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Andhra High Court · body

2001 DIGILAW 1478 (AP)

Government Of A. P. v. K. Lakshmi Narasaiah

2001-11-19

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, CJ, J. ( 1 ) THE original applicants-respondents herein are the members of the A. P. Educational subordinate Service. The Government of andhra Pradesh, Writ Petitioner No. 1 herein, in purported exercise of powers conferred on it by the proviso to Article 309 of the constitution of India read with clause (a) of sub-section (1) of Section 78 of the Andhra pradesh Education Act, 1982 (Act 1 of 1982) read with sub-section (4) of Section 169 and sub-section (4) of Section 195 of the Andhra ptadesh Panchayat Raj Act, 1994 (Act No. 13 of 1994) and in supersession of Andhra pradesh Mandal Praja Parishad and Zilla parishad Teachers (Regulation of Transfers) rules, 1998 issued in G. O. Ms. No. 205, dated 6-7-1998 and orders issued in G. O. Rt. No. 495, Education (Ser. VI) Department, dated 20-9-2000 and other orders issued on the subject, made rules, known as Andhra pradesh Teachers (Regulation of Transfer) rules, 2000 (hereinafter called for the sake of brevity as the said Rules ). By issuing notification G. O. Ms. No. 128, Education (Ser. VI) Department, dated 6-10-2001, the state inserted clause (vii) to Rule 6 of the said Rules which reads:" (VII) The teachers under Class-I of Andhra pradesh School Educational Subordinate service i. e. , School Assistants and equivalent categories and Class-III i. e. , Secondary grade Teachers and equivalent categories who have completed three (3) years of service at a particular station alone are eligible for transfer. "validity and/or Applicability of G. O. Ms. No. 128, dated 6-10-2001 is the question involved in this batch of writ applications. The said rules provide for constitution of mandal, District and Regional Level committees. The rules also provide for process of counselling in terms whereof widows, Physically Handicapped, spouse working in Government/zilla Parishad/ mandal Parishad Schools, spouse working in Government/local Bodies, The Principal office Bearers (State/district President and one Secretary) of the Recognised teacher s Unions and other teachers ought to be considered on the basis of the said seniority. The note appended to Rule 5 states that:"under the husband and wife category, one spouse shall be transferred to the place of another if vacancy exists. If such vacancy does not exist, they may be asked to choose the vacant post available within 15 kms. from the place of any of spouses. The note appended to Rule 5 states that:"under the husband and wife category, one spouse shall be transferred to the place of another if vacancy exists. If such vacancy does not exist, they may be asked to choose the vacant post available within 15 kms. from the place of any of spouses. "rule 6 of the said Rules provides for criteria for Transfers , in terms whereof, the teachers are not to be posted to their native Mandals. Rules 7, 8 and 9 provide for entitlement of Points which Mandals. Rules 7, 8 and 9 provide for entitlement of points which are necessary to be taken into consideration for the purpose of giving priority to those teachers for transfer. Rule 11 provides for forwarding of application. The procedure to be followed for transfer to other Mandal has been laid down in Rule 12. The data in the applications received seeking transfer ought to be computerised under Rule 13. Rule 14 provides for arrangement of applications category-wise. Rule 23, which provides for schedule for Transfer is relevant for the purpose of this batch of cases. It reads:"commissioner and Director of School education, Hyderabad is permitted to draw the schedule and communicate to the competent authority to effect the transfers. "rule 25 provides for the procedure as regards exception to the applicability of the said rules in respect of transfers to be made after the communication of the schedule by the Director of School Education during the academic year as specified therein. An appeal is provided from the decision of mandal Level Committee to the District level Committee under clause (i) of Rule 26. A further appeal lies against the decision of the District Level Committee or Regional level Committee to the Secretary to government, Education Department under clause (iii) of Rule 26. Power is conferred upon the State to entertain appeals either suo motu or on application from any person aggrieved by the decisions from the Mandal, district and Regional Level Committees in terms of Rule 27. ( 2 ) IN purported exercise of power conferred upon him under Rule 23, the commissioner and Director of School education issued two proceedings dated 24-9-2001 providing for guidelines for transfer of teachers to the posts in District Level as also Mandal Level respectively. ( 2 ) IN purported exercise of power conferred upon him under Rule 23, the commissioner and Director of School education issued two proceedings dated 24-9-2001 providing for guidelines for transfer of teachers to the posts in District Level as also Mandal Level respectively. Clauses 9 and 10 of the said proceedings read thus: district Level Posts: (9) The transfer counselling for School assistants in Upper Primary and High schools is on 18-10-2001 (3 years of stay at the present place of working is essential as on 5-10-2001) (10) The transfer counselling for Language pandits Gr-I and Physical Directors Gr-II in High Schools is on 20-10-2001 (3 years of stay at the present place of working is essential as on 5-10-2001) mandal Level Posts: (9) The transfer counselling for allotment to z. P. /mandal (SGTs) from Z. P. /mandal of the same District is on 27th and 28th october, 2001. (3 years of stay at the present places of working is essential as on 5-10-2001) (10) The transfer counselling for allotment to z. P. / Mandal (SGTs) from other Districts is on 29-10-2001. They may be allowed to Z. P. /mandal on the basis of the service seniority. " ( 3 ) VARIOUS original applications were filed before the learned Andhra Pradesh administrative Tribunal questioning the said two proceedings dated 24-9-2001 inter alia on the ground that while exercising his power in drawing the schedule, an additional condition of 3 years stay at the present place of working as on 5-10-2001 could not have been imposed by the Commissioner for consideration of transfer cases. ( 4 ) IT is not in dispute that during pendency of the said applications, G. O. Ms. No. 128 dated 6-10-2001 was issued. Before the learned Tribunal, the validity or otherwise of the aforementioned G. O. Ms. No. 128 was also questioned. The learned Tribunal, however, in terms of the impugned judgment without going into the aforementioned question, directed:"no doubt, it was also urged that the right accrued under the G. O. Ms. No. 118 dated 20-9-2000 cannot be taken away by the amended rule, issued in the impugned G. O. Further, based on Section 19 (4) of the administrative Tribunals Act, it was also contended that as number of O. As, were pending, the impugned G. O. is liable to be quashed. In the given circumstances, this aspect need not be gone into. In the given circumstances, this aspect need not be gone into. , Suffice it to say that in earlier cases a direction is given to the respondents to receive all the applications which were submitted to the concerned on or before 5-10-2001 and allow such applicants for counselling and their cases shall be considered for transfers as per their preferences, based on their entitlement points. The other aspects raised both by the counsel for the applicants and the learned government Pleader need not be gone into in these O. As. There is also no need to quash the impugned G. O. Ms. No. 128, dated 6-10-2001. But the impugned proceedings dated 24-9-2001 issued by the Commissioner and Director of School Education are liable to be quashed and they are accordingly quashed. All the O. As are allowed to the limited extent that if the applicants submitted their respective applications on or before 5-10-2001 to the concerned authorities, they shall be processed and they shall be called for counselling and based on their entitlement points they shall be given postings as per their preferences. All the head Masters and the competent authorities to whom the applications were submitted on or before 5-10-2001 are directed to forward their applications to the concerned authorities including District Educational Officers on or before 17-10-2001. " ( 5 ) THE learned Additional Advocate-General appearing on behalf of the writ petitioners in this batch of writ petitions inter alia submitted that the impugned order could not be sustained on the grounds viz. , (1) the Respondent - Applicants have no vested rights of transfer; and (2) the learned tribunal without declaring the G. O. Ms. No. 128, Education (Ser. VI) Department, dated 6-10-2001, as ultra vires could not have been issued the impugned directions which in effect and substance would run contrary to the statutory Rule. ( 6 ) IN support of the said contentions strong reliance has been placed on the decisions of the Apex Court in V. Kamal durai v. District Collector, (1999) 1 SCC 475 , Union of India v. Kirloskar Pneumatic co. , Ltd. , (1996) 4 SCC 453 , as also State of bihar v. Ram Deo Yadav, (1996) 3 SCC 493 . ( 7 ) AS regard observations made by the learned Tribunal to the effect that issuance of the said G. O. Ms. , Ltd. , (1996) 4 SCC 453 , as also State of bihar v. Ram Deo Yadav, (1996) 3 SCC 493 . ( 7 ) AS regard observations made by the learned Tribunal to the effect that issuance of the said G. O. Ms. No. 118 would be contrary to Section 19 (4) of the administrative Tribunals Act, the learned additional Advocate-General would submit that the said provision has no application in relation to issuance of statutory Rules by the state to which it is entitled to under the statute and/or proviso to Article 309 of the constitution of India. ( 8 ) M/s. Satya Prasad, Krishna Murthy and Raja Reddy, learned Counsel appearing on behalf of the applicants - respondents supported the impugned judgment passed by the learned Tribunal. The main contentions of the learned Counsel are: (I) The G. O. Ms. No. 118 dated 20th september, 2000 gave a right in favour of the applicants for being considered for transfer which cannot arbitrarily be taken away after commencement of schedule; (II) In any event, the impugned rule must be held to have prospective operation inasmuch as if the same is given retrospective effect, it would violate the fundamental rights of the original - applicants; (III) The date of counselling must be held to be the cut-off date beyond which, the impugned rule cannot apply. In any event, the said amendment would run contrary to the privileges granted to a section of the teachers as referred to in the aforementioned Rule 5 of the said Rules. (IV) Having regard to the facts and circumstances of this case, the impugned Rule must be held to be a colourable exercise of power on the part of the State. Strong reliance in support of the said contentions has been placed upon the decisions of the Apex Court in Union of india v. Tushar Ran/an Mohanty, (1994) 5 scc 450 = 1994 (4) SLR 475, N. T. Bevin katti v. Karnataka Public Service commission, (1990) 3 SCC 157 = AIR 1990 sc 1233 , State of Gujarat v. Raman Lal keshav Lal Soni, (1983) 2 SCC 33 , State of punjab v. Gurudial Singh, (1980) 2 SCC 471 , Collector v. Raja Ram Jaiswal, (1985) 3 SCC 1 as also Mohinder Singh v. Chief Election Commissioner, AIR 1978 sc 851 . ( 9 ) HAVING regard to the rival contentions advanced on behalf of the parties, the principal questions which, in our opinion, arise for consideration are as to (1) whether transfer is a condition of service and (2) whether by reason of the aforementioned g. O. Ms. No. 118, a vested right had accrued in favour of the original applicants for being considered for transfer as and when schedule therefor is notified. ( 10 ) THE expression condition of service may be of wide amplitude. Some of the conditions of service vest a right upon the employee whereas some of them vest a right for being considered. Some of them may merely be incidence of service whereas salary pension etc. , are rights under article 300-A of the Constitution of India. There cannot be a right of appointment or a right of promotion etc. In terms of article 16 of the Constitution of India, only concerned persons have aright to be considered therefor if they otherwise fulfil the criteria laid down therefor. Transfer, as is well known, is an incidence of service. An employer is the competent person, it is trite, to post a particular person at a particular place. In terms of the provisions contained in the Andhra Pradesh Education Act, 1982, and the rules framed thereunder, the employee does not have any right to be posted at a place of his choice. ( 11 ) IT may be true that in terms of g. O. Ms. No. l18 dated 20th September, 2001, rules have been framed fixing the criteria for transfer as well as laying down the mode and manner therefor. It is not disputed that prior to coming into effect of the impugned G. O. Ms. No. 128, dated 6-12-2001, no embargo was placed upon any person to make a request for transfer. When requests for transfers are made by way of applications by persons eligible therefor, such applications are required to be forwarded to the respective committees which are required to be considered by them in terms of the rules. Do the applicants concerned derive any right in terms of the rules for transfer only because they had requested therefor is the question which has to be posed and answered in this batch of writ petitions. Do the applicants concerned derive any right in terms of the rules for transfer only because they had requested therefor is the question which has to be posed and answered in this batch of writ petitions. ( 12 ) THERE cannot be, however, any doubt whatsoever, that the Commissioner and Director of School Education who has been delegated with the power to draw the schedule in terms of Rule 23 had no jurisdiction to go beyond the same and direct that the three years of stay at the present place of working is an essential condition for being considered for transfer counselling. ( 13 ) A right to be transferred, in our considered opinion, in terms of the said rules, is neither a vested right nor an accrued right. Therefore, the question of g. O. Ms. No. 128 dated 6-10-2001 being ultra vires of Article 14 of the Constitution of India as thereby a right has been taken away cannot be countenanced. By reason of the impugned amendment an eligibility clause for consideration for the request of transfer had been made. By reason of such amendment the persons coming thereunder are a class by themselves. The rules which are required to be applied in case of this nature would be those that are existing on the date when counselling takes place and not prior thereto. If on the date of counselling, the impugned rules comes into effect, the authorities who were to act within the four corners thereof, would not have been in a position to ignore the said rule for the purpose of considering as to whether the essential conditions laid down therefor had been fulfilled or not. Only because the commissioner has issued two proceedings on 24-9-2001 fixing dates for counselling for different categories of employees, the same by itself, in our opinion, would not entitle the applicants to contend that by reason of the impugned notification their accrued rights had been taken away. ( 14 ) A distinction in law exists even between a vested right and an accrued right. A distinction also should be borne in mind between a right and a privilege. A right is also varied from stage to stage. In P. Bhaskaran v. Additional Secretary, Agrl. (Co-op) deptt. , Trivandrum, AIR 1988 Ker. ( 14 ) A distinction in law exists even between a vested right and an accrued right. A distinction also should be borne in mind between a right and a privilege. A right is also varied from stage to stage. In P. Bhaskaran v. Additional Secretary, Agrl. (Co-op) deptt. , Trivandrum, AIR 1988 Ker. 75 (FB), a Full Bench of the Kerala High Court made a distinction between a right and a privilege stating that whereas privilege is permissible, right is prerogative. ( 15 ) AS indicated hereinbefore, a right conferred by a statute must be held to be a higher right than a right to be considered. In terms of rule made under a statute in exercise of the powers conferred by the proviso appended to Article 309 of the constitution of India, even a right of an employee can be taken away by giving retrospective operation thereto. ( 16 ) HOWEVER, in a case of this nature, no right has been taken away by the impugned amendment. Only an eligible criteria has been fixed so as to enable the appropriate committees to consider as to whether the requests of the applicants can be considered or not. In the aforementioned background, the decisions cited at the Bar may be taken into consideration. ( 17 ) IN Raman Lal Keshav Lal soni s case (supra), the Apex Court was considering the vires of Gujarat Panchayats (Third Amendment) Act, 1978. The said amendment Act was held to be unconstitutional as it offended Articles 311 and 14 of the Constitution of India. It was held in that case that prior to the amendment Act came into force, concerned employees had achieved the status of government servants and such a status could not have been extinguished. It was further held that by the Amending Act one section of the employees were sought to be meted out differential treatment from the other section in violation of Article 14 of the Constitution of India. ( 18 ) IN N. T. Bevin Katti s case, an advertisement was issued inviting applications for direct recruitment to a category of posts specifying the extent of reservations to be made in favour of various categories. The selection of candidates in such a case must be made in accordance with the then existing rules and Government orders. ( 18 ) IN N. T. Bevin Katti s case, an advertisement was issued inviting applications for direct recruitment to a category of posts specifying the extent of reservations to be made in favour of various categories. The selection of candidates in such a case must be made in accordance with the then existing rules and Government orders. As the candidates who had applied pursuant to the said recruitment notification were held to have acquired right for being considered for selection in accordance with the rules as existed on the date of advertisement, the Apex Court observed that they could not have been deprived of their limited right on the amendment of rules during the pendency of selection unless the amended rules were given retrospective effect. To state the facts of the case in brief, the Karnataka Public Service Commission issued a notification on 23-5-1975 inviting applications from in-service candidates for recruitment to 50 posts of Tahsildars specifying details of posts reserved in favour of candidates belonging to Scheduled Castes, scheduled Tribes and other Backward classes including posts set apart for Ex-Military personnel. Pursuant to the advertisement, the appellants before the supreme Court who were in-service candidates of the State Government, applied for selection and appointment to the said posts of Tahsildars. After written and viva voce tests, a list of successful candidates was published by the Commission. In preparing the select list and making reservation to the various categories, the commission followed the directions and the procedure as contained in the Government order dated 6th September, 1969. The state Government, however, refused to approve the said list and directed the commission to prepare a fresh list in accordance with the directions and procedure contained in the Government Order dated 9th July, 1975 issued subsequent to the date of the said notification. In the fresh list prepared, the appellants name did not figure. In that factual back-drop, the Apex Court held that the Government s order directing to prepare a fresh list in terms of Government order dated 9th July, 1975 is illegal and the procedure prescribed therein would not apply to the select list already prepared in the first instance. Consequently, the Apex court also declared the select list prepared afresh as illegal. Consequently, the Apex court also declared the select list prepared afresh as illegal. ( 19 ) SUCH is not the position in the instant case inasmuch as a right of transfer is not even a right which can equated to be considered for appointment. ( 20 ) IN Tushar Ranjan Mohanthy s case (supra), the respondent therein was held to have acquired an accrued right vested in him by reason of the statutory provisions following the decision of the Apex Court in raman Lal Keshav Lal Soni (supra) and other decisions. It was also held that when a person is deprived of an accrued right vested in him under a statute or under the constitution and he successfully challenges the