ORDER
Vilas V. Afzulpurkar, J.
1. 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, subparagraph (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 of the respondent herein appears at SI.No.42 of annexure to the said GO, which shows that she was selected in OC(W) category and the post to which she was selected was backlog vacancy reserved for locals under DSC-2000 and that though she belongs to Guntur local area, she was appointed in Medak District. As stated above, the said orders as to repatriation have been implemented substantially and only to the extent of some of the teachers including the respondent herein, who approached the tribunal, the said repatriation orders could not be implemented and with the result such identified teachers are continuing in the same zone in which they were appointed in violation of the Presidential Order.
7. It is, at this stage, that the respondent moved the tribunal in O.A. No. 10431 of 2008 challenging the aforesaid G.O.Ms. No. 158 dated 02.12.2008 and by the impugned order of the tribunal dated 15.12.2008, while admitting the OA the impugned G.O.Ms. No. 158 dated 02.12.2008 was suspended, insofar as the applicant is concerned.
8. Subsequently, the respondents 1 to 7 in WP. No. 15090 of 2009 approached the tribunal by filing O.A. No. 894 of 2009 claiming that the repatriation orders having been suspended, the State is bound to consider their case for promotion to the post of School Assistant as per seniority and for consequential directions. The sixth respondent herein is the applicant in O.A. No. 10431 of 2008 referred to above and similar orders staying repatriation were obtained by other respondents herein by individually approaching the tribunal and obtained similar orders of suspension of the repatriation GO to the extent of each the applicant therein. Based on the above, they had filed fresh O.A. No. 894 of 2009 seeking direction for consideration of their cases for promotion. By order of the tribunal dated 28.01.2009, which is impugned in the aforesaid writ petition, while admitting the OA directions were issued to the officials (petitioners in the writ petition) to consider the case of the applicants/respondents 1 to 7 in the writ petition for promotion to the post of School Assistant as per seniority by permitting them to participate in the promotion counseling. However, the promotion orders need not be given.
9. Meanwhile, the Government had issued Memo No. 5822/SE.II. 1/2006-3 dated 12.03.2008 wherein the Director of School Education was requested to process the promotion of SGT eligible teachers other than those, who are out of Hyderabad District, transferred under G.O.Ms. No. 610 dated 30.12.1985, who are continuing under the interim order of the Courts of law. Questioning the said memo, a batch of OA's in O.A. No. 2080 of 2008 and batch was filed before the tribunal and by order of the tribunal dated 24.03.2008 the aforesaid memo of the Government was suspended. The Government was also directed to review the promotions already made based on the aforesaid memo. Further, any promotions made based on the impugned memo were also suspended and liberty was given to the Government to conduct fresh counseling for promotion without excluding the individuals in respect of whom orders of repatriation have been suspended by the tribunal. The aforesaid order was questioned by the State in WP. No. 6249 of 2009 and a Division Bench of this Court, where one of us, [Hon'ble Sri Justice V. Eswaraiah], was a party, dismissed the writ petition following connected WP. No. 11832 of 2009 dated 19.06.2009 with a liberty to the Government to approach the tribunal for filing necessary application for vacation of interim order and the tribunal was requested to dispose of all the matters.
10. The respondent in WP. No. 15087 of 2009 approached the tribunal by a fresh O.A. No. 7968 of 2009 seeking declaration that action of the writ petitioners in affecting promotions and posting in pursuance of counseling is illegal and arbitrary and for consequential directions restraining the petitioners from affecting promotions, posting and conducting counseling for the post of School Assistant in Medak District, without issuing promotion and posting order to the said applicant in Medak District and interim relief restraining the petitioners herein not to issue any promotion or posting order or conduct counseling till the applicant is given promotional order in Medak District as School Assistant was sought for. By order dated 17.07.2009 the tribunal referred to its earlier order in O.A. No. 2080 of 2008 dated 24.03.2008, referred to in the paragraph above, while admitting the OA passed the following interim order:
Pending further orders, the respondents are directed to pass orders, promoting the applicant and similarly placed persons as School Assistant/Head Master and the transfer of the applicant shall be considered along with the transfer of other candidates as per transfer counseling ruls.
On the ground that the said order is not being implemented the respondent in this writ petition (applicant in O.A. No. 7968 of 2009) filed contempt application in C.A. No. 577 of 2009 before the tribunal and the tribunal passed the following interim order in CMA. No. 168 of 2009 in C.A. No. 577 of 2009 on 22.07.2009:
In the light of the above circumstances, there shall be an interim direction not to give posting orders for the candidates of DSC-2009 counseling in the districts in which the applicant and similarly placed persons are working till their promotion and counseling process is completed and posting orders are given to the applicant and similarly placed persons and those who previously participated in the promotion counseling.
11. The tribunal, thereafter, passed a further order on 24.07.2009 in the aforesaid CMA. No. 168 of 2009 duly correcting certain typographical mistakes, which occurred in the order dated 22.07.20098 and so far as the relevant words '2009-DSC counseling' mentioned in the order were deleted and substituted by the words 'transfer counseling'. The word 'DSC was deleted by substituting the word 'transfer' whereby the order was applicable to 2009 transfer counseling and not 2009-DSC counseling. The tribunal was informed on the same day that posting orders of the transferees have been dispatched prior to the aforesaid orders. It was explained to the tribunal that the word 'DSC counseling' mentioned in the earlier order on 22.07.2009 lead to some confusion, which resulted in dispatch of the posting orders on the understanding that the said orders did not relate to transfer counseling. However, the tribunal did not agree with the said explanation and directed that the Director of School Education, Government of AP, shall be present before the tribunal on the next date of hearing and explain as to how the said order was understood by him. Meanwhile, the respondents in the aforesaid contempt case were further directed not to effect any transfers and postings on the basis of the transfer counseling of School Assistant, which is now going on and postings given after receiving the orders of the tribunal shall also be kept in abeyance, CMA stands disposed of. The aforesaid orders of the tribunal dated 22.07.2009 and 24.07.2009 were questioned by the respondents in the said contempt case, in WP. No. 15087 of 2009 and a Division Bench of this Court by order dated 28.07.2009 passed the order with operative portion as follows:
VE, 3 & PSR. J.
WPMP. No. 19829 of 2009
In
WP. No. 15087 of 2009
Heard.
Pending passing of the orders in the other batch of writ petitions i.e. WP. Nos. 15090, 15092, 15131 and 15164 of 2009, the order dated 24.07.2009 in CMA. No. l68of 2009 in CA. No. 577 of 2009 in O.A. No. 7968 of 2009 passed by the A.P. Administrative Tribunal, Hyderabad, directing the respondent No. 3 therein i.e. the Director of School Education, Government of A.P., Hyderabad (petitioner No. 6 herein) to appear before the tribunal on 29.07.2009 and to explain to the tribunal about the manner in which the order of the tribunal dated 22.07.2009 understood, is stayed.
12. The respondents in O.A. No. 7968 of 2009, referred to in the paragraph above, have questioned the interim order of the tribunal dated 17.07.2009 referred to in the above paragraph by filing WP. No. 15131 of 2009 and a Division Bench of this Court, where one of us, Hon'ble Sri Justice V. Eswaraiah, was a party, has passed a comprehensive order on 04.08.2009 by referring to various contentions of either side as requiring detailed hearing and in the circumstances, admitted the writ petition along with connected WP. Nos. 15090 and 15087 of 2009. On the same day, the Division Bench also passed detailed reasoned order in all the miscellaneous petitions for stay/suspension in the aforesaid writ petitions filed by the State/Official respondents in the OA. Paragraphs 10, 11 and 12 of the said order dated 04.08.2009 are extracted herein:
10. Having regard to the facts of the case, we are of the prima facie opinion that by reason of the aforesaid interim orders, manifest injustice would be caused to the issue of implementation of the Presidential Order. Not only that in fact several schools would suffer for want of teachers thereby effecting the entire system of school education. The whole grievance of the applicants is only with regard to the promotions. Whether the promotion has to be given first and the transfer counseling has to be taken later is immaterial in so far as the implementation of the Presidential Order is concerned. The applicant in the O.A. cannot be said to suffer irreparable loss, when compared to the loss that is going to be caused to the scheme of implementation of G.O.Ms. No. 610 and also to the school education. We are of the opinion that by grant of interim orders, a serious situation has arisen, whereby a single individual or may be a few want to effect the entire system not only of educational administration, but even teaching in several schools.
11. The grievance of the applicants before the Tribunal is that they are entitled for promotion as per their seniority. The issue of promotion as per their seniority and entitlement is distinct and separate from that of the transfer policy pursuant to the orders issued by the Government in G.O.Ms. No. 610, dated 30.12.1985 for implementation of the Presidential Order. Therefore, both actions shall go on independently. Merely because the applicants are transferred, it cannot be said that they are not entitled for promotion. Therefore, we are of the opinion that the authorities shall consider the cases of the applicants for their promotion independently. Transfer of all the employees who are liable to be transferred shall go on in accordance with the circulars and norms. The applicants shall not be deprived of their promotions for any reason and their promotions shall be considered on par with other similarly situated employees, in accordance with their seniority and entitlement, without any discrimination.
12. Having regard to the facts of the case, we deem it appropriate to suspend the operation of the impugned orders of the Tribunal dated 28.01.2009 in O.A.894/2009, 17.07.2009 in O.A.7968/2009 and orders dated 22.07.2009 & 24.07.2009 in CMA.168/2009 in CA.577/2009 in O.A.7968/2009. Accordingly, these three WPMPs are ordered granting interim suspension, as prayed for, pending further orders.
As Para 11 of the aforesaid order has given rise to three contempt cases, which are detailed below.
C.C. Nos. 1377. 1378 and 1379 of 2009:
13. (a) CC.No.1377 of 2009 is filed by the applicant in O.A. No. 894 of 2008 regarding the interim order dated 28.01.2009, which is the subject matter of WP. No. 15090 of 2009 referred to above.
(b) C.C. No. 1378 of 2009 is filed by the applicant in O.A. No. 7968 of 2009 regarding interim order dated 17.07.2009 passed therein, which is the subject matter of WP. No. 15131 of 2009 referred to above.
(c) C.C. No. 1379 of 2009 is also filed by applicant in CMA.No.168 of 2009 in C.A. No. 577 of 2009 in O.A. No. 7968 of 2009 regarding the interim orders dated 22.07.2009 and 24.07.2009 against which WP. No. 15087 is filed by the respondent-State, which is already separately discussed as above.
All the aforesaid three contempt cases are filed complaining disobedience of Para 11 of the order of the Division Bench of this Court dated 04.08.2009, which is referred to and extracted above.
14. The respondent in this batch of cases has also filed WP. No. 21026 of 2009 seeking a Writ of Mandamus declaring the action of the respondent i.e. the State and its officials in withholding her promotion of SGT while promoting her juniors as School Assistants on the sole ground that she is affected by G.O.Ms. No. 610 dated 30.12.1985 as arbitrary and illegal and for a consequential direction to forthwith consider and promote her as School Assistant. When initially we heard the writ petition on 25.09.2009 at the stage of admission, we have recorded a prima facie opinion that since the matter relates to service, the concerned State Government employee has to first approach the tribunal for relief before approaching this Court. The said writ petition was subsequently adjourned and is coming up for hearing along with this batch of cases and has been heard accordingly.
15. However, suffice it to notice that all the OA's and writ petitions arise out of consequential proceedings after the impugned order, which is the subject matter of WP. No. 23391 of 2009 referred to in the beginning of this order, therefore, the disposal of the said writ petition would consequently dispose all these matters as well.
16. We shall, therefore, deal with WP. No. 23391 of 2009 based on which all the subsequent OA's and writ petitions have arisen. We have heard the Additional Advocate General and Mr. P.V. Krishnaiah, learned counsel appearing for the petitioners and the contesting respondent respectively.
17. It is contended by the learned Additional Advocate General that the orders impugned, which are ex parte interim orders, pending O.A. No. 10431 of 2008, which has suspended the repatriation GO to the extent of the applicant, has completely frustrated the policy of the Government and steps taken by the Government for implementation of the Presidential Order. He also pointed out that the Presidential Order and particularly Para 5(2)(c) had to be implemented and for that purpose, G.O.Ms. No. 610 dated 30.12.1985 was issued ordering repatriation of the employees appointed in deviation of the Presidential Order. Further, the Government orders and memos including G.O.Ms. No. 8 dated 08.03.2002, G.O.Ms. No. 124 dated 07.03.2002, G.O.Ms. No. 43 dated 30.06.2007 and G.O.Ms. No. 674 dated 07.09.2007 to review all appointments under direct recruitment was undertaken. The said exercise of identification of such appointments made in violation of the Presidential Order was duly taken up by a review by Director of School Education and so far as Hyderabad and Ranga Reddy Districts are concerned, the identified non-locals were repatriated to the respective local areas vide G.O.Ms. No. 43 dated 30.06.2007 referred to above. Similar exercise was done so far as Medak District is concerned and similar G.O.Ms. No. 73 dated 20.09.2007 and G.O.Ms. No. 158 dated 02.12.2008, the later being impugned, in the OA's was issued. He points out that no other GO is questioned by the applicant but only G.O.Ms. No. 158 dated 02.12.2008 is questioned. He submits that policy as to appointments on local cadres having being violated the repatriation of such appointees and their transfer to the local area to which they belong, is contemplated under Para 5(2)(c) of the Presidential Order itself, the same being not only in accordance with the public interest, was also necessary so as to ensure the implementation of the Presidential Order.
18. Accordingly, he submits that the interim order of the tribunal staying the said GO to the extent of applicant before it amounts to frustrating the Presidential Order itself. He, therefore, submits that the impugned G.O.Ms. No. 158 dated 02.12.2008 is only a consequential GO and as such, the interim order of the tribunal and various further orders, which are passed at various stages in different OA's and contempt applications as are subject matters of this batch of cases, is completely unwarranted and has resulted in immense harm to the public interest. He submits that even in the said repatriation as ordered, the seniority of the candidate repatriated remains unaffected. Further, the TTA is admissible on such transfers and as such, no prejudice is being caused to the candidate repatriated inasmuch as the candidate is being sent to the local cadre to which the candidate belongs.
19. Learned Additional Advocate General has relied upon the counter affidavit field on behalf of the State before the tribunal in the said OA together with application seeking vacation of the said interim order and pointed out that the aforesaid exercise in issue G.O.Ms. No. 158 dated 02.12.2008 is taken up only in terms of Para 5(2)(c) of the Presidential Order in public interest and that majority of the repatriated teachers have already been relieved and have joined at the place of local cadre in their respective districts.
20. During the hearing of this matter, when we had pointed certain vague and obscure areas in the stand of the Government as reflected from the counter affidavit before the tribunal and the affidavit in support of the writ petition, the learned Additional Advocate General sought leave of the Court and had filed additional affidavit and produced the original records based on which the said affidavit was filed. It is averred in Paras 5 and 6 of the additional affidavit as follows:
5. It is submitted that though the posts of Secondary Grade Teachers are continued to be the District Cadre posts by virtue of G.O.Ms. No. 529, Education, dated 14.05.1976, but as the said category of Secondary Grade Teacher is fallen within the purview of sub-para 2(a) of Para.8 of the Presidential Order, the ration 70:30 between the locals and non-locals was applied up to 2000. The Government issued G.O.Ms. No. 224, General Administration (SPF-A) Department, dated 30.06.2000 specifically applying Presidential Order for direct recruitment to all the posts under A.P. School Education Subordinate Services and all other similar/equivalent categories of posts of teachers in any department of the State Government and further issued G.O.Ms. No. 71, Education (SE-Ser.VI) Department, dated 30.06.2000 withdrawing the posts of School Assistants in Government Schools from the purview of A.P. Public Service Commission. The aforesaid G.O.Ms. No. 224, dated 30.06.2000 has been given retrospective effect w.e.f. 1.1.1994. It is submitted that the School Education Department has been implementing the Presidential Order all through and the Government in order to avoid ambiguity issued G.O.Ms. No. 224, dated 30.6.2000 specifically brining the posts of Education Department under Presidential Order.
6. It is further submitted that when the Government noticed that appointments made in certain departments in certain categories of posts were in deviation of the Presidential Order, issued orders in G.O.Ms. No. 610 General Administration (SPF) Department, dated 30.12.1985 for repatriation of employees appointed in deviation to Presidential Order, 1975. The Government again issued G.O.Ms. No. 674, General Administration (MC.II) Department, dated 07.09.2007 for review of appointments made in deviation to the Presidential Order, wherein it was stated that the ratio between locals and non-locals was to be applied for the posts of Secondary Grade Teachers and School Assistants as 80:20 and directed to review the appointments as per the said ratio. In pursuance of the same, the Government issued various G.Os including impugned G.O.Ms. No. 158, School Education Department, dated 02.12.2008 reviewing all the appointments made w.e.f. 1975 onwards in the ratio of 80:20 and passed orders for repatriation of teachers who were found in excess of the said ratio and who appointed against the vacancies meant for local cadres.
21. So far as the contesting respondent herein is concerned, Para 9 of the additional affidavit mentions that she belongs to Guntur local area but was selected and appointed as SGT in DSC-2000 in Medak District and posted at Upper Primary School, Chintalghat, Kohir Mandal, Medak District. Paras 9 and 10 of the said affidavit are appropriate to be extracted as under:
9. It is submitted that the respondent herein was selected as Secondary Grade Teacher in DSC 2000 of Medak district and posted at U.P. School, Chintalghat Village, Kohir Mandal. A total number of 1374 Secondary Grade Teacher posts are notified for DSC 2000 in Medak District. Out of the said 1374 posts (Telugu), backlog vacancies pertaining to the local cadre of DSC 1998 are 635. Again 65 Secondary Grade Teacher posts pertaining to DSC 1998 which were also meant for local cadre and though persons equivalent to the said posts were selected in DSC 1998, but their appointments were kept in abeyance due to Court cases. Hence, the remaining posts pertaining to DSC 2000 are only 674. Out of the said 674, 80% are meant for local cadres and 20% are meant for open category, that comes to 539:135. The break-up is as follows.
Total posts notified for SGT category : 1374Backlog vacancies : 635Unfilled vacancies of DSC 1998 : 65Current vacancies of DSC 2000 : 674Out of 674, 80% for local cadres : 539Out of 674, 20% for open category : 135Out of the aforesaid posts, the posts of 65 pertaining to DSC 1998 and whose appointments were kept in abeyance though notified once-again in DSC 2000 but appointments for persons who were selected in DSC 1998 itself are issued along with the persons selected in DSC 2000. The respondent whose native district is Guntur belongs to the local cadre of the said district. However, she was selected against a backlog vacancy of DSC 1998 in violation of the Presidential Order. The general merit list rank is 337 and according to the same, she would not have been selected at all for any post in DSC 2000. However, she was appointed against a backlog vacancy of DSC 1998 meant for local cadres. Hence, her initial appointment is in violation of the Presidential Order. However, the Government only transferred her from Medak district to her native district of Guntur. Transfer is an incident of service and no employee can refuse to work at any place wherever she/he is posted.
10. The petitioner BVN. Malleshwari a Non-local candidate was selected against the SGT posts under OC(W) Local quota and her name was written in the Roster Register of DSC 1998 under backlog vacancies of OC(W) Local post, as it was followed all the vacancies against the roster points which are unfilled in DSC 1998 are left blank in DSC 1998 roster register - IV & V, subsequently against the unfilled roster points of DSC 1998, name, community, Local/non-local status & DSC to which the candidate pertains to, of the selected candidate was mentioned in the Roster Register.
22. The learned Additional Advocate General, therefore, submits that the respondent, who is a non-local candidate, was selected and appointed under backlog vacancy pertaining to DSC-1998 under OC (W) local quota at Roster Point 50, Cycle No. XVIII of DSC - 1998. The said additional affidavit has annexed the notification and GO's including the DSC notification of the year 2000 as appended, the respondent having been appointed in the said DSC selections 2000, note I and II of the said notification are relevant and extracted herein:
Note:
(i) The rule of reservation to local candidates is applicable.
(j) The rule of special representation in the matter of appointment of candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, PHC and Women is applicable as per the orders issued in G.O.Ms. No. 65 G.A.D., dt. 15.02.1997.
23. While the respondent has filed counter affidavit to the writ petition, no additional counter affidavit has been filed to the extent of the said additional affidavit. In the said counter filed, the respondent contends that in the said DSC-2000 selections 1374 posts of SGT (Telugu) were notified in Medak District and on the date of recruitment 70% of the posts were reserved for local candidates and 30% were in open category. She further submits that she was selected as SGT in the open category on the basis of merit ranking and while she was appointed under the proceedings dated 08.11.2000, her services were regularized by order dated 24.07.2004. It is also contended that the ratio between the locals and non-locals was changed from 70:30 to 80:20 under G.O.Ms. No. 2 dated 03.01.2002 and G.O.Ms. No. 8 dated 08.03.2002 whereas she was appointed two year prior thereto and as such, under the subsequent categorization of proportion to 80:20 it cannot be said that the respondent is a non-local candidate occupying the post situated under local area. It is, therefore, asserted that, keeping in view, the available proportion of 70:30 on the date of appointment, the appointment of the respondent being within 30% available for open category, there is no violation of the Presidential Order and as such, the orders of the her repatriation as in the impugned GO, is clearly unsustainable.
24. Learned counsel for the respondent, on the aforesaid ground, justified the order passed by the tribunal. He also contended that the impugned order of repatriation violated the principles of natural justice also and in spite of the suspension of the said GO, her case is not being considered for promotion to the post of School Assistant only on the ground that she stands repatriated under the impugned GO. Learned counsel for the respondent, therefore, contends that the respondent had to approach the tribunal for consideration of her case for promotion and in spite of the interim order passed by the tribunal in the second instance also the said order remained unimplemented by the authorities. It is also contended that the stand of the petitioners that the respondent was appointed in the backlog vacancy of the local candidate is not substantiated. He also submits that the notification of 2000 did not mention about the backlog vacancy separately. It is also contended that even if there is any violation in her appointment against backlog vacancy, the petitioners ought to have rectified and adjusted the same as several subsequent DSC's were conducted and repatriation at this distance of time after 8 years of appointment is not justifiable. Learned counsel also contended that the carry forward rule is not available to the backlog vacancies after three years and in any case, the writ petition being directed against an interim order of the tribunal, this Court ought not to interfere.
25. We have considered the contentions on either side and we have heard this batch of cases on several dates before finally concluding the hearing on 11.12.2009.
26. At the outset, it has to be pointed out that in this entire batch of cases, the respondent has not questioned any of the earlier GO's as mentioned by the learned Additional Advocate General and only the present consequential G.O.Ms. No. 158 dated 02.12.2008 is questioned. Further, annexure to the said impugned GO itself categorically mentions that the appointment of the respondent was in a backlog vacancy reserved for locals. Admittedly, she does not belong to the local area of Medak District but belongs to Guntur local area. The present exercise of identification and repatriation is in terms of the mandate of the Presidential Order under Para 5(2)(c) and is in public interest. It is, therefore, evident that any order interdicting the impugned GO would certainly frustrate the Presidential mandate, as rightly contended by the learned Additional Advocate General.
27. Further, the pleadings of the respondent in O.A. No. 10431 of 2008 shows that in the said OA in para 6(a) the respondent admits that she has studied up to 10th class in Guntur District and she is in the local cadre of Guntur District. It is her specific case in the said para and subsequent paras that in the DSC - 2000 she was selected for the post of SGT as non-local candidate against clear vacancy of 30% open category. The basis of the said OA, therefore, was that her identification as liable for repatriation, is based upon the ratio of the locals and non-locals being treated as 80:20 as against 70:30, which was in force at the time of her recruitment in DSC-2000. As mentioned above, though the annexure to the GO impugned herein itself mentions that the respondent was appointed in local backlog vacancy, the said aspect was not contraverted in the OA. In fact, there is no reference with regard to the said local backlog category in which she was appointed. It is, therefore, to be concluded that the respondent did not contravert her status as being appointed in a backlog local vacancy.
28. Consequent on the above, the proportion of 70:30 between the locals and non-locals as contended by the respondent or the revised proportion of 80:20 as contended by the petitioners is really of no relevance when the appointment of the respondent itself is against the vacancy reserved for locals. During the hearing, the learned counsel for the respondent raised a contention that the said impugned GO is issued based upon the exercise of identification said to have been done by the Director of School Education, which is mentioned as reference 4 in the impugned GO. He submitted that the said proceeding has not been produced by the petitioners.
29. We had, therefore, directed the learned Additional Advocate General to produce the said proceedings and the same is accordingly produced duly giving a copy to the respondent. The Director of School Education under the aforesaid proceedings bearing Lr.Rc. No. 3734/F1-1/2008 dated 27.11.2008 addressed to the Principal Secretary to the Government, School Education Department, AP, mentioning that based on verifications and information furnished by the District Education Officer has submitted that repatriation of non-local teachers, who are appointed in DSC-2000 & 2001 were not traced out earlier but are now traced out and a list of 134 teachers was furnished. Learned Additional Advocate General also produced the original roster register and a Xerox thereof, was also furnished to us and to the respondent, which specifically shows that the vacancy in which the respondent was appointed was earmarked as OC (W) local quota at Roster Point 50, Cycle No. XVIII of DSC - 1998 and the same was carried forward and filled by the respondent in DSC - 2000. This would also answer the other contention of the learned counsel for the respondent that the said backlog vacancy is carried forward for more than three years and as such, the contention of the learned counsel for the respondent is liable to be rejected.
30. With respect to the contention of the learned counsel for the respondent that the said impugned GO violates the principles of natural justice, as countenanced by the learned Additional Advocate General by stating that all the earlier GO's which are referred to are, in fact, covered by the policy decision of the State under G.O.Ms. No. 610 dated 30.12.1985, which in turn is based upon the Presidential Order. The implementation of the said policy, therefore, is not required to be preceded by any notice. We are also of the view and it is now well settled that principles of natural justice cannot apply in straightjacket formula in each and every situation. Even if a prior notice had been given in the present case, the fact situation being the admitted appointment of the respondent against a reserved local post, no useful purpose would have been served as the said factual aspect, as stated above, is not contraverted even in the OA nor could have been contraverted by the respondent in the reply to such a notice, if it had been given. The formality of notice would have been wholly redundant and unnecessary on the facts and circumstances of the present case. The contention of the respondent, therefore, that the principles of natural justice are violated is also liable to be rejected.
31. Learned counsel for the respondent also raised a contention that the repatriation, which is ordered under the impugned GO is also unsustainable, as the said term would presuppose that the employee had worked earlier at the place of repatriation and since the respondent has, from the beginning, worked in Medak District, there is no question of her repatriation to Guntur District. It is true that the respondent has been appointed and is working in Medak District from the beginning, the word repatriation in the impugned GO is, therefore, not used in the sense in which it is understood in the service jurisprudence. The said repatriation as ordered in the impugned GO only means and refers to relegating the respondent to the local area to which she belongs so as to bring her appointment in conformity with the Presidential Order. The said impugned proceedings, therefore, merely amounts to transferring her to her local area to which she belongs. As mentioned above, while affecting the said transfer she is not put to any prejudice as she is being relegated to her own local area and her seniority is protected. The transfer of an employee being an incidence of service, the tribunal or the Court would normally be reluctant to interfere with the same unless exceptional grounds of want of jurisdiction or mala fides is made out. None of the said grounds are either alleged or exist on the facts and circumstances of the present case. We are, therefore, of the view that there was no warrant for the tribunal to interfere with the impugned GO especially as it was issued so as to implement the mandate under the Presidential Order.
32. Reliance is placed by the learned counsel for the respondent on a Full Bench decision of this Court in G. Anantha Reddy v. Andhra Pradesh Administrative Tribunal : 2002 (1) ALD 4 and particularly Para 76 thereof.
33. It is also brought to our notice that the Honourable Supreme Court in Civil Appeal No. 5141 of 2002 dated 09.10.2009 reversed the conclusions of the Full Bench so far as conclusions (b), (c) and (d) as recorded in the said judgment. The issue involved in the aforesaid decision is entirely different from the one arising in this batch of cases. The said decision, therefore, is of no assistance to the learned counsel for the respondent.
34. We are, therefore, of the view that the O.A. No. 10431 of 2008 filed by the respondent before the tribunal is itself misconceived and is liable to be dismissed and is accordingly dismissed. Consequently, the interim order passed by the tribunal on 15.12.2008 suspending G.O.Ms. No. 158 dated 02.12.2008 so far as the applicant/respondent herein is concerned stands vacated.
WP. No. 23391 of 2009 filed by the State is accordingly allowed.
WP. Nos. 15090, 15087 and 15131 of 2009:
35. As mentioned above, the decision in this batch of cases depends upon and is consequent upon the decision in WP. No. 23391 of 2009. However, it is necessary to deal with one principal contention raised by the learned counsel for the respondent regarding maintainability of these writ petitions.
36. Learned counsel contends that the orders impugned in the writ petition being WP. No. 15087 of 2009 field against the directions of the tribunal in contempt miscellaneous application being CMA. No. 168 of 2009 in C.A. No. 577 of 2009. Learned counsel submits that the said impugned orders are passed by the tribunal in exercise of its contempt/jurisdiction under Section 17 of the Administrative Tribunals Act. He, therefore, submits that in the light of the two Division Bench judgments of this Court a remedy before this Court under Article 226 of the Constitution of India is not available and as such, the said writ petitions are not maintainable. He has placed reliance upon judgment of the Supreme Court in T. Sudhakar Prasad v. Government of A.P. (2001) 1 SCC 516 and judgment of a Division Bench of this Court in Ch. Rama Rao v. State of A.P. 2001 (4) ALD 554 and an unreported judgment of another Division Bench of this Court in W.P. No. 24744 of 2003 and batch dated 03.12.2004.
37. Learned Advocate General, while refuting the said contention, has placed reliance upon decisions of the Supreme Court in Purushotam Dass Goel v. Hon'ble Mr. Justice B.S. Dhillon and Ors. : (1978) 2 SCC 370 and R.N. Dey v. Bhagyabati Pramanik : (2000) 4 SCC 400 and has distinguished the decisions in Sudhakar Prasad's case (2 supra) and Ch. Rama Rao's case (3 supra).
38. Section 19 of the Contempt of Courts Act provides an appeal against any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. The above provision was considered and interpreted by the Supreme Court in several decisions but for our purposes it would be useful to notice the decision of the Supreme Court in State of Maharashtra v. Mahboob S. Allibhoy 1996 (4) Supreme 55. The following extract thereof from para 3 thereof would clearly show the distinction pointed out.
3. ...As Sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order, an impression is created that an appeal has been provided under the said Sub-section against any order passed by the High Court while exercising the jurisdiction of contempt proceedings. The words 'any order' has to be read with the expression 'decision' used in said Sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. 'Any order' is not independent of the expression 'decision'. They have been put in an alternative form saying 'order' or 'decision'. In either case, it must be in the nature of punishment for contempt. If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under Sub-section (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result.
In Purushotam Dass Goel's case (4 supra) the relevant portion of para 3 is as follows:
3. ...No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under Section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court....
The Supreme Court in Sudhakar Prasad's case (2 supra) held at para 17 as under:
17. ...The need for enacting Section 17 arose, firstly, to avoid doubts, and secondly, because the Tribunals are not 'courts of record'. While holding the proceedings under Section 17 of the Act the tribunal remains a tribunal and so would be amenable to the jurisdiction of the High Court under Articles 226/227 of the Constitution subject to the well-established rules of self-restraint governing the discretion of the High Court to interfere with the pending proceedings and upset the interim or interlocutory orders of the tribunals. However, an order or decision of the tribunal punishing for contempt shall be appelable only to the Supreme Court within 60 days from the date of the order appealed against in view of the specific provision contained in Section 19 of the Contempt of Courts Act, 1971 read with Section 17 of the Administrative Tribunals Act, 1985.
