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2021 DIGILAW 34 (AP)

Kavali Daiva Krupa v. State of Andhra Pradesh

2021-01-25

M.SATYANARAYANA MURTHY

body2021
ORDER : 1. This writ petition is filed under Article 226 of the Constitution of India claiming the following relief : “to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent 1 3 to 5 in issuing the proceedings Rc.No.13029/11/2020-Estd 3 of respondent No.3 in pursuance of G.O.Ms.No.53 and 54 School Education Service-II Department dated 12.10.2020 of the respondent No.1 without implementing G.O.Ms.No.116 MA & U (D1) dated 10.3.2019 issued by the 2nd respondent as illegal arbitrary in violation of the provisions of the A.P. Municipalities Act 1994 apart from violation of Articles 14, 19 and 21 of the Constitution of India and consequently direct the respondent Nos. 1, 3 to 5 and 7 not to transfer the petitioners from the Government Model School Santapet pursuant to the proceedings Rc.No.13029/11/2020 Estd-3 of respondent No 3 in pursuance of G.O.Ms.No.53 and 54 School Education Service-II Department dated 12.10.2020 of the respondent No1” 2. The petitioners in the writ petition are working as teachers/school assistants in Government Model School, Santhapet, Nellore and transfers of the teachers from Government Model School are also included in proceedings Rc.No.13029/11/2020 Estd-3, in pursuance of G.O.Ms.No.53 and 54 School Education Service-II Department dated 12.10.2020. 3. The Municipal Administration and Urban Development (ELEC II) issued G.O.Ms.No.113 dated 25.03.2013 issued notification for merger of the villages mentioned therein into Municipal Corporation. Thereafter, the second respondent issued Memo dated 26.02.2019 directing the Regional Directors in the State to furnish information with regard to the Government, Zilla Parishad, Mandal Parishad and private aided schools to merge the villages in the urban areas, Municipalities/Municipal Corporations under Section 3(2) of the Municipalities Act vide G.O.Ms.No.116 dated 10.03.2019 issued by the second respondent to entrust the administrative control and management of the schools in the corporation in terms of Section 16(6) of the Andhra Pradesh Municipal Corporation Act. Accordingly, the petitioners have exercised their options giving willingness to the seventh respondent to work in the schools under the administrative control and management of Nellore Municipal Corporation with a legitimate expectation that they will be absorbed in the schools under the administrative control and management of Nellore Municipal Corporation. Accordingly, the petitioners have exercised their options giving willingness to the seventh respondent to work in the schools under the administrative control and management of Nellore Municipal Corporation with a legitimate expectation that they will be absorbed in the schools under the administrative control and management of Nellore Municipal Corporation. But, without taking into consideration of G.O.Ms.No.116 dated 10.03.2019 and G.O.Ms.No.113 dated 25.03.2013, notification was issued for notifying schools in government model schools along with zilla parishad schools under the administrative control and management of Panchayat Raj Department, thereby, the petitioners will be deprived to work in the schools within the Nellore Municipal Corporation in the event of their transfer to other schools and requested to issue a direction as claimed by these petitioners. 4. Learned counsel for the respondents did not file any counter affidavit, but advanced arguments and it will be considered at appropriate stage. 5. Sri M. Srikanth, learned counsel appearing for the implead petitioners in I.A.No.3 of 2020/ proposed Respondent Nos. 8 & 9, filed counter affidavit in I.A.No.74 of 2020. 6. The proposed Respondent Nos. 8 and 9 filed counter affidavit, denying material allegations, inter alia, contending that the proposed respondents are all working as Secondary Grade Teachers and School Assistants in various Schools which are under the administrative control and management of the Education Department and that the interim directions granted by this Court in the writ petition, directing the said posts, in which the petitioners in the main writ petition are working, to be withdrawn from the transfer counselling and the posts to be blocked until further orders, has affected the petitioners adversely. In the normal course, the said posts, the petitioners have a legitimate chance to be considered for being transferred to those posts as per the transfer counselling. It is submitted that the writ petition itself is misconceived and various pleas of the writ petitioners are wholly untenable and the petitioners cannot legitimately claim that they are entitled to continue in the same school on the ground that the jurisdiction of the Municipal Corporation has been extended. As on date, the government has not taken any policy decision to transfer the management of the schools situated within the erstwhile village panchayats merged with the Municipal Corporation to give administrative control and management to Nellore Municipal Corporation. As on date, the government has not taken any policy decision to transfer the management of the schools situated within the erstwhile village panchayats merged with the Municipal Corporation to give administrative control and management to Nellore Municipal Corporation. Till such policy decision is taken by the Government, the petitioners are not entitled to claim any relief in the petition. 