IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 9355 of 2006 Between: 1 L.P. Vardhani, W/o. K.S.R. Murthy, Sri Vijaya Bharathi Upper Primary School, Seva Nikethan, Patamata Lanka, Vijayawada - 10. 2 K. Satyavani, W/o. L.D.V.S. Sarma, Sri Vijaya Bharathi Upper Primary School, Seva Nikethan, Patamata Lanka, Vijayawada - 10. ..... PETITIONERS AND 1 Government of Andrha Pradesh, Rep by its Secretary, School Education, Secretariat, 2 The District Educational Officer, Krishna, Machilipatnam. 3 Sri Vijaya Bharathi Upper Primary School, Seva Nikethan, Patamata Lanka, Vijayawada - 10, rep by its Correspondent 4 The Commissioner and Director, School Education, Andhra Pradesh, 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 may be pleased to issue writ of Mandamus or any other appropriate Writ or order or direction declaring the inaction of the respondents in not absorbing the petitioners into grant in aid posts as arbitrary, illegal and as unjust and issue a consequential direction directing the respondents to absorb the petitioners into grant in aid posts in pursuance of proceedings issued by the commissioner and director of School Education, Andhra Pradesh, Hyderabad, bearing Rc.No. 4799/(DI-2)B1- 1/2003 dated 27-04-2004 and that of the second respondent's proceedings dated 02-06-2004 bearing Rc.No.109/D1-/2003 with all consequential benefits, with effect from the date on which the petitioners have been appointed, and to pass such other order or orders as this Hon'ble court may deem fit and proper. Counsel for the Petitioners: KUM.C.SINDHU KUMARI Counsel for the Respondent Nos.1, 2&4: GP FOR SCHOOL EDUCATION Counsel for the Respondent No.3: The Court made the following : ORDER: Sri Vijaya Bharathi Upper Primary School, Seva Nikethan, Patamata Lanka, Vijayawada-3rd respondent issued notification on 28.03.2000 calling for applications for the posts of B.Ed. Assistant (Social Studies) and Grade-II Telugu Pandit. Both the posts were reserved for O.C. Women. The petitioners responded to the notification. Selection committee recommended the petitioners for appointment as B.Ed. Assistant (Social Studies) and Grade-II Telugu Pandit respectively. The District Educational Officer, Krishna, Machilipatnam- 2nd respondent issued proceedings L.Dis.No.7/C2/2001, dated 04.09.2001 granting approval for the selection of the petitioners to the unaided posts. Along with the petitioners, three others namely A.Mohanalakshmikumari, S.Ramamohana Reddy and P.Swarnalatha were also appointed. The 3rd respondent requested the District Educational Officer, Krishna, Machilipatnam-2nd respondent to transfer surplus vacant aided posts to its school so that the petitioners could be absorbed in the aided posts. The 2nd respondent submitted the proposals to the Commissioner and Director of School Education, Hyderabad-4th respondent for shifting of surplus vacant posts of one B.Ed. Assistant, Grade-II Hindu Pandit and Grade-II Telugu Pandit to the 3rd respondent school. The Commissioner and Director of School Education, Hyderabad-4th respondent accorded permission to the District Educational Officer, Krishna, Machilipatnam-2nd respondent to shift surplus vacant aided posts of one B.Ed. Assistant, one Grade-II Hindi Pandit and one Grade-II Telugu Pandit from other schools in the District to the 3rd respondent School. The 2nd respondent by his proceedings bearing Rc.No.109/D1/2003, dated 02.06.2004 shifted three surplus vacant aided posts from other schools to the 3rd respondent School. When the 3rd respondent School was contemplating to take steps to absorb the petitioners into the said transferred vacant surplus aided posts, the 4th respondent issued telegraphic orders not to act upon the proceedings dated 27.04.2004. The 3rd respondent made an appeal to the Government of Andhra Pradesh, rep. by its Secretary, School Education, Hyderabad-1st respondent. The 1st respondent by Memo bearing No.11699/PS- 2/2004-1, dated 25.10.2004 directed the Commissioner and Director of School Education-4th respondent to examine the staff strength in the 3rd respondent School and submit a report as to whether there are any surplus vacant posts already admitted to grant in aid which can be filled up. The 1st respondent issued further proceedings in Memo.No.11699/PS.2/2004, dated 04.04.2005 informing the 2nd respondent that it is not possible to shift the posts from one organization to another and that the