In Ch. Rama Rao's case (3 supra), the decision of Purushotam Dass Goel's case (4 supra) was noticed and the Division Bench of this Court in para 25 made a significant observation, which is quoted below:
25. The matter would have been otherwise dealt with, had we come to the conclusion that the appeal was not maintainable or the tribunal had acted without jurisdiction in passing the impugned order....
Even in R.N. Dey's case (5 supra) the ratio of Purushotam Dass Goel's case (4 supra) is followed and the said question of maintainability of appeal was not required to be decided.
39. So far the unreported decision of a Division Bench of this Court, referred to above, is concerned; it is, no doubt, true that the said writ petitions were rightly not entertained by the Division Bench as under Section 17 of the Contempt of Courts Act, an appeal lay against the impugned order therein. The impugned order dated 20.11.2003 in the said decision was extracted at page Nos.7 and 8 of the said judgment wherein the tribunal had punished the contemnor to undergo 15 days simple imprisonment and Rs. 200/- fine, in default 3 days jail. Subsequent to the passing of the aforesaid said, the contemnor agreed to implement the orders and thereafter, the affidavits of the complainants were received in the shape of an undertaking to comply. It is the aforesaid, which was in question before the Division Bench. Since the contemnor was clearly punished by the said order, the Division Bench rightly said that only an appeal under Section 19 is maintainable against the aforesaid order. The facts, therefore, in the above decision are distinguishable form the facts of the present case. In view of the ratio of the decision of the Supreme Court in Purushotam Dass Goel's case (4 supra) and State of Maharashtra's case (6 supra), the impugned orders in the cases on hand being not one punishing the contemnor, it cannot be said that an appeal lies under Section 19 of the Contempt of Courts Act. Consequently, therefore, these writ petitions are maintainable and the objections in that regard raised by the learned counsel for the respondent is liable to be rejected.
Consequently, therefore, in view of our decision in WP. No. 23391 of 2009 above, WP. Nos. 15087 and 15131 of 2009 also deserve to be allowed and are accordingly allowed. Insofar as WP. No. 15090 of 2009 is concerned, respondent No. 6 is the applicant No. 6 in O.A. No. 894 of 2009 and she sought for a direction along with others to consider their cases forthwith for promotion to the post of School Assistant as per their seniority as SGT in Medak District. The OA's said to have been filed by others challenging similar repatriation orders are not mentioned in the OA. The repatriation orders of B.V.N. Malleswari in G.O.Ms. No. 158 dated 02.12.2008 as questioned in O.A. No. 10431 of 2008 are held to be legal and valid and therefore, WP. No. 23391 of 2009 filed against the order of the tribunal dated 12.12.2008 in O.A. No. 10431 of 2008 is allowed and the OA also is dismissed. Therefore, the grievance of R6 in WP. No. 15090 of 2009 and in O.A. No. 894 of 2009 does not survive and We, therefore, allow WP. No. 15090 of 2009 insofar as R6 is concerned against her and OA.No.894 of 2009 stands dismissed insofar as applicant No. 6 therein is concerned.
WP. No. 21026 of 2009:
40. As already mentioned above, firstly a Writ of Mandamus does not lie and secondly, invocation of jurisdiction of this Court directly does not arise when the subject matter relates to service dispute amenable exclusively to the jurisdiction of the tribunal. Thirdly, the relief sought for and the issue involved does not any more survive in view of our decision in WP. No. 23391 of 2009. This writ petition is, therefore, clearly misconceived and liable to be dismissed on more than one grounds.
Accordingly, the writ petition is dismissed.
C.C. Nos. 1377. 1378 and 1379 of 2009:
41. In view of our order in WP. No. 23391 of 2009, the very basis of the subsequent OA's and directions therein stands negatived. Para 11 of the order of the Division Bench of this Court dated 04.08.2009 was interim in nature and secondly the said order has to be read in entirety along with Paras 10 and 12 thereof. Once the petitioner in a contempt case was relegated to her local area, the counseling with regard to her promotion has to be within the same local area where she is transferred. The orders of the tribunal, in any case, were suspended by this Court by same order dated 04.08.2009. However, the observations in Para 11 of the order of the Division Bench, which is the subject matter of these contempt cases does not survive on its own without a conjoint reading of the said entire order.
42. We are, therefore, of the view that the contempt cases are also misconceived and in any case, they do not survive after our decision in WP. No. 23391 of 2009.
The contempt cases are accordingly dismissed.
In the result, WP. Nos. 23391, 15090, 15087 and 15131 of 2009 filed by the State are allowed and WP. No. 21026 of 2009 and C.C. Nos. 1377, 1378 and 1379 of 2009 filed by the respondent are dismissed. There shall be no order as to costs.