition, noadditional counter affidavit has been filed to the extent of the said additionalaffidavit. In the said counter filed, the respondent contends that in the saidDSC-2000 selections 1374 posts of SGT (Telugu) were notified in MedakDistrict and on the date of recruitment 70% of the posts were reserved forlocal candidates and 30% were in open category. She further submits thatshe was selected as SGT in the open category on the basis of merit rankingand while she was appointed under the proceedings dated 08.11.2000, herservices were regularized by order dated 24.07.2004. It is also contendedthat the ratio between the locals and non-locals was changed from 70:30 to80:20 under G.O.Ms.No.2 dated 03.01.2002 and G.O.Ms.No.8 dated08.03.2002 whereas she was appointed two year prior thereto and as such,under the subsequent categorization of proportion to 80:20 it cannot be saidthat the respondent is a non-local candidate occupying the post situatedunder local area. It is, therefore, asserted that, keeping in view, the availableproportion of 70:30 on the date of appointment, the appointment of therespondent being within 30% available for open category, there is no violationof the Presidential Order and as such, the orders of the her repatriation as inthe impugned GO, is clearly unsustainable.

24. Learned counsel for the respondent, on the aforesaid ground,justified the order passed by the tribunal. He also contended that the impugned order of repatriation violated the principles of natural justice alsoand in spite of the suspension of the said GO, her case is not beingconsidered for promotion to the post of School Assistant only on the groundthat she stands repatriated under the impugned GO. Learned counsel for therespondent, therefore, contends that the respondent had to approach thetribunal for consideration of her case for promotion and in spite of the interimorder passed by the tribunal in the second instance also the said orderremained unimplemented by the authorities. It is also contended that thestand of the petitioners that the respondent was appointed in the backlogvacancy of the local candidate is not substantiated. He also submits that thenotification of 2000 did not mention about the backlog vacancy separately. Itis also contended that even if there is any violation in her appointmentagainst backlog vacancy, the petitioners ought to have rectified and adjustedthe same as several subsequent DSC’s were conducted and repatriation atthis distance of time after 8 years of appointment is not justifiable. Learnedcounsel also contended that the carry forward rule is not available to thebacklog vacancies after three years and in any case, the writ petition beingdirected against an interim order of the tribunal, this Court ought not tointerfere.

25. We have considered the contentions on either side and we have heardthis batch of cases on several dates before finally concluding the hearing on11.12.2009.

26. At the outset, it has to be pointed out that in this entire batch of cases,the respondent has not questioned any of the earlier GO’s as mentioned bythe learned Additional Advocate General and only the present consequentialG.O.Ms.No.158 dated 02.12.2008 is questioned. Further, annexure to thesaid impugned GO itself categorically mentions that the appointment of therespondent was in a backlog vacancy reserved for locals. Admittedly, shedoes not belong to the local area of Medak District but belongs to Gunturlocal area.

The present exercise of identification and repatriation is in terms of themandate of the Presidential Order under Para 5(2)(c) and is in public interest.It is, therefore, evident that any order interdicting the impugned GO wouldcertainly frustrate the Presidential mandate, as rightly contended by the learned Additional Advocate General.

27. Further, the pleadings of the respondent in O.A.No.10431 of 2008shows that in the said OA in para 6(a) the respondent admits that she hasstudied up to 10[th] class in Guntur District and she is in the local cadre ofGuntur District. It is her specific case in the said para and subsequent parasthat in the DSC – 2000 she was selected for the post of SGT as non-localcandidate against clear vacancy of 30% open category. The basis of the saidOA, therefore, was that her identification as liable for repatriation, is basedupon the ratio of the locals and non-locals being treated as 80:20 as against70:30, which was in force at the time of her recruitment in DSC-2000.

As mentioned above, though the annexure to the GO impugned herein itselfmentions that the respondent was appointed in local backlog vacancy, thesaid aspect was not contraverted in the OA. In fact, there is no referencewith regard to the said local backlog category in which she was appointed. Itis, therefore, to be concluded that the respondent did not contravert herstatus as being appointed in a backlog local vacancy.

28. Consequent on the above, the proportion of 70:30 between thelocals and non-locals as contended by the respondent or the revisedproportion of 80:20 as contended by the petitioners is really of no relevancewhen the appointment of the respondent itself is against the vacancyreserved for locals. During the hearing, the learned counsel for therespondent raised a contention that the said impugned GO is issued basedupon the exercise of identification said to have been done by the Director ofSchool Education, which is mentioned as reference 4 in the impugned GO.

He submitted that the said proceeding has not been produced by thepetitioners.

