IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.23391, 15090, 15087, 15131 and 21026 of 2009 and CONTEMPT CASE Nos.1377, 1378 and 1379 of 2009 BETWEEN Government of AP, Rep. by its Principal Secretary, Education Department, Secretariat, Hyderabad and others. …PETITIONERS AND 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 in O.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 dated 02.12.2008 ordered by the Andhra Pradesh Administrative Tribunal. The other batch of cases is also related to the same or similar issue arising under different OA’s. 2. For the sake of convenience, the facts in WP.No.23391 of 2009 are being referred to for consideration of this entire batch of cases. It is already noticed that this writ petition is directed against an interim order and in normal course we would not have entertained the writ petition but for the circumstances that the Andhra Pradesh Administrative Tribunal is unable to take up and decide the OA as well as the vacate petitions moved therein by the State on account of circumstances beyond it’s control. Para 30 of the affidavit filed by the State in support of this writ petition gives the circumstances under which this writ petition is being moved and for the sake of convenience it would be appropriate to extract Para 30: “30. It is submitted that as stated above, the Government after reviewing the entire issue, passed orders vide G.O.Ms.No.158, School Education (Ser.V) Department, dated 02.12.2008 repatriating the respondent and others to their respective local cadres. The respondent being belongs to local cadre of Guntur, she was repatriated to Guntur district vide the said G.O. The respondent filed O.A.No.10431 of 2008 questioning the said G.O. before the Hon’ble Tribunal and the Hon’ble Tribunal by order dated 15.12.2008 in O.A.No.10431 of 2008 suspended G.O.Ms.No.158, dated 02.12.2008 in so far as the respondent is concerned. Number of others who were also sought to be repatriated by the same G.O. also filed independent OA’s and the Hon’ble Tribunal granted similar orders therein also. The repatriation of the respondent and others was done, as their recruitment in Medak district was in violation of Local Cadre Order, the petitioners herein filed detailed counter in the said OA along with VMA.No.1101 of 2009 in the said O.A.No.10431 of 2008 in April 2008. Similarly, VMA’s were also filed in the other OA’s filed by other teachers aggrieved by the same G.O.Ms.No.158 dated 02.12.2008 and also other GO’s passed for repatriation of certain others. All these VMA’s have been filed more than six months back. But the Hon’ble Tribunal could not take up the same for hearing and could not dispose of the same due to administrative reasons. When the Government taken up the counseling for transfer and for promotion, the respondent and others again approached the Tribunal stating that repatriation G.O. itself was suspended by the Hon’ble Tribunal. In these OA’s the Government filed VMA’s. But, in certain cases when the teachers filed Contempt Cases, the Government preferred WP.No.15090 of 2009 and batch. However, as the VMA’s filed in O.A.No.10431 of 2008 and other OA’s wherein certain repatriation GO’s were questioned, are posted before the 5 Member Bench of the Hon’ble Tribunal, the Government has not preferred any Writ Petition so far. But, because of pendency and not disposal of VMA’s filed in the OA’s wherein repatriation orders are questioned and consequential transfer counseling and promotion counseling is stalled. Hence, the petitioners herein are preferring the present Writ Petition, questioning the interim orders of the Hon’ble Tribunal dated 15.12.2008 in O.A.No.10431 of 2009 and seeking for vacation of the said orders, in the circumstances.” 3. The administrative reason mentioned in the paragraph above, we are informed, is on account of non-availability of Administrative Members for the purpose of constitution of the Bench in accordance with the procedure rules of the tribunal. The working of the Andhra Pradesh Administrative Tribunal is regulated by Andhra Pradesh Administrative Tribunals (Procedure) Rules, 1989 issued under G.S.R.929 (E) Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India dated 26.10.1989. Rule 15 thereof is as follows: Rule 15. Full Bench : - A Full Bench shall be a Bench of any number not less than three of the members and the following matters may he heard and determined by a Full Bench, namely: - (i) matters involving the interpretation of any of the provisions of the Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 or any Order made thereunder: (ii) the matters arising out of the integration of any services of the State consequent on the provisions of the States Reorganization Act, 1956 (37 of 1956); (iii) any other matter which is assigned to, or referred to it : Provided that in such case or cases where Chairman, having regard to the nature of the questions involved is of the opinion that it requires to be decided by a Full Bench of more than 2 Members, he may do so by general or special orders, as he may deem fit. We are informed that a reference to Full Bench was made by the tribunal referring O.A.No.10431 of 2008 to Full Bench (learned Advocate General states that it is referred to a 5 Member Bench) as per the paragraphs referred to above, on the ground that as