IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 23012 of 2008 Between: K.Shashidhar Reddy S/o.Balram Reddy Government Primary School ,Bapujinagar Khajipet , Warangal ..... PETITIONER AND 1 The District Educational Officer and Members secretary District Level Committee, for Rationalization, Warangal 2 The Chairman/District Collector, Rationalization Committee, Warangal 3 The Deputy Inspector of Schools, Warangal, West Warangal 4 The Headmaster, Government U.P.S.Bapujinagar Khajipet, Warangal 5 The Commissioner & Director of School Education AP Hyderabad 6 Government of Andhra Pradesh, rep. by its Secretary Education Department, Secretariat, Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more in the nature of Certiorari calling for the records relating to the judgment of the AP Administrative Tribunal in OA.No.7787 of 2005 dated 12.8.2008 and Proc.Rc.No.9865/S1/2005 dated 20.11.2005 issued by the District Educational Officer, Warangal and quash the same as illegal, arbitrary, unjust void and opposed to the law laid down by the Hon`ble high Court in WP.no.17548 of 2006 and batch dated 28.2.2007 and hold that the petitioner is entitled to be continued as S.G.T.in Government Primary School Bapujinagar, Khajipet, Warangal with all consequential benefits and pass Counsel for the Petitioner: MR.D.LINGA RAO Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED And THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 23012 of 2008 ORDER: (Per Hon’ble Sri G.M, J.) 1 This Writ Petition is filed seeking a writ of certiorari calling for the records relating to the Judgment of the A.P Administrative Tribunal in O.A.No.7787 of 2005 dated 12.08.2008 and Proc.Rc.No.9865/S1/2005 dated 20.11.2005 issued by the first respondent and quash the same as illegal and arbitrary and opposed to the law laid down by this Court in WP.No.17548 of 2006 and batch dated 28.2.2007 and hold that the petitioner is entitled to be continued as S.G.T. in Government Primary School, Bapujinagar, Khajipet, Warangal with all consequential benefits. 2 The case of the petitioner is that he is working as S.G.T with effect from 18.01.2002 and in terms of the orders of the Government Memo No18006/Ser.VI/1/2003, dated 13.11.2003, he was transferred to Government U.P. School Bapujinagar, Khajipet in the existing vacancy vide Proc.Rc.No.12263/S1/2003 dated 18.11.2003 issued by the first respondent and had joined in the said post on 21.11.2003 and is working in the said school. During the rationalization of 2005, though the strength of the students in classes 1 to 5 was 185 and there is need for 5 teachers as per norms of staff pattern, the student strength as on 30.09.2004 i.e. 140 is taken instead of taking the student strength as on September of the year in which the rationalization is done when the student strength is 185, and he was declared as surplus and was posted to U.P.School Banjipet of Raghunathapally Mandal in Warangal District despite the Head Master, Government U.P.S, Bapujinagar, Khajipet addressing the first respondent vide letter dated 14.11.2005 that there is required strength of five teachers for the 185 students. 3 Aggrieved by his transfer the petitioner preferred O.A.No.7787 of 2005 before the A.P. Administrative Tribunal contending that there is no surplus post in the said school and the Tribunal, while admitting the O.A., granted interim relief directing the respondents to continue the petitioner at Government U.P.S. Bapujinagar, Khajipet, Warangal District till further orders. But on final adjudication, the Tribunal dismissed the O.A. by observing that whether the staff is surplus or not is a question of fact, which cannot be looked into by the Tribunal and if the view taken by the first respondent that the petitioner comes under surplus staff is wrong, such an order has to be assailed before the appropriate authority by filing an appeal and in view of the observation of the Apex Court that the Courts and Tribunals have no jurisdiction to interfere with the administrative orders of transfer unless they are vitiated by mala fide intentions or contra to the statutory provisions or rules which are not present in this case on hand and consequently directed the petitioner to pursue the remedies available under service rules. Aggrieved thereby the present Writ Petition is filed. 4 The contention of the learned counsel for the petitioner is that the Tribunal erroneously dismissed the O.A. on the ground that there is a right of appeal provided under G.O.Ms.No.103, Edn., dated 5-8- 2005 when the same Tribunal has allowed the O.A.No.8262 of 2005 and batch by following the judgment of this Court in Writ Petition No.17548 of 2006 and batch dated 28.02.2007 wherein this Court held that: “W.P.Nos.17051, 17076 and 16771 of 2006 are filed by the teachers working in Government Schools questioning the orders transferring them to Zilla Parishad schools. Since the petitioners therein are teachers working in Government Schools belong to a local cadre, which is a separate unit for the purpose of appointment, seniority, promotion transfer etc., their transfer to a service of a local authority, which has not been and cannot be organized into a local cadre is illegal. Consequently all these 3 Writ Petitions are also allowed”. 5 It is his contention that in view of the orders of this court in the above Writ Petitions, the petitioner is entitled to be continued in the same school in which he is presently working. 6 Having regard to the fact that the Tribunal has allowed O.A.No.8262 of 2005 and batch by following the judgment of this Court in Writ Petition No.17548 of 2006 and batch dated 28.02.2007 and since the case of the petitioner is also similar to that of the said O.A, and since an interim order is subsisting in favour of the petitioner, upon which the petitioner is continuing in the same school, the Tribunal ought to have decided the issue on merits instead of relegating the petitioner to pursue the remedy of appeal 7 In that view of the matter, the Writ Petition is allowed, the order of the Tribunal in O.A.No.7787 of 2005 dated 12.08.2008 is set aside and the matter is remitted to the Tribunal for fresh disposal on merits in accordance with law. No order as to costs. ---------------------------------------- GHULAM MOHAMMED, J. 22.10.2008 ------------------------------------ G.BHAVANI PRASAD, J. kvsn