same in a Court of law, the Legislature cannot render the said Tight and the relief obtained nugatory by enacting retrospective legislation. ( 21 ) IN the instant case, the respondents- applicants did not acquire any right by reason of any judgment or order passed by a court of law nor acquired any right by reason of any statutory or constitutional provision. ( 22 ) IN Karrnal Durai s case (supra), the Apex Court referred to its earlier judgment reported in State of Tamilnadu v. M/s. Hind Stone, (1981) 2 SCC 205 = (1981) 2 SCR 742 = AIR 1981 SC 711 , wherein it was held. "while it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. " ( 23 ) SO far as the submission of the learned Counsel that the impugned amendment suffers from a vice of colourable exercise of power and the same amounts to fraud of power is concerned, we are of the opinion that the same cannot have any application whatsoever. ( 24 ) IN State of Punjab v. Gurudial singh (supra) the Apex Court was considering the question of a mala fide action in administrative law. Malice either on fact or in law is not at all relevant for the purpose of striking down a statute or a statutory rule. A statute, however, can be rendered invalid if the same suffers from the vice of colourable exercise of power. What is to be seen here is that the legislative body had the requisite legislative competence or not. Once it is held that requisite legislative competence existed in the legislative body, the doctrine of colourable exercise of power or fraud on legislative power would also not arise. ( 25 ) THE decision of the Apex Court in Mohinder Singh s case (supra) cannot also have any application in the instant case. In that decision, the Apex Court merely held that when a statutory authority passes an order, the reasons contained therein cannot be supplemented by affidavits. In the instant case, the said question does not arise at all inasmuch as during the pendency of the original applications, the State has merely amended the rule to which it is entitled to. ( 26 ) THE learned Tribunal, as noticed hereinbefore, issued a direction directing the respondents herein to process the applications, which are filed on or before 5-10-2001. Such a direction had been issued without holding G. O. Ms. No. 128 dated 6-10-2001 as invalid or as ultra vires. A direction, as is well known, cannot be issued by a Court which would be contrary to a statutory rule. (See Kirloskar Pneumatic company s case (supra ). Such a direction had been issued without holding G. O. Ms. No. 128 dated 6-10-2001 as invalid or as ultra vires. A direction, as is well known, cannot be issued by a Court which would be contrary to a statutory rule. (See Kirloskar Pneumatic company s case (supra ). Similarly, neither a direction can be issued in contravention of a Law nor can the Government be directed to disobey the law (State of Bihar v. Ramdeo yadav and Union of India v. Kirloskar pneumatic Co. , Ltd. (supra) ( 27 ) AS regard the submission that the said rule would take away the preferences conferred upon a section of the employees is concerned, in our opinion, the same is not of much relevance. The question of giving preferences of priority would arise only when the concerned employees become entitled thereto and not otherwise. ( 28 ) HOWEVER, the amended rule does not suggest as to what would be the relevant date for the purpose of counting the period of three years. Normally the date which is specified in the notification should be the date in the absence of any statutory rule in this regard. The learned Additional advocate-General does not dispute this position. ( 29 ) IN the instant case, the applicants have already filed their applications pursuant to the aforementioned proceedings dated 24-9-2001 and/or pursuant to the interim directions that had been issued by the learned Tribunal. Their applications have already been processed. In fairness to the original applicants, we are of the opinion that the cases of those teachers who had completed 3 years of service at a particular station as on the date of consideration of their cases by the respective committees should be reckoned as the date so far as the applicability of the amended Rule 6 (vii) is concerned. We make it clear that the aforementioned directions are issued having regard to the fact that the process of counselling is commenced and applications have been received by the appropriate authorities either in terms of the old rules or in terms of the interim orders passed by the learned Tribunal. We have also noticed in this context the Tribunal s direction to consider the cases of those applicants whose applications have been received on or before 5-10-2001 presumably because the said date was fixed by the Commissioner in terms of the aforementioned proceedings dated 24-9-2001. We have also noticed in this context the Tribunal s direction to consider the cases of those applicants whose applications have been received on or before 5-10-2001 presumably because the said date was fixed by the Commissioner in terms of the aforementioned proceedings dated 24-9-2001. ( 30 ) FOR the reasons aforementioned, these writ petitions are allowed subject to the observations and directions made by us above. There shall be no order as to costs.