District Educational Officer, Krishna, Machilipatnam-2nd respondent has no such power. It is the grievance of the petitioners that similarly situated persons have been absorbed in grant in aid posts in accordance with the G.O.Ms.No.75, Education, Dt.23.09.2002, and refusal of the 1st respondent to give similar treatment to them is unjustified. For better understanding of the grievance of the petitioners, I deem it appropriate to refer paras.10 to 12 of the affidavit filed in support of the writ petition, which read as hereunder: “It is submitted that as per G.O.Ms.No.75 we are entitled for absorption into grant in aid posts. Our appointments have been approved. We were selected by a duly constituted selection committee and all the requirements for absorption into grant in aid posts as per the said G.O. are fulfilled. The respondents have to take whatever steps for our absorption into grant in aid posts in accordance with the said G.O. It is for them either to get transferred surplus vacant aided posts from other schools or otherwise. We would not have been put to this jeopardy and suffering. 11. It is submitted that the third respondent has appointed along with us two other Teachers, namely, (1) Mr. S.Ramamohana Reddy and (2) P.Swarnalath. They were also appointed like us in unaided vacancies. The Commissioner and Director of School Education, in his proceedings bearing No.179/B-8-1/2000 dated 26th August, 2000 directed the District Educational Officer, the second respondent to shift unutilized surplus vacant aided S.G.B.T. posts from H.C.U.P.School, Ramanaidupeta to the third respondent school. Thereafter, the District Educational Officer, the second respondent, by his proceedings bearing No.129/C.1/1999 (D.1) dated 12.08.2002 had transferred two Aided Secondary Grade Assistant Posts identified surplus in Hindu College UP School, Ramanaidupet of Machilipatnam to the third respondent school. In such transferred posts, the District Educational Officer, the second respondent, by his proceedings dated 21st October, 2003 approved the absorption of two staff members, namely, (1) Mr.S.Ramamohana Reddy and (2) Smt. P.Swarnalatha in the said transferred surplus posts. Pursuant thereto, they are working as aided staff members and they are receiving salaries from grant in aid. It is submitted that we also stand on the same footing. The respondents cannot act arbitrarily and they cannot discriminate us. We were also appointed under the same proceedings like the above persons. We are entitled to equal treatment. The respondents have denied the same treatment. The respondents having allowed transfer of aided posts from other schools and absorbed some of the staff members into such transferred aided posts, refusing to give same treatment to us is nothing short of arbitrary exercise of power. 12. It is submitted that the Memo. Issued by the first respondent that every school is a separate unit and that aided posts from one school to another cannot be transferred in no circumstances is not correct. In practice, the first respondent has been transferring the aided posts from one school to the other. In fact, as on date, this is not the policy. It is submitted that if in a particular school aided post is lying vacant, it is a waste of public revenue. Instead in a school where there is sufficient work load and where staff members have been appointed after following due procedure, like us here, it is the duty of the respondents to see that such public interests does not suffer. Thee is nothing wrong in transferring surplus aided posts to a needy school. In fact, that is the purport and ambit of G.O.Ms.No.1 and 33. In exercise of these powers conferred under these G.Os. the respondents have been doing for all these years. We are entitled for similar treatment. The fourth respondent has no jurisdiction in withdrawing the proceedings dated 27.04.2004 according permission to shift the surplus aided posts to the third respondent school and thee is no justification in directing the 3rd respondent school not to act upon the said Proceedings.” The relief sought for by the petitioners in the writ petition is for issuance of writ of Mandamus or any other appropriate writ or direction declaring the inaction of the respondents in not absorbing them into grant in aid posts as arbitrary and illegal and as unjust and issue a consequential direction directing the respondents to absorb the petitioners into grant in aid posts in pursuance of proceedings issued by the Commissioner and Director of School Education, A.P., Hyderabad, bearing Rc.No.4799/(D1-2)B1-1/2003, dated 27.04.2004 and that of the second respondent’s proceedings dated 02.06.2004 bearing Rc.No.109/D1/2003 with all consequential benefits with effect from the date on which the petitioners have been appointed. 