7. It is also contended that, a similar question was considered by Division Bench of this Court in Smt. M. Vijaya Lakshmi v. Government of Andhra Pradesh, W.P.No.36970 and 37342 of 2013 dated 10.04.2014 and held that, the persons working in Zilla Parishad and Mandal Praja Parishad have no right to claim that the transfers actually have no application to them has already been considered and rejected while holding that, in such cases, the claims are premature and the Government has not taken any decision and they cannot have any right to continue in the same place and that they are bound by the government transfers and requested to dismiss the writ petition filed by the writ petitioners in the writ potions. 8. During hearing, learned counsel for the petitioners Sri V.R. Machavaram, contended that, since the petitioners exercised their option, they are deemed to be employees under the administrative control and management of the Nellore Municipal Corporation and the schools are situated within the territorial jurisdiction of the Municipal Corporation, though the schools were located in the erstwhile village panchayats which are merged with the Municipal Corporation under Section 3(2) of the Hyderabad Municipal Corporations Act, thereby, the petitioners are deemed to be the employees and exercise of option in terms of Section 16(6) of the Andhra Pradesh Municipal Corporations Act, 1994, in view of vesting of management of those schools on the Municipal Corporation, in pursuance of G.O.Ms.No.116 dated 10.03.201 and G.O.Ms.No.113 dated 25.03.2013 issued by the State Government. In case, these vacancies are also included in the counselling, their right to continue to work in the schools under Nellore Municipal Corporation gets defeated and they will be put to serious loss and requested to issue a direction as stated supra. 9. In case, these vacancies are also included in the counselling, their right to continue to work in the schools under Nellore Municipal Corporation gets defeated and they will be put to serious loss and requested to issue a direction as stated supra. 9. Whereas, learned Government Pleader for Services disputed the latches of these petitioners, the claim of continuation of these petitioners in the same school, since no policy decision was taken to give administrative control and management over the Government Model School to the Nellore Municipal Corporation, as they belong to the Government and the guidelines under G.O.Ms.No.53 and 54 School Education Service-II Department dated 12.10.2020 are applicable to the present facts of the case and requested to dismiss the writ petition. 10. Sri M. Srikanth, learned counsel for the implead petitioners/proposed Respondent Nos. 8 & 9 supported the contention of the Government, while drawing attention of this Court to judgment of the Division Bench of this Court in Smt. M. Vijaya Lakshmi v. Government of Andhra Pradesh (referred supra) to contend that, until the options are called for by the concerned department and accepted by the department, the administrative control and management is not deemed to have been vested on the Municipal Corporation and mere unilateral exercise of option opting to continue to serve in Government Model School situated within the Municipal Corporation limits is not sufficient to accept the contention of these petitioners. Apart from that, the employees of the government schools are covered by presidential order and they cannot be transferred to the Municipal Corporation in terms of the judgment of Division Bench of High Court of Judicature at Hyderabad in Government of Andhra Pradesh v. P. Vema Reddy and others (referred supra) and requested to dismiss the writ petition. 11. Undoubtedly, the petitioners are working in the Government Model School, Santapet situated within the erstwhile village panchayats merged with the municipal corporation in terms of G.O.Ms.No.113 dated 25.03.2013. Whereas, the proposed respondents are working within the schools located in the village panchayats under the administrative control and management of Panchayat Raj Department and Education Department. 11. Undoubtedly, the petitioners are working in the Government Model School, Santapet situated within the erstwhile village panchayats merged with the municipal corporation in terms of G.O.Ms.No.113 dated 25.03.2013. Whereas, the proposed respondents are working within the schools located in the village panchayats under the administrative control and management of Panchayat Raj Department and Education Department. Their apprehension is that, in case these schools are not included in the transfer counselling, their legitimate expectation to work in the Government Model Schools will be defeated and they will be deprived of their right to work in the Government Model Schools and that, mere issue of G.O.Ms.No.116 dated 10.03.2019 is not sufficient to contend that they are the members of service under the administrative control and management of Nellore Municipal Corporation and thereby, the petitioners are not entitled to claim any right in the writ petition and requested to dismiss the same. 12. Considering rival contentions, perusing the material available on record, the sole points that arise for consideration is as follows: “Whether the Government Model Schools are deemed to have been vested on the Municipal Corporation in terms of G.O.Ms.No.116 dated 10.03.2019 r/w Section 16(6) of Andhra Pradesh Municipal Corporations Act, 1994. If so, whether the petitioners are entitled to claim writ of mandamus to continue these petitioners in the same Government Model Schools and not to include these petitioners in the transfer counselling in terms of the guidelines annexed to G.O.Ms.No. 54 School Education Service-II Department dated 12.10.2020? POINT : 13. The main contention of the petitioners from the beginning is that, the petitioners are the employees in the Government Model School located in the erstwhile village panchayats merged with the Municipal Corporation, thereby, they are entitled to continue to work in the schools under the administrative control and management of Nellore Municipal Corporation, thereby, the vacancies in the schools cannot be notified in terms of G.O.Ms.No. 54 dated 12.10.2020. 14. There is no dispute regarding the petitioners working in the Government Model School and merger of those village panchayats with the Nellore Municipal Corporation in terms of G.O.Ms.No.113 dated 25.03.2013. As per the above government order, erstwhile 15 village panchayats are merged within the limits of Nellore Municipal Corporation, denotifying them as village panchayats and they are as follows: 1. Navalakulathota 2. Chinthareddypalem 3. Vavilatepadu 4. Gundlapalem 5. Kanuparthypadu 6. Kallurupalli 7. Bujubuju Nellore 8. Nellore Bit-1 (Kothur) 9. As per the above government order, erstwhile 15 village panchayats are merged within the limits of Nellore Municipal Corporation, denotifying them as village panchayats and they are as follows: 1. Navalakulathota 2. Chinthareddypalem 3. Vavilatepadu 4. Gundlapalem 5. Kanuparthypadu 6. Kallurupalli 7. Bujubuju Nellore 8. Nellore Bit-1 (Kothur) 9. Ambhapuram 10. Pottlapalem 11. Allipuram 12. Peddacherukuru 13. Gudipallipadu 14. Kodurupadu 15. Narayanareddypeta 15. But, G.O.Ms.No.113 dated 25.03.2013 is silent as to vesting of administrative control and management of schools within the village panchayats of Nellore Municipal Corporation. G.O.Ms.No.116 dated 10.03.2019 was issued by the Special Chief Secretary to the Government in view of the letter from the Director of Municipal Administration, A.P, Guntur vide Lr.Roc.No.11021/35/2019-J2 dated 12.02.2019, whereby, the Director of Municipal Administration, Guntur, requested to vest the management of all government and zilla parishad/mandal praja parishad schools which are located within the limits of Nellore Municipal Corporation are to be brought under the administrative control and management of Nellore Municipal Corporation. Accepting the request of the Director of Municipal Administration, all the schools including its buildings stands transferred to the Nellore Municipal Corporation and the teaching and non-teaching staff shall be given an opportunity to exercise their option as per Section 16(6) of the Andhra Pradesh Municipal Corporation Act. 16. As seen from this Government Order, the administrative control and management of the schools including Government Schools, Zilla Parishads, Mandal Praja Parishads, which are located within the erstwhile village panchayats merged with the Municipal Corporations, is handed over to the Municipal Corporation. Now the schools and school buildings are under the administrative control and management of Nellore Municipal Corporation, since the date of issue of G.O.Ms.No.116 dated 10.03.2019. But, for one reason or the other, the Director of Municipal Administration did not call for options in terms of Section 16(6) of Andhra Pradesh Municipal Corporations Act, 1994. Therefore, the vacancies in the Government Model Schools are also included in the transfers schedule in terms of G.O.Ms.No. 54 dated 12.10.2020. Even before issuing G.O.Ms. No. 54 dated 12.10.2020, for one reason or the other, the petitioners voluntarily exercised their options and submitted their option forms to continue in the Government Model School. Therefore, the vacancies in the Government Model Schools are also included in the transfers schedule in terms of G.O.Ms.No. 54 dated 12.10.2020. Even before issuing G.O.Ms. No. 54 dated 12.10.2020, for one reason or the other, the petitioners voluntarily exercised their options and submitted their option forms to continue in the Government Model School. As exercise of option is not in pursuance of the option given by the Director of Municipal Administration in terms of Section 16(6) of the Andhra Pradesh Municipal Corporation Act, therefore, the option exercised by the petitioners is not final and it was not accepted by the concerned authorities as on date. 17. When once the administrative control and management of schools are vested, the services of the staff, including teaching and non-teaching staff are deemed to be under their control, subject to exercising option. As on date, officially, no options were called for. It is on account of the latches on the part of Director of Municipal Administration and once the administrative control and management of the schools are vested with the Municipal Corporation, those posts cannot be notified though option was not given, as the schools are under the administrative control and management of the Nellore Municipal Corporation from the date of issue of G.O.Ms.No.116 dated 10.03.2019. 18. One of the major contention raised by Sri M. Srikanth, learned counsel for the implead petitioners/proposed Respondent Nos. 8 & 9 is that, administrative control and management of the Government Model Schools cannot be given to the Municipal Corporations, except by Presidential Order and placed reliance on the judgment of the Division Bench of High Court of Andhra Pradesh in Government of Andhra Pradesh v. P. Vema Reddy and others (referred supra). The dispute in the said judgment was with regard to vesting of management of central government schools on the Municipal Corporation. The dispute in the said judgment was with regard to vesting of management of central government schools on the Municipal Corporation. The Division Bench of the High Court considered the scope of Presidential Order, the extent of the power in the State Government thereunder and finally summed up the conclusion as follows: “We summarize our conclusions as under: (1) Since Clause (10) of Article 371-D of the Constitution gives over-riding effect to the provisions of Section 371-D, and the Presidential Order made thereunder, over any other provision of the Constitution or any other law for the time being in force, any action taken by the State, in exercise of the powers conferred under the Presidential Order, would be immune from attack for having violated any other provisions of the Constitution or any other law in force. (2) Since Article 371-D, and the Presidential Order made thereunder, mark a departure from the general scheme of the Constitution, it is only if the action of the State is traceable to any specific provision in the Presidential Order would it be entitled for the protection of Clause (10) of Article 371-D; (3) Power of the State Government to organize local cadres under Para 3(1) expired on the completion of the 27 month period from the date of commencement of the Presidential Order and, after 17.1.1978, the State Government no longer has the power to organize local cadres. (4) It is the President, under the proviso to Para 3(1), who alone can require the State Government to organize local cadres; (5) Unless the President requires the State Government to organize local cadres, any action by the State Government in organizing local cadres on its own, not having been specifically provided for in the Presidential Order, would be subject to Constitution limitations; (6) Since organizing a local cadre, in effect, amounts to prescribing ‘residence’ in a part of the State as a qualification for public employment, such action of the State would fall foul of Article 16(2) of the Constitution; (7) While the General Clauses Act applies to the provisions of the Presidential Order, Section 21 thereof, which provides that the power to make an order would include the power to rescind, is not available to the State Government, since it does not have the power to make an order, requiring local cadres to be organised, after 17.1.1978; (8) Since the power to make the order, requiring the State Government to organize local cadres, has been specifically conferred on the President under the proviso to Para 3(1) of the Presidential Order, Section 21 of the General Clauses Act would enable the President to make an order rescinding the order whereby local cadres were organised and, in effect, requiring the State Government to abolish local cadres; (9) It is only when the President requires it to do so is the State Government entitled, under the Presidential Order, to organize newly created cadres into local cadres and abolish cadres which hitherto had been organized into local cadres; (10) It is only after the President has required the State Government to organize, the newly created cadres, into local cadres would Para 13 of Presidential Order apply and in the interregnum, from the date on which the President, by order, has required the State Government to organize local cadres till the date on which local cadre are actually organized, appointments made and promotions effected would only be provisional; (11) Since the State Government does not have the power to organize local cadres on its own, in the absence of a specific provision in the Presidential Order enabling it to do so, any action in this regard would amount to prescription of “residence” in a part of the State as a qualification for employment and would be in violation of Article 16(2). Such State action is neither protected under the Presidential Order nor can any such appointment made, or promotions effected ultravires Article 16(2) be treated as provisional under Para 13 of the Presidential Order ; (12) Local cadres can only be organized in respect of departments of the State Government and not for cadres under any local authority. As such neither Para 3(1) nor its proviso would enable organization of cadres, under any local authority, into local cadres; (13) While the State has the inherent power to create and abolish cadres in civil services under the State, it does not have the power on its own, without being required by the President to do so, to either organize the newly created cadres into local cadres or to abolish cadres which hitherto were organized into local cadres; (14) What cannot be done directly cannot be done indirectly. A conjoint reading, of Sections 3, 4 and 5 of Act 27 of 2005 with its preamble, would establish that the very purpose and object of Act 27 of 2005 is to integrate cadres of teachers and other employees in government, mandal parishad and zilla parishad schools. Sections 3(1) and 4(1) of Act 27 of 2005, in effect, abolish local cadres. Through a circuitous process of abolishing cadres which were organized into local cadre and, in effect, abolishing the local cadres themselves, Act 27 of 2005 seeks to make a law which is beyond its legislative competence. Act 27 of 2005 is, thus, a piece of colourable legislation; (15) Since the State does not have power to abolish local cadres without the President requiring it to do so, and as the President has not so required till date, Section 3(1) and Section 4(1) of Act 27 of 2005 which abolishes cadres of teachers in government schools and other employees in the school education department of the government, which had been organized into local cadres in G.O.Ms.No.529 dated 14.5.1976, is ultravires the Presidential Order and is liable to be struck down. (16) Consequent upon Sections 3(1) and 4(1) of Act 27 of 2005 having been struck down the local cadres, organized under G.O.Ms.No.529 dated 14.5.1976, remain in force; (17) Section 5(1) of Act 27 of 2005 which integrates posts of teachers and other employees in a local cadre with those which do not belong to a local cadre, is also in violation of the Presidential Order and the law laid down by the Supreme Court in S. Prakasha Rao 13 and the Division Bench of this Court in M. Kesavulu. (18) The rules in G.O.Ms.Nos.95 and 96 dated 25.7.2005 to the extent teachers in government, mandal parishad and zilla parishad schools are treated as a unified cadre and a common unit is prescribed for appointment, seniority, promotion etc., to posts in this cadre, are ultravires the Presidential Order and are liable to be struck down since cadres under a local authority cannot form part of the local cadres of departments of the Government of A.P; (19) Since Sections 3, 4 and 5 of Act 27 of 2005 constitute the basis for Act 27 of 2005, and the other provisions of the Act are closely interwoven and not severable therefrom, Act 27 of 2005 is struck down in its entirety. The Rules in G.O.Ms. No. 95 & 96 dated 25.07.2005, do not survive after the parent Act 27 of 2005 has been struck down.” 19. The law declared by the Division Bench of the High Court is not in quarrel, but that is not applicable to the present facts of the case, as the schools are under the administrative control and management of Education Department of the State and it applies only to the central government schools. The dispute was unification of the services of staff working in Government Schools, Mandal Parishad and Zilla Parishad Schools. But, it is not clear whether the schools are established by Central Government or State Government. The dispute was unification of the services of staff working in Government Schools, Mandal Parishad and Zilla Parishad Schools. But, it is not clear whether the schools are established by Central Government or State Government. Even otherwise, if, this judgment is applicable to the Government Model Schools which are under the administrative control and management of the Municipal Corporation by virtue of G.O.Ms.No.116 dated 10.03.2019, unless, G.O.Ms.No.116 dated 10.03.2019 is questioned, the implead petitioners are not entitled to take advantage of the judgment of the Division Bench referred supra, as G.O.Ms.No.116 dated 10.03.2019 is not questioned as on date and therefore, this Court by applying the principle laid down in Government of Andhra Pradesh v. P. Vema Reddy and others (referred supra) cannot come to a conclusion that the very vesting of government model schools is illegal and it is outside the scope of adjudication. Hence, the judgment in Government of Andhra Pradesh v. P. Vema Reddy and others (referred supra) will not come in the way of the claim of the writ petitioners, since the administrative control and management of the schools was already given to the Municipal Corporation by G.O.Ms.No.116 dated 10.03.2019. Consequently, the contention of Sri M. Srikanth, learned counsel for the implead petitioners /proposed respondents is rejected, while upholding the petitioners’ contention. 20. The next contention of the writ petitioners before this Court is that, mere issue of notification is not sufficient and unless final options were given and accepted by the Director of Municipal Administration, the petitioners cannot be treated as members of service of Nellore Municipal Corporation and placed reliance on the judgment of the Division Bench in Smt. M. Vijaya Lakshmi v. Government of Andhra Pradesh (referred supra). In the facts of the above judgment, Kadapa Municipality was upgraded into Kadapa Municipal Corporation with the area under the limits of Kadapa Municipality, Kadapa Mandal and three other villages. Some of the teachers working in the said schools made a request for handing over administrative control of the schools situated in the erstwhile village panchayats to Kadapa Municipal Corporation. By virtue of the said request, the Commissioner and Director of Municipal Administration, Andhra Pradesh, Hyderabad vide proceedings dated 09.08.2006 requested the Commissioner, Municipal Corporation, Kadapa to offer his remarks. Some of the teachers working in the said schools made a request for handing over administrative control of the schools situated in the erstwhile village panchayats to Kadapa Municipal Corporation. By virtue of the said request, the Commissioner and Director of Municipal Administration, Andhra Pradesh, Hyderabad vide proceedings dated 09.08.2006 requested the Commissioner, Municipal Corporation, Kadapa to offer his remarks. The Government of A.P. permitted the Commissioner, Kadapa Municipal Corporation to take action on the representation of the teachers as per rules, by memo No.13826/Coordn/2006, dated 27-07-2006. Thereupon, the issue has been placed before the General Body of the Corporation. The General Body of the Corporation resolved to absorb the services of the teachers working in M.P.P. and Z.P. schools, to the management of Kadapa Municipal Corporation by virtue of resolution No.62, dated 28-12-2006. Thereupon options were called for and 197 teachers have opted to continue to work in the schools under the administrative control and management of Kadapa Municipal Corporation. The same was accepted by the General Body of the Corporation. Similarly, the matter was also placed before the Chief Executive Officer of Kadapa. The General Body also accepted the absorption of some of the teachers working in Z.P. schools to the management of Corporation. Thereupon, the District Educational Officer, Kadapa by its letter, dated 07-03-2007 addressed to the Director of School Education, A.P. Hyderabad referring to the resolution of the Kadapa Municipal Corporation and Kadapa Zilla Parishad stated that 68 schools are likely to be taken over by Kadapa Municipal Corporation and a total of 262 teachers are likely to be absorbed in the schools under the administrative control and management of Kadapa Municipal Corporation. Thereupon the Kadapa Municipal Corporation by its letter, dated 22-03-2007 addressed to the Government and Commissioner and Director of Municipal Administration, intimated about the resolution passed by the Corporation and the Zilla Parishad. The Government by its proceedings, dated 17-02-2009 directed the concerned to take option of the employees. Accordingly some of the employees gave option. The Director of School Education requested the District Educational Officer, Kadapa to submit the information/particulars of the teachers consequent to the merger of certain schools in the Gram Panchayat into Municipal Corporation. On 26-01-2009, the Government issued G.O.Ms.No.15, framing the rules called as Andhra Pradesh Teachers (General Promotion and regulation of Transfers) Rules. Accordingly some of the employees gave option. The Director of School Education requested the District Educational Officer, Kadapa to submit the information/particulars of the teachers consequent to the merger of certain schools in the Gram Panchayat into Municipal Corporation. On 26-01-2009, the Government issued G.O.Ms.No.15, framing the rules called as Andhra Pradesh Teachers (General Promotion and regulation of Transfers) Rules. In terms of the said G.O., the Government issued G.O.Ms.No.65, dated 19-05-2011 informing about taking place of transfer counseling. G.O.Ms.No.15, dated 26-01-2009 and G.O.Ms.No.65, dated 19-05-2011 were challenged before the Tribunal on the ground that the guidelines thereunder cannot be made applicable to the petitioners, the administrative control and management of the schools is given to Kadapa Municipal Corporation. The Tribunal basing on the material available on record, dismissed the Original Applications. Aggrieved by the order of the Tribunal, the writ petitions were filed. However, at the end, after considering the entire material on record, the Division Bench concluded that the petitioners’ contention is premature, since the Government has not taken any decision on the resolution passed by the Municipal Corporation and mere issue of directions without vesting the administrative control and management of schools on the Municipal Corporation is not sufficient to claim the relief. 21. The law declared by the Division Bench is not in quarrel. However, the facts of the above judgment are distinguishable with the facts of the present case. G.O.Ms.No.116 dated 10.03.2019 was issued vesting the administrative control and management of the schools situated within the erstwhile village parishads merged with the municipal corporations, while directing the Director of Municipal Administration to obtain options from the teachers working in those schools either to continue to work in the schools under the control and management of Municipal Corporation or otherwise. But, no options were called as on date and no final decision was taken, though the petitioners allegedly exercised their taken to continue to work in the schools under the administrative control and management of the Municipal Corporation, the final process is not completed. But in the facts of the judgment of the Division Bench referred supra, no such Government Order vesting the administrative control and management of the schools situated within the erstwhile village panchayat merged with the municipal corporation was issued. Before issuing government order, the options were called for by issuing memo. But in the facts of the judgment of the Division Bench referred supra, no such Government Order vesting the administrative control and management of the schools situated within the erstwhile village panchayat merged with the municipal corporation was issued. Before issuing government order, the options were called for by issuing memo. Hence, in the absence of any government order, vesting of the administrative control and management of the schools situated within the erstwhile village panchayats merged with municipal corporations does not arise and they are not entitled to claim any relief. But, in the present facts of the case, everything is over, except calling for and acceptance of the options. But, still, the petitioners are working in the schools under the administrative control and management of the Municipal Corporation from the date of G.O.Ms.No.116 dated 10.03.2019. Therefore, the principle laid down in the above judgment cannot be applied to the present facts of the case. 22. In view of my discussion, the petitioners are deemed to be working in the schools under the administrative control and management of Nellore Municipal Corporation as on date and the administrative control and management is already vested with the Municipal Corporation in terms of G.O.Ms.No.116 dated 10.03.2019. At best, the Nellore Municipal Corporation is entitled to fill those vacancies, if any, arises in those schools, and the Panchayat Raj Department and Education Department have nothing to do with those vacancies. Hence, inclusion of the vacancies in the proposed transfer counselling in terms of G.O.Ms.No.54 dated 12.10.2020 will certainly deprive these petitioners to work in the schools under the administrative control and management of Nellore Municipal Corporation, if those vacancies are included in the present counselling in pursuance of G.O.Ms.No.54 dated 12.10.2020, it is violative of Section 16 of the Andhra Pradesh Municipal Corporation Act, 1994. On this ground alone, the respondents shall be directed not to include the vacancies in the government model schools, administrative control and management which is vested with the Nellore Municipal Corporation by virtue of G.O.Ms.No.116 dated 10.03.2019. If, those schools are included in the counselling, the right of these petitioners to exercise legitimate option gets defeated and it is nothing but an arbitrary exercise of power by the State. If, those schools are included in the counselling, the right of