THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.20456 OF 2009 Dated: 10.03.2010 Between: V. Bheema Rao .. Petitioner And 1. Andhra Pradesh Social Welfare Residential Educational Institutions Society (APSWREIS), rep. by its Secretary, Masab Tank, Hyderabad, and others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.20456 OF 2009 ORDER: This writ petition is filed seeking a declaration that the order passed by the 2nd respondent dated 18.09.2009 whereunder the petitioner was posted back to A.P.S.W.R.S. (B), Parvathipuram, Vizianagaram District as arbitrary, illegal and without jurisdiction and for a consequential direction to continue him at APSWRS/JC (B), Srikrishnapuram, Visakhapatnam in terms of the earlier order dated 28.08.2009. The facts, in brief, are as under : The petitioner and the 5th respondent herein are working as PGT (English) in A.P. Social Welfare Residential Educational Institutions Society (for short, ‘1st respondent Society’). Under G.O.Rt.No.470, SW(RS.I) Department, dated 26.06.2009, while approving the transfer guidelines to the teaching and non-teaching staff working under the 1st respondent Society, the Government directed the Secretary of the 1st respondent society to take action to conduct counselling for the year 2009-2010. Accordingly, by proceedings dated 8.7.2009 counselling schedule was announced by the 1st respondent society and for Zone- 1, it was fixed on 14.7.2009. By that time, the petitioner was working as PGT (English) at APSWRS (Boys), Parvathipuram, Vizianagaram District, whereas the 5th respondent was working as PGT (English) at ACWRS, Kokkirapalli, Visakhapatnam District which is a Girls’ Institution. Both the petitioner and the 5th respondent did not complete the maximum period of five years at their respective places. However, they made requests for transfer opting for APSWRS/JC(B), Srikrishnapuram, Visakhapatnam as first choice. It is to be noticed that as per Rule 11 of the approved guidelines regulating transfer of staff in the 1st respondent society for the year 2009-2010, the teaching and non-teaching staff who applied for transfer shall be awarded points which are called “entitlement of points” taking into consideration the aspects specified therein. The petitioner states that he had secured 29 points of entitlement where as the 5th respondent secured 17 points. It is alleged that ignoring the preference to which he is entitled to as per the entitlement points secured, the 5th respondent was called for the counselling at the first instance on 14.07.2009 and the vacancy at APSWRS/JC(B), Srikrishnapuram, Visakhapatnam was filled up as per his option. Consequently the petitioner was retained at his original place i.e., APSWRS, Parvathipuram. Aggrieved by the same, the petitioner preferred an Appeal before the 2nd respondent in terms of Rule 21 of the Guidelines. Having considered the same, the 2nd respondent, by order, dated 28.08.2009, retained the 5th respondent at APSWRS/JC (Girls), Kokkirapalli and transferred the writ petitioner to APSWRS/JC(B), Srikrishnapuram. It is claimed that pursuant to the said order the petitioner had joined at Srikrishnapuram on 02.09.2009. While so, the 2nd respondent passed a fresh order dated 18.09.2009 reviewing the earlier order dated 28.08.2009 and posting the petitioner back to APSWRS, Parvathipuram and transferring the 5th respondent to APSWRS/JC(Boys), Srikrishnapuram. Challenging the said order dated 18.09.2009, the present writ petition is filed contending inter alia that the 2nd respondent has no jurisdiction to entertain a Second Appeal under G.O.Rt.No.470, dated 26.06.2009 and therefore the impugned order passed purportedly in exercise of the appellate powers conferred upon the 2nd respondent is totally illegal and without jurisdiction. It is also contended that the impugned order which is passed upon a misconception that the 5th respondent comes under the compulsory transfer within the meaning of Rule 8 of the guidelines which provides for shifting of male teachers working in Girls’ Institution below the age of 50 years is unsustainable since the 5th respondent is aged 51 years. It is also contended that since both the petitioner and 5th respondent come under the same category and since the 5th respondent had obtained only 17 entitlement points whereas the petitioner secured 29 points, the order passed by the 2nd respondent initially on 28.08.2009 was perfectly in accordance with the Rules and ought not to have been disturbed under the impugned order, particularly without notice to the petitioner. A detailed counter-affidavit has been filed on behalf of the respondents 1 to 4 stating that the petitioner’s contention that the 5th respondent was not covered under compulsory category as he had completed 51 years of age is incorrect. It is further contended that since the 5th respondent was admittedly working in a Girls’ institution at Parvathipuram, he shall be transferred under compulsory category at the first instance and then only the general request of male teachers shall be considered. It is explained that as per the Circular dated 9.7.2009 issued by the 1st respondent, the general requests for transfer come under Step-5, whereas posting of female teachers in Girls’ institutions come under Step-2. In the circumstances, the consideration of the 5th respondent’s case in the first instance i.e., under Step-2 is in conformity with the Circular dated 9.7.2009. Since the petitioner’s request comes under general request of male teacher, the earlier order dated 28.08.2009 was reviewed on an Appeal preferred by the 5th respondent and the impugned order dated 18.09.2009 was rightly passed in conformity with the guidelines. A separate counter-affidavit has been filed by the 5th respondent stating that he made a detailed representation on 27.08.2009 itself before the 2nd respondent contesting the appeal preferred by the writ petitioner. However, without considering his objections, the order dated 28.08.2009 was passed retaining him at Kokkirapalli and transferring the writ petitioner to Srikrishnapuram. Thereafter, on a comprehensive review, the impugned order dated 18.09.2009 was passed. I have heard the learned counsel for both the parties in detail. The learned counsel for the petitioner while pointing out that both the writ petitioner and the 5th respondent requested for transfer from their respective places under Clause-5 of the guidelines which entitles the teachers with a service of 2 years and above on or before 17.06.2009 to apply for transfer, contended that both of them come under the same category of ‘general request’ and since the respondent No.1 crossed 50 years, he is not eligible for compulsory transfer under Clause 8 as claimed by the respondents. It is further contended by the learned counsel for the petitioner that the impugned order dated 18.09.2009 was without jurisdiction since no Second Appeal can be entertained by the 2nd respondent against his own order. Though it is contended by the 5th respondent that he submitted his objections before the 2nd respondent / appellate authority on 27.08.2009 even before the appeal of the writ petitioner was decided and therefore the impugned order had been rightly passed reconsidering the whole issue, I am unable to agree. Pursuant to the order dated 28.08.2009, the petitioner states that he was relieved at Parvathipuram and joined at Srikrishnapuram on 02.09.2009. In the circumstances, even assuming that a case is made out by the 5th respondent to review the whole issue, the 2nd respondent is bound to give an opportunity of hearing to the writ petitioner. Without affording such an opportunity, the 2nd respondent ought not to have passed a fresh order superseding his own order passed in exercise of the appellate powers under Clause 21 of the Guidelines. In the circumstances, without expressing any opinion as to the rival claims made by the parties, the impugned order dated 18.09.2009 is hereby set aside and the Writ Petition is disposed of with a direction to the 2nd respondent to pass appropriate orders afresh after giving an opportunity of hearing to both the writ petitioner and the 5th respondent as expeditiously as possible preferably within a period of four weeks from the date of receipt of this order. Writ Petition is accordingly disposed of. No costs. ____________ G. ROHINI, J. Dt. 10.03.2010 gbs