THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.15588 of 2009 ORDER: (per the Hon’ble Sri Justice V.Eswaraiah) Unofficial respondents filed O.A.No.8035 of 2009 on the file of the A.P.Administrative Tribunal, Hyderabad (for short “the Tribunal”), seeking to declare that: “(i) the action of the respondents therein in seeking to apply rules issued in G.O.Ms.No.15, dated 26-01-2009 to the posts held by the applicants therein as illegal and arbitrary; (ii) the action of the respondents therein in seeking to apply guidelines dated 24-06-2009 and all subsequent guidelines and clarifications issued by the Director of School Education to the posts held by the applicants therein is contrary of law; (iii) the DEO or CEO or his committees constituted under G.O.Ms.No.15, dated 26-01-2009 have no jurisdiction over the posts held by the applicants therein; (iv) the applicants therein cannot be subjected to resolution bearing No.62, dated 28-12-2006 of the Municipal Corporation of Kadapa and resolution No.21, dated 10-01-2007 of ZPP, Kadapa.” The unofficial respondents herein sought for an interim relief to direct the respondents therein not to transfer them from the posts and places where they are working, pending disposal of the O.A. The Tribunal vide its order, dated 16-07-2009, granted interim order in the said O.A. along with other O.As., directing the respondents therein not to notify the posts of various categories of teachers working in the jurisdiction of the respective Municipal Corporations and retain and continue them till the disposal of the O.As. We are concerned only with the interim order passed insofar as the applicants in O.A.No.8035 of 2009, who are unofficial respondents herein. Aggrieved by the said interim order, the writ petitioners herein, who are working as Secondary Grade Teachers under the control of Zilla Parishad Management, Kadapa, after obtaining leave to question the said order of the Tribunal, filed the present writ petition. For the sake of convenience, the applicants before the Tribunal, who are unofficial respondents herein, are hereinafter referred to as applicants. It is the case of the applicants that they are working as either Secondary Grade Teachers or School Assistants in the service of or under the control of Zilla Parishad, Kadapa and they were given postings in different places and they are working in different schools located in different Gram Panchayats of Kadapa. While so, the Municipal Corporation, Kadapa, passed a resolution No.62, dated 28- 12-2006 resolving to take over the services of the teachers working in the schools of eight Gram Panchayats, which have been merged in Kadapa Municipal Corporation, and accordingly, addressed a letter, dated 08-01-2007, to the Chief Executive Officer, Zilla Parishad, Kadapa, informing about the Resolution passed by the Municipal Corporation, Kadapa. The Commissioner, Municipal Corporation, Kadapa, also requested the Chief Executive Officer to accord permission to the Zilla Parishad to take over the services of the Teachers by the Municipal Corporation. The Chief Executive Officer, Zilla Parishad, Kadapa through his letter, dated 05-12-2007, forwarded the Resolution No.21, dated 10-01-2007 consenting to take over the services of the teachers working in the said eight gram panchayats. Accordingly, the Commissioner, Municipal Corporation, Kadapa, addressed a letter, dated 22-03-2007, to the Secretary to the Government, Municipal Administration and Urban Development bringing to his notice about the aforesaid Resolutions. Thereupon, the Government issued Memo, dated 03-05-2008, to examine the issues with reference to the points raised. The proposal for taking over Zilla Parishad/Mandal Parishad Schools, which are fallen under the area of Municipal Corporation, Kadapa, along with the staff, is pending with the Government. In those circumstances, the applicants, who are working in eight gram panchayats under the control of Zilla Parishad, submitted that they cannot be subjected to general transfers pursuant to the order of the Government in G.O.Ms.No.15, dated 26-01-2009. However, we are of the opinion that as long as the Government has not taken any decision with regard to absorption of teachers, as above, it cannot be said that G.O.Ms.No.15, dated 26-01-2009 is not applicable to the applicants before the Tribunal. The learned counsel for the petitioners submits that the Tribunal, without any reference to the Transfer Rules in G.O.Ms.No.15, granted aforesaid interim order pending disposal of the O.As. directing the official respondents not to notify the posts of various categories of teachers working in the jurisdiction of the respective Municipal Corporations and retain and continue them till the disposal of the said O.As. It is further submitted that the said interim order is in the nature of final order. The petitioners, who are working as Secondary Grade Teachers and School Assistants under the control of Zilla Parishad, out side the Municipal Corporation limits, question the said order on the ground that by virtue of the said interim order, their chances for getting postings within the area of Kadapa Municipal Corporation have been affected and the effect of the said interim order is nothing but excluding the application of the provisions of the Transfer Rules in G.O.Ms.No.15, dated 26-01-2009, even though the said G.O. has not been questioned and the G.O. was not at all suspended. Learned counsel for the petitioners submits that on account of the said interim order, the petitioners, who are working in the remote areas, are denied their chances to come within the Kadapa Municipal Corporation limits. We have considered the rival contentions. We have perused the rules issued in the said G.O. The said Rules deal with regard to the promotions and transfers of Head Masters Grade Gazetted-II/Teachers, who are working in the Government Schools and ZPP and MPP Schools in the State. Rule 13 of the said G.O., reads as follows:- The following categories of HMs Gr.II Gazetted/Teachers in the Government/ZPP/MPP posts shall be transferred: (a) Those who have completed 8 years service in a particular School/Panchayat/Municipality or Municipal Corporation in all schools as on 1st July of every year shall be compulsorily transferred. The completion of 8 years service shall be counted for the service rendered in a school prior and after upgradation in respect of upgraded and bifurcated schools. (b) Those who are going to retire within two years as on the date of transfer counselling shall not be shifted until and unless the incumbent requests for such transfer. (c) If no women HMs/Teachers are available to work in Girls Schools including High Schools, then male HMs/Teachers who are over and above 50 years age will be considered for posting to such schools. (d) If any Headmaster/Teacher fail to apply and attend counselling, such persons will be allocated to the left over vacancies in the counselling and no further correspondence will be entertained. (e) Once transfer orders are issued by the competent authority, review of orders shall not be considered. The person should join in the place of posting. Avoiding of posting orders and applying for treatment of waiting period as compulsory wait will not be entertained. As per Rule 13(a) of the said G.O., Head Masters Grade-II Gazetted/ Teachers in the Government/Zilla Praja Parishad/Mandal Praja Parishad must compulsorily be transferred after completing eight years of service. Insofar as Teachers, who are going to retire within two years, shall not be transferred until and unless the incumbent requests for such transfer. That means, except the persons, who are going to retire within two years, the transfer shall be effected in respect of all others and after completing eight years of service, they must be transferred compulsorily. Rule 14 of the said G.O. reads as follows:- “Headmasters Gr.II Gazetted/Teachers who have put in more than two years of service in a place/School and above as on 1st July are only eligible to apply for transfer.” As per Rule 14 of the said G.O., it is open for the Teachers to apply for transfer, whoever completes two years of service in one place, so as to consider their transfer for their place of choice as per the points secured by them, otherwise they will be allocated to the left over vacancies in the counselling as per Rule 13(d) of the said G.O. It is stated that the writ petitioners, who are working in the remote areas are likely to get more marks as against the applicants, who are working in the Corporation area. It is stated that the applicants as well as the writ petitioners applied for transfer, pursuant to the aforesaid Transfer Rules. The list of all the applicants was also prepared and points secured by them were also communicated. As the chances of the applicants to get their place of choice within the Municipal limits are less, they have chosen to file the said O.A. and obtained the aforesaid order, which is not only applicable to them, but also applicable to all other Teachers working in the Kadapa Municipal Corporation Limits. It is further stated that infact insofar as Head Masters counselling is concerned, it was completed even with regard to Kadapa Municipal Limits. Sri C.V.Mohan Reddy, learned Senior Counsel appearing for the applicants submits that O.A.No.6806 of 2005 and batch, which were filed questioning the action of the official respondents in transferring them from various Municipal Corporation Limits, were dismissed by the Tribunal, against which, W.P.No.22045 of 2008 was filed before this court and in W.P.M.P.No.28701 of 2008 in W.P.No.22045 of 2008, an interim suspension was sought for to direct the official respondents therein to retain and continue the writ petitioner therein as S.G.T. in M.P.P. School Chinagudili , Visakhapatnam, by suspending operation of the order of the Administrative Tribunal in O.A.No.6806 of 2005, dated 19-06-2008 along with O.A.No.6938 of 2005 and Batch, pending disposal of the writ petition. This Court by order, dated 13-09-2008, granted interim suspension as prayed for. Learned Senior Counsel submits that in view of the said interim order of this court in W.P.M.P.No.28701 of 2008 in W.P.No.22045 of 2008, dated 13-09-2008, it is not just and proper to interfere with the interim order passed by the Tribunal in the present case. When O.A.No.6806 of 2005 itself has been dismissed by the Tribunal, by grant of interim suspension, it cannot be said that this court granted any positive direction, more so, when a specific direction was sought for to retain and continue the writ petitioners therein as Secondary Grade Teachers in M.P.P.School, Chinagadili, Visakhapatnam. This court did not grant any interim direction, but only granted interim suspension. However, we are of the opinion that the subject matter of W.P.No.22045 of 2008 is nothing to do with the issue before us as the issue before us is regarding to the application of transfer Rules under G.O.Ms.No.15, whereas the subject matter of O.A.No.6806 of 2005 against which W.P.No.22045 of 2008 was filed relates to issuance of Notification, dated 18-07-2005, relating to merger of certain areas of the Municipal Corporation and another Transfer Notification, dated 07- 10-2005. Whereas, in the instant case, the Government issued transfer Rules, which are applicable to all the Teachers, working in the Government as well as the Zilla Parishad Schools. Merely because the applicants opted for absorption to the Municipal Corporation, Kadapa, it cannot be said that the said transfer Rules cannot be applicable to them. As a matter of fact, the Commissioner, Director of School Education, A.P., Hyderabad, issued proceedings in Rc.No. 167/D1-3/09, dated 24-06-2009, directing all the District Educational Officers and Regional Joint Directors of School Education to initiate action in the conduct of transfer counselling, as per the schedule and guidelines duly following the rules issued in G.O.Ms.No.15, dated 26- 01-2009 without fail and any deviations in the matter will be viewed seriously. Learned senior counsel appearing for the applicants submits that pursuant to the aforesaid interim orders of the Tribunal, dated 16- 07-2009, the Government issued Memo No.8450/SE.SCR-II/09, dated 17-07-2009, directing the Commissioner and Director of School Education, Hyderabad, not to disturb the Teachers, who have already completed eight years of service in the present post and also delete those places from the list of notified vacancy for Transfer counselling 2009. We are of the opinion that said consequential memo will not come in the way of considering the legality of the said order passed by the Tribunal. We are also of the opinion that as long as the services of the applicants are not absorbed in the Kadapa Municipal Corporation, it cannot be said that the Transfer Rules cannot be made applicable to them. In view of the aforesaid facts and circumstances of the case, though in normal course this court will not interfere with the interim order, in view of the aforesaid facts and circumstances of the case and in view of the aforesaid interim order of the Tribunal, we are of the opinion that the entire transfer policy of the Government mentioned in the said G.O. would be frustrated, if the said interim orders are permitted to be continued. Therefore, we are of the opinion that the Tribunal ought not to have granted the said interim order, which amounts to granting main relief in the O.A. The transfer Rules issued in the said G.O. are not questioned and the said transfer rules are in operation. The effect of the interim orders of Tribunal nullifies the working of the transfer Rules. Therefore, the impugned order is liable to be set aside. Accordingly, the writ petition is allowed setting aside the order of the Tribunal. However, the Tribunal is directed to dispose of the main O.A. after giving opportunity of hearing to both sides as expeditiously as possible without any undue delay. There shall be no order as to costs. ________________ V.ESWARAIAH, J ________________________ VILAS V. AFZULPURKAR, J Date: 04-08-2009 Note: Issue C.C. by today (B/o) Prv