2. Rule Nisi came to be issued on 28.04.2006. The 2nd respondent filed counter-affidavit. A.Satyanarayana Reddy, District Educational Officer, Krishna at Machilipatnam, has sworn to the counter-affidavit. It is stated in the counter-affidavit that it is the correspondent alone who can take up the service matters of the staff of the concerned educational institution, but not the individual teachers. There is no privity of contract between the official respondents and the petitioners. The proceedings issued by the Commissioner and Director of School Education, A.P., Hyderabad-4th respondent came to be cancelled under proceedings dated 17.05.2004 as the 3rd respondent school was upgraded after 01.09.1985 and thereby ineligible for admission into GIA for UP Section. Since the 3rd respondent School is not eligible for admission into grant in aid, orders issued earlier for shifting of aided posts to the 3rd respondent School have been cancelled by the Commissioner and Director of School Education, A.P., Hyderabad-4th respondent in his proceedings dated 17.06.2004. The management of the 3rd respondent school made an appeal to the Government and the Government had issued Memo. No.11699/PS-02/2004, dated 04.04.2005 stating that every school is a separate unit and therefore, aided post of one school to another school cannot be transferred under any circumstances. 3. The petitioners filed reply affidavit. It is stated in the reply affidavit that G.O.Ms.No.75, Education, Dt.23.09.2002, provides for transfer of surplus posts to needy schools and absorption of teachers in aided posts. The Management of the 3rd respondent school had recommended the case of the petitioners and the authorities accepted the claims of the petitioners and therefore, they have locus standi to file the writ petition. 4. Heard Sri A.Satyanaryana Prasad, learned senior counsel appearing for the petitioners and learned Government Pleader for School Education appearing for the respondents 1, 2 and 4 and Sri S.Srinivasa Sharma, learned counsel appearing for the 3rd respondent School. 5. Learned senior counsel appearing for the petitioners submits that the proposal of the 3rd respondent School for shifting of surplus aided posts from other schools has been approved by the 4th respondent under proceedings dated 27.04.2004 and consequential proceedings came to be issued by the 2nd respondent transferring surplus aided posts to the 3rd respondent School. He further submits that the 4th respondent having approved the proposal for transfer of surplus aided posts to the school of the 3rd respondent is unjustified in issuing telegraphic instructions not to act upon the proceedings dated 27.04.2004. Learned senior counsel would further submit that S.Ramamohana Reddy and P.Swarnalatha, who have been appointed in the school along with the petitioners, have been considered for absorption in the aided posts and therefore, the petitioners also deserve to be given the similar treatment. Reference has been made to the proceedings of the 2nd respondent vide L.Dis.No.7/C2/2001, dated 04.09.2001 whereunder approval has been accorded for appointment of the petitioners and 3 others in the 3rd respondent School. 6. As could be seen from the proceedings dated 04.09.2001 issued by the 2nd respondent, approval was accorded for appointment of the petitioners and 3 others viz., 1) A.Mohana Lakshmi Kumari, 2) S.Ramamohana Reddy and 3) P. Swarnalatha. The 1st petitioner was appointed as B.Ed. Assistant (Social Studies) Unaided. The 2nd petitioner was appointed as Gr.II Telugu Pandit unaided. A.Mohanalaxmikumari was appointed as Gr.II Hindi Pandit Unaided. S.Ramamohana Reddy was appointed as SGT unaided and P.Swarnalatha was appointed as SGT unaided. It is evident from the proceedings that S.Ramamohana Reddy and P.Swarnalath were appointed as SGTs and whereas, the petitioners were appointed as B.Ed. Assistant (Social Studies) and Gr.II Telugu Pandit respectively. 