29. We had, therefore, directed the learned Additional Advocate General toproduce the said proceedings and the same is accordingly produced dulygiving a copy to the respondent. The Director of School Education under theaforesaid proceedings bearing Lr.Rc.No.3734/F1-1/2008 dated 27.11.2008addressed to the Principal Secretary to the Government, School EducationDepartment, AP, mentioning that based on verifications and informationfurnished by the District Education Officer has submitted that repatriation ofnon-local teachers, who are appointed in DSC-2000 & 2001 were not tracedout earlier but are now traced out and a list of 134 teachers was furnished.Learned Additional Advocate General also produced the original rosterregister and a Xerox thereof, was also furnished to us and to the respondent,which specifically shows that the vacancy in which the respondent wasappointed was earmarked as OC (W) local quota at Roster Point 50, CycleNo. XVIII of DSC – 1998 and the same was carried forward and filled by therespondent in DSC – 2000. This would also answer the other contention ofthe learned counsel for the respondent that the said backlog vacancy iscarried forward for more than three years and as such, the contention of thelearned counsel for the respondent is liable to be rejected.

30. With respect to the contention of the learned counsel for therespondent that the said impugned GO violates the principles of naturaljustice, as countenanced by the learned Additional Advocate General bystating that all the earlier GO’s which are referred to are, in fact, covered by the policy decision of the State under G.O.Ms.No.610dated 30.12.1985, which in turn is based upon the Presidential Order. Theimplementation of the said policy, therefore, is not required to be preceded byany notice. We are also of the view and it is now well settled that principles ofnatural justice cannot apply in straightjacket formula in each and everysituation. Even if a prior notice had been given in the present case, the fact situation being the admitted appointment of the respondent against areserved local post, no useful purpose would have been served as the saidfactual aspect, as stated above, is not contraverted even in the OA nor couldhave been contraverted by the respondent in the reply to such a notice, if ithad been given. The formality of notice would have been wholly redundantand unnecessary on the facts and circumstances of the present case. Thecontention of the respondent, therefore, that the principles of natural justiceare violated is also liable to be rejected.

31. Learned counsel for the respondent also raised a contention thatthe repatriation, which is ordered under the impugned GO is alsounsustainable, as the said term would presuppose that the employee hadworked earlier at the place of repatriation and since the respondent has, fromthe beginning, worked in Medak District, there is no question of herrepatriation to Guntur District. It is true that the respondent has beenappointed and is working in Medak District from the beginning, the wordrepatriation in the impugned GO is, therefore, not used in the sense in whichit is understood in the service jurisprudence. The said repatriation as orderedin the impugned GO only means and refers to relegating the respondent tothe local area to which she belongs so as to bring her appointment inconformity with the Presidential Order. The said impugned proceedings,therefore, merely amounts to transferring her to her local area to which shebelongs. As mentioned above, while affecting the said transfer she is not putto any prejudice as she is being relegated to her own local area and herseniority is protected. The transfer of an employee being an incidence ofservice, the tribunal or the Court would normally be reluctant to interfere withthe same unless exceptional grounds of want of jurisdiction or malafides ismade out. None of the said grounds are either alleged or exist on the factsand circumstances of the present case. We are, therefore, of the view thatthere was no warrant for the tribunal to interfere with the impugned GOespecially as it was issued so as to implement the mandate under the Presidential Order.

32. Reliance is placed by the learned counsel for the respondent on aFull Bench decision of this Court in G. ANANTHA REDDY v. ANDHRAPRADESH ADMINISTRATIVE TRIBUNAL[[1]]and particularly Para 76thereof.

33. It is also brought to our notice that the Honourable Supreme Court inCivil Appeal No.5141 of 2002 dated 09.10.2009 reversed the conclusions ofthe Full Bench so far as conclusions (b) (c) and (d) as recorded in the saidjudgment. The issue involved in the aforesaid decision is entirely differentfrom the one arising in this batch of cases. The said decision, therefore, is ofno assistance to the learned counsel for the respondent.

34. We are, therefore, of the view that the O.A.No.10431 of 2008 filed bythe respondent before the tribunal is itself misconceived and is liable to bedismissed and is accordingly dismissed. Consequently, the interim orderpassed by the tribunal on 15.12.2008 suspending G.O.Ms.No.158 dated02.12.2008 so far as the applicant/respondent herein is concerned standsvacated.

WP.No.23391 of 2009 filed by the State is accordingly allowed.

WP.Nos.15090, 15087 and 15131 of 2009:

35. As mentioned above, the decision in this batch of cases depends uponand is consequent upon the decision in WP.No.23391 of 2009. However, itis necessary to deal with one principal contention raised by the learnedcounsel for the respondent regarding maintainability of these writ petitions.

36. Learned counsel contends that the orders impugned in the writpetition being WP.No.15087 of 2009 field against the directions of the tribunalin contempt miscellaneous application being CMA.No.168 of 2009 in

C.A.No.577 of 2009. Learned counsel submits that the said impugned ordersare passed by the tribunal in exercise of its contempt jurisdiction underSection 17 of the Administrative Tribunals Act.

He, therefore, submits that in the light of the two Division Bench judgments ofthis Court a remedy before this Court under Article 226 of the Constitution ofIndia is not available and as such, the said writ petitions are notmaintainable. He has placed reliance upon judgment of the Supreme Courtin T. SUDHAKAR PRASAD v. GOVERNMENT OF A.P.[[2]]and judgmentof a Division Bench of this Court in CH. RAMA RAO v. STATE OFA.P.[[3]] and an unreported judgment of another Division Bench of thisCourt in W.P.No.24744 of 2003 and batch dated 03.12.2004.

37. Learned Advocate General, while refuting the said contention, hasplaced reliance upon decisions of the Supreme Court in PURUSHOTAMDASS GOEL v. HON’BLE MR. JUSTICE B. S. DHILLON ANDOTHERS[[4]]and R.N. DEY v. BHAGYABATI PRAMANIK[[5]]and hasdistinguished the decisions in SUDHAKAR PRASAD’s case (2 supra) andCH. RAMA RAO’s case (3 supra).

38. Section 19 of the Contempt of Courts Act provides an appealagainst any order or decision of the High Court in exercise of its jurisdictionto punish for contempt. The above provision was considered and interpretedby the Supreme Court in several decisions but for our purposes it would beuseful to notice the decision of the Supreme Court in STATE OFMAHARASHTRA v. MAHBOOB S. ALLIBHOY[[6]]. The following extractthereof from para 3 thereof would clearly show the distinction pointed out.

“3…As sub-section (1) of Section 19 provides that an appeal shall lieas of right from any order, an impression is created that an appealhas been provided under the said sub-section against any orderpassed by the High Court while exercising the jurisdiction ofcontempt proceedings. The words ‘any order’ has to be read with theexpression ‘decision’ used in said sub-section which the High Courtas of right from any order, an impression is created that an appealhas been provided under the said sub-section against any orderpassed by the High Court while exercising the jurisdiction ofcontempt proceedings. The words ‘any order’ has to be read with theexpression ‘decision’ used in said sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. ‘Anyorder’ is not independent of the expression ‘decision’. They havebeen put in an alternative form saying ‘order’ or ‘decision’. In eithercase, it must be in the nature of punishment for contempt. If theexpression ‘any order’ is read independently of the ‘decision’ then anappeal shall lie under sub-section (1) of Section 19 even against anyinterlocutory order passed in a proceeding for contempt by the HighCourt which shall lead to a ridiculous result.”

I n PURUSHOTAM DASS GOEL’s case (4 supra) the relevantportion of para 3 is as follows:

“3…No appeal can lie as a matter of right from any kind of ordermade by the High Court in the proceeding for contempt. Theproceeding is initiated under Section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in thesaid proceeding by the High Court. It could not be the intention of thelegislature to provide for an appeal to this Court as a matter of rightfrom each and every such order made by the High Court…”

The Supreme Court in SUDHAKAR PRASAD’s case (2 supra) heldat para 17 as under:

“17…The need for enacting Section 17 arose, firstly, to avoid doubts,and secondly, because the Tribunals are not “courts of record”. While holding the proceedings under Section 17 of the Act thetribunal remains a tribunal and so would be amenable to thejurisdiction of the High Court under Articles 226/227 of theConstitution subject to the well-established rules of self-restraintgoverning the discretion of the High Court to interfere with thepending proceedings and upset the interim or interlocutory orders ofthe tribunals. However, an order or decision of the tribunal punishingfor contempt shall be appelable only to the Supreme Court within 60days from the date of the order appealed against in view of thespecific provision contained in Section 19 of the Contempt of CourtsAct, 1971 read with Section 17 of the Administrative Tribunals Act,1985.”

In CH. RAMA RAO’s case (3 supra), the decision of PURUSHOTAMDASS GOEL’s case (4 supra) was noticed and the Division Bench of thisCourt in para 25 made a significant observation, which is quoted below:

“25. The matter would have been otherwise dealt with, had we cometo the conclusion that the appeal was not maintainable or the tribunalhad acted without jurisdiction in passing the impugned order…”

Even in R.N. DEY’s case (5 supra) the ratio of PURUSHOTAMDASS GOEL’s case (4 supra) is followed and the said question ofmaintainability of appeal was not required to be decided.

39. So far the unreported decision of a Division Bench of this Court,referred to above, is concerned; it is, no doubt, true that the said writ petitionswere rightly not entertained by the Division Bench as under Section 17 of theContempt of Courts Act, an appeal lay against the impugned order therein.The impugned order dated 20.11.2003 in the said decision was extracted atpage Nos.7 and 8 of the said judgment wherein the tribunal had punished thecontemnor to undergo 15 days simple imprisonment and Rs.200/- fine, indefault 3 days jail. Subsequent to the passing of the aforesaid said, thecontemnor agreed to implement the orders and thereafter, the affidavits ofthe complainants were received in the shape of an undertaking to comply. Itis the aforesaid, which was in question before the Division Bench. Since thecontemnor was clearly punished by the said order, the Division Bench rightlysaid that only an appeal under Section 19 is maintainable against theaforesaid order. The facts, therefore, in the above decision aredistinguishable form the facts of the present case. In view of the ratio of thedecision of the Supreme Court in PURUSHOTAM DASS GOEL’s case (4supra) and STATE OF MAHARASHTRA’s case (6 supra), the impugnedorders in the cases on hand being not one punishing the contemnor, it cannotbe said that an appeal lies under Section 19 of the Contempt of Courts Act.Consequently, therefore, these writ petitions are maintainable and theobjections in that regard raised by the learned counsel for the respondent isliable to be rejected.

Consequently, therefore, in view of our decision in WP.No.23391 of

Consequently, therefore, in view of our decision in WP.No.23391 of 2009 above, WP.Nos.15087 and 15131 of 2009 also deserve to be allowedand are accordingly allowed. Insofar as WP.No.15090 of 2009 is concerned,respondent No.6 is the applicant No.6 in O.A.No.894 of 2009 and she soughtfor a direction along with others to consider their cases forthwith forpromotion to the post of School Assistant as per their seniority as SGT inMedak District. The OA’s said to have been filed by others challengingsimilar repatriation orders are not mentioned in the OA. The repatriationorders of B.V.N. Malleswari in G.O.Ms.No.158 dated 02.12.2008 asquestioned in O.A.No.10431 of 2008 are held to be legal and valid andtherefore, WP.No.23391 of 2009 filed against the order of the tribunal dated12.12.2008 in O.A.No.10431 of 2008 is allowed and the OA also isdismissed. Therefore, the grievance of R6 in WP.No.15090 of 2009 and inO.A.No.894 of 2009 does not survive and We, therefore, allow WP.No.15090of 2009 insofar as R6 is concerned against her and OA.No.894 of 2009stands dismissed insofar as applicant No.6 therein is concerned.

WP.No.21026 of 2009:

40. As already mentioned above, firstly a Writ of Mandamus does not lieand secondly, invocation of jurisdiction of this Court directly does not arisewhen the subject matter relates to service dispute amenable exclusively tothe jurisdiction of the tribunal. Thirdly, the relief sought for and the issueinvolved does not any more survive in view of our decision in WP.No.23391of 2009. This writ petition is, therefore, clearly misconceived and liable to bedismissed on more than one grounds.

Accordingly, the writ petition is dismissed.

C.C.Nos.1377, 1378 and 1379 of 2009:

41. In view of our order in WP.No.23391 of 2009, the very basis of thesubsequent OA’s and directions therein stands negatived. Para 11 of the order of the Division Bench of this Court dated 04.08.2009 was interim innature and secondly the said order has to be read in entirety along withParas 10 and 12 thereof. Once the petitioner in a contempt case wasrelegated to her local area, the counseling with regard to her promotion hasto be within the same local area where she is transferred. The orders of thetribunal, in any case, were suspended by this Court by same order dated04.08.2009. However, the observations in Para 11 of the order of the DivisionBench, which is the subject matter of these contempt cases does notsurvive on its own without a conjoint reading of the said entire order.

42. We are, therefore, of the view that the contempt cases are alsomisconceived and in any case, they do not survive after our decision inWP.No.23391 of 2009.

The contempt cases are accordingly dismissed.

In the result, WP.Nos.23391, 15090, 15087 and 15131 of 2009 filed bythe State are allowed and WP.No.21026 of 2009 and C.C.Nos.1377, 1378and 1379 of 2009 filed by the respondent are dismissed. There shall be noorder as to costs.

______________

V. ESWARAIAH, J

December , 2009DSK

_____________________

VILAS V. AFZULPURKAR, J

[1]2002 (1) ALD 4[2](2001) 1 SCC 516[3]2001 (4) ALD 554[4](1978) 2 SCC 370

[5](2000) 4 SCC 400[6]1996 (4) SUPREME 55