per Rule 15 the matters involving the interpretation of any provision of the Presidential Order are required to be heard by a Full Bench. No such order of the tribunal making a reference to Full Bench is placed before us. However, even if we go by the averments of the State, as extracted above, we do not see any question involving interpretation of the Presidential Order arising in the aforesaid OA or other batch of OA’s. 4. The only question that arises in this OA and batch of OA’s is as to whether an order of repatriation passed against each of the applicant in the respective OA’s is factually justified. As we have discussed in the paragraphs 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 Medak district. Her identification as liable for repatriation to her own local area is questioned in the OA on factual grounds apart from the ground of alleged violation of principles of natural justice. We are, therefore, of the view that these OA’s do not involve questions as to the interpretation of the Presidential Order and as such Rule 15 referred to above would not be attracted so far as this batch of OA’s are concerned. Even otherwise, we may mention that as of now and for the past couple of months, only one Administrative Member is working in the tribunal and we are told that he is on long leave. Even otherwise for the composition of five Member Bench, We are informed, that it would be possible only when fresh Administrative Member/Members are appointed. In the interregnum, as the interim orders of the tribunal passed in the series of cases following the order in the present case has resulted in complete stalemate of the transfer and promotion counseling of teachers taken up by the Education Department of the Government and remains partially implemented. It is also mentioned in the affidavit that by virtue of the impugned GO, so far as Medak District is concerned, under G.O.Ms.No.73 Education Department dated 29.09.2007 and G.O.Ms.No.158 School Education Department dated 02.12.2008, 262 non-local teachers working in the district have been repatriated to their respective districts and 202 teachers have been relieved and joined at their place of transfer whereas about 60 teachers have approached the tribunal and obtained similar interim orders, which are holding the field and on account thereof, the entire policy of repatriation of the non-locals to their respective local areas, envisaged under the present impugned GO is frustrated. Thus, it would be evident that the primary grievance of the respondent herein and other applicants before the tribunal is only with regard to 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 shall be eligible for TTA and protection of seniority since the transfers are made in public interest.” Thus, in view of the fact that the tribunal is unable to take up and decide the OA’s and/or the applications seeking vacation of the interim orders, We had to entertain the writ petitions and have given adequate opportunity to both sides to make detailed submissions on merits and virtually the entire batch of OA’s were heard by us on merits and by this order we propose to dispose of the OA’s themselves. 5. The background facts leading to issuance of impugned G.O.Ms.No.158 dated 02.12.2008 are as follows: (a) It is well known that Article 371-D of the Constitution of India authorize the President of India to make an order with respect to the State of Andhra Pradesh, for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of education. It was also provided that an order made under the aforesaid clause may require the State Government to organize any class or classes of posts in every service in different local cadres for different parts of the State and allot in accordance with the said principles and procedure as may be specified in the order, the persons holding such posts 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 Andhra Pradesh. – (1) The President may, by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of education, and different provisions 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 or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principal and procedure as may be specified in the order the persons holding such post to the local cadres organized; (b) specify any part or parts of the State which shall be regarded as the local area - (i) for direct recruitment to posts in any local cadre (whether organized in pursuance of an order under this article or constituted otherwise) under the State Government; (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 University within the State or to any other educational institution which is subject to the control of the State Government. … … (10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. (b) The extracted portion of the Article 371-D of the Constitution of India would show that the provisions of this Article and any order made therein has been given overriding effect. In pursuance of the said powers the President 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 Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975. The local area defined under clause (2)(1)(c) is as follows: “(2)(1)(c) (Local Area) in relation to any local cadre, means the local area specified in paragraph 6 for direct recruitment to posts in such local cadre, and includes, in respect to posts belonging to the category 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 the State Government organized in pursuance of paragraph 3, or constituted 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 shall within a period twenty-seven months from the commencement of this Order, organize classes of posts in the civil services of and classes of civil posts under the State into different local cadres for different parts of the State to the extent and in the manner, hereinafter provided. (* Vide G.O.Ms.Mo.728, G.A. (SPF.A) Dept, dt. 27.10.1977) Provided that, notwithstanding the expiration of the said period, the President may by order, required the State Government, whenever he considers it expedient so to do, to organize any classes of posts in the civil services of and clauses of civil posts under the State 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 and each of the other categories equivalent to or lower then tat of a lower division clerk in each department in each district shall be organized into separate cadre. Explanation: - For the purposes of this sub-paragraph, sub-paragraph (1) of paragraph 6 and sub-paragraph (1) of paragraph 8 a category shall be deemed to be equivalent to or lower than that of a lower division clerk if the minimum of the scale of pay of a post belonging to that category or where the post carries a fixed pay, such fixed pay is equal to or lower than the minimum of the scale of pay of a lower division clerk. (3) The posts belonging to each non gazetted category, other than those referred to in sub-paragraph (2), in each department in each zone shall be organized into a separate cadre. (4) The posts belonging to each specified gazetted category in each department in each zone shall be organized into a separate cadre. (5) Notwithstanding anything contained in sub-paragraph (3) and (4), the State Government may where it considered it expedient so to do and with the approval of the Central Government, organized the posts belonging to any of the categories referred to therein, in any department, or any establishment thereof, in two or more contigeous zones into a single cadre. (6) Notwithstanding anything contained in sub paragraphs (2), (3), (4) and (5), the Central Government; may notify the departments in which and the categories of posts for which a separate cadre has to be organized for the City of Hyderabad and on such notification, the posts belonging to each such category in each such department in the said City (other than those concerned with the administration of areas falling outside, the said City) shall be organized into a separate cadre and the posts so organized in pursuance of this paragraph or Constituted otherwise and comprising posts belonging to the category in that department. (7) In organizing a separate cadre in respect of any category of posts in any department for any part of the State, nothing in this Order shall be deemed to prevent the State Government, from organizing or continuing more than one cadre in respect of such category in such department for such part of the State. (8) Where the Central Government is satisfied that it is not practicable or expedient to organize local cadres under this paragraph in respect of any non gazetted category of posts in any department, it may, by notification, make a declaration to that effect and on such declaration the provisions of this paragraph shall not apply to such category of posts. Under clauses (4) and (5), allotment of such persons to such local cadres was to be undertaken as is provided and transfer of such persons from one local cadre to another local cadre was provided wherever considered necessary in the public interest. Clauses (4) and (5) are extracted as under: “4. Allotment of Persons: - (1) Persons holding posts required to be organized into local cadres shall be allotted to such cadres by the State Government or any officer or authority authorized by it in this behalf in accordance with the principles and procedure hereinafter specified. (2) In allotting persons to local cadres due regard shall be had to all or 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 with reference to age and seniority groups; (c) the length of service of the persons concerned in the part of the State for which the local cadre is organized; (d) knowledge of the persons concerned of the language spoken and the law in force in the part of the State for which the local cadre is organized; (e) preference of the persons concerned for allotment to any local cadre, where feasible. (3) The State Government may, in respect of different departments and different categories of posts, constitute committees to advice on the allotment of persons to local cadres. (4) Any person aggrieved by an order allotting him to any local cadre may submit a representation to the State Government within a period of sixty days from the Date of communication of the order. (5) The State Government shall on receipt of such representation and after consultation with the appropriate committee constituted under sub-paragraph (3) make such order as it deems fit. Provided that wherever such an order is likely to result in the change of allotment of any other person, no such order shall be made without giving 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) of article 371-D of the Constitution of India, be final. (5) Local Cadres and Transfers of Persons: - (1) Each part of the State, for which a local cadre has been organized in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government, in respect of that category of posts. (2) Nothing in this order shall prevent the State Government from making provision for (a) the transfer of a person from any local cadre to any office of Establishment to which this order does not apply, or Vice Versa. (b) the transfer of a person from local cadre comprising posts in any office or Establishment exercising territorial jurisdiction over a part of the State to any other local cadre comprising posts in such part or Vice Versa. (c) the transfer of a person from one local cadre to another local cadre where no qualified or suitable person is available in the latter cadre for where such transfer is otherwise considered necessary in the Public interest. (d) the transfer of a person from one local cadre to another local cadre on a reciprocal basis subject to the condition that the persons so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre.” 6. (a) In terms of the aforesaid, the State Government issued G.O.P.Nos.728 and 729 General Administration (SPF.A) Department both dated 01.11.1975 setting out detailed procedure for organizing various posts in the various departments including teachers in the Education Department for the purpose of organization into local cadres under the Government schools and local authorities including the manner and method of providing reservations, zones, etc. including for direct recruitment and based on the aforesaid orders passed, the teachers in each district were organized into local cadres. The aforesaid two GO’s also gave clarificatory instructions regarding the procedure for implementation of various provisions of the Presidential Order. (b) However, the implementation of the aforesaid gave rise to serious dissatisfaction, particularly, among the Telangana Non-Gazetted Officers’ Union, who have represented before the Government that several allotments have been made in violations of the aforesaid Presidential Order. The Government, therefore, examined the matter and after wide ranging discussions with the representatives of the union, entered into an agreement with them on 07.12.1985 where number of aspects dealing with the implementation of the Presidential Order were agreed upon and categorized and the Government issued G.O.Ms.No.610 General Administration (SPF.A) Department dated 30.12.1985 specifying the regulation required and steps taken therefor and it was generally agreed to take up immediate steps to implement and remove any anomalies existing against implementation of the Presidential Order. So far as relevant for our purpose, clause (1) of the agreement is as follows: “(1) The employee allotted after 18.10.1975 to Zone V & VI in violation of the zonalisation of local cadres under the Six Point Formula will be repatriated to their respective zones by 31.03.1986 by creating 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 dated 15.11.1975 providing for procedure and manner for selection of local candidates. In terms thereof, 80% of the posts under direct recruitment in all district cadres were reserved for local candidates, which is defined under Para 7 of the Presidential Order and the remaining 20% posts were left open for which locals and non-locals are eligible to be considered on the basis of combined merit. The procedure prescribed under the aforesaid GO was re-examined by the Government and G.O.Ms.No.8 General Administration (SPF.A) Department dated 08.03.2002 was issued amending Paras 3 and 4 of Annexure I in G.O.P.No.763 dated 15.1.1985. Upon such amendment the procedure was prescribed to first fill up 20% of the posts by following the combined merit list of locals and non-locals and thereafter, the remaining 80% of the posts to be filled by local candidates. (d) Based on the instructions under G.O.Ms.No.610 dated 30.12.1985 referred to above, the Director of School Education was required to review all the appointments and to identify excess non-locals for repatriation to their local cadre. The said identifications from all the departments including the School Education Department having been completed, so far as Ranga Reddy and Hyderabad Districts are concerned by a Circular Memo No.9543/MC/2007-7 dated 21.06.2007 the Government directed the Administrative Departments to notify the applicants from non-local cadres for repatriation. Accordingly, after receiving willingness from the non-local teachers working in Hyderabad and Ranga Reddy Districts repatriations orders for 229 teachers to their respective local cadres was ordered under Para 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 of teachers made through District Selection Committees (DSC’s) 2000 – 2003 were also reviewed and similar orders were issued under impugned G.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 dated 02.12.2008 repatriation of 73 teachers from DSC-2000, 58 teachers from DSC-2001, 1 teacher from DSC-2002 and 1 teacher from DSC-2003 aggregating to 133 teachers was ordered as per the list appended to the said GO as annexure. As already extracted above, clause (4) protected seniority of all such teachers and they were eligible for TTA. The name