7. Learned senior counsel by referring the proceedings dated 21.10.2003 issued by the 2nd respondent contends that S.Ramamohana Reddy and P.Swarnalatha were absorbed in aided posts and therefore, the petitioners were also to be given similar treatment. As I stated supra that S.Ramamohana Reddy and P.Swarnalatha were appointed as SGTs and whereas the petitioners were appointed as B.Ed. Assistant (Social Studies) and Gr.II Telugu Pandit respectively. Therefore, the petitioners cannot compare with the said S.Rama Mohana Reddy and P.Swarnalatha. 8. Learned Government Pleader for School Education appearing for the respondents 1, 2 and 4 submits that the proposal sent by the 3rd respondent School ended with rejection under proceedings Rc.No.4799/(D1-2)/B1-1/2003, dated 17.06.2004 and the 3rd respondent School made an appeal to the Government assailing the order of rejection and the Government issued Memo.No.11699/PS-2/2004, dated 04.04.2005 clarifying that every school is a separate unit and it is not possible to shift the posts from one organization to another. Learned Government Pleader took me to the proceedings dated 17.06.2004 and Memo. Dated 04.04.2005. The text of the proceedings dated 17.0- 6.2004 issued by the 4th respondents reads as hereunder: “The District Educational Officer, Machilipatnam, Krishna District has submitted proposals for shifting of vacant aided posts of 2 B.Ed., Assts and two Gr.II Language Pandits which are un-utilized and available from other Aided Schools in the district to Sri Vijaya Bharati Upper Primary School, Sevaniketan, patamatalanka,Vijayawada. Basing on the report of the District Educational officer, Krishna District, permission was accorded in the reference 2nd read above for shifting of surplus aided vacant posts of one B.Ed. Asst., Gr.II Hindu Pandit and Gr.II Telugu Pandit from to her Aided Schools in the district to Sri Vijaya Bharati Upper primary school, Sevaniketan, Patamatalanka, Vijayawada. Later on it has been brought to thenotice of this office that though the school was established as a Primary School in 1977 it was upgraded only after 1.9.1985. But the District Educational Officer has not indicated the date of Upgradation of the school in his proposals, which led to the discrepancy. In fact the Upper Primary Classes were opened after 01.09.1985 and as such the school is not eligible for Grant-in-Aid for Upper Primary classes. As such shifting of surplus aided vacant posts of one B.Ed. Asst, Gr.II Hindi Pandit and Gr.II Telugu Pandit from other Aided Schools in the district to Sri Vijaya Bharati Uppr Primary School, Sevaniketan, Patamatalanka, Vijayawada is not in consonance with Grant-in-Aid Act 22 of 1988. Therefore, the orders issued in Procs.Rc.No.4799/(D1-2)/B1-2/2003, dt.27.04.2004 of Commissioner and Director of School Education are hereby cancelled. The District Educational Officer, Machilipatnam, Krishna District and the Management of Sri Vijaya Bharati Upper Primary School, Sevaniketan, Patamatalanka, Vijayawada re requested not to act upon the orders dt.27.04.2004 of this office. The District Educational Officer, Krishna District is requested to take immediate necessary action in the matter and submit the compliance report. This has the approval of Commissioner and Director of School Education, A.P., Hyderabad.” 9. It is evident from the material brought on record that the 3rd respondent challenged the proceedings dated 17.06.2004 whereby and whereunder shifting of aided vacant posts of B. Ed. Asst, Gr.II Hindi Pandit and Gr.II Telugu Pandit from other aided schools has been cancelled. The appeal filed by the 3rd respondent School came to be rejected. The petitioners cannot be permitted to challenge the selfsame proceedings in their individual capacity. If there are any subsequent developments, it is the 3rd respondent School which has to renew its request for transfer of surplus vacant aided posts from other schools to its school and thereupon the Commissioner and Director of School Education, Andhra pradesh-4th respondent shall consider the same and pass appropriate orders keeping in view the G.O.Ms.No.75 School Education (PS-2) Department, dated 23.09.2002 and other relevant Government Orders governing the field of transfer of surplus vacant aided posts from one school to the other. 10. With the above observation, the writ petition is disposed of. No costs. . ______________________ B.SESHASAYANA REDDY, J. Date:04th February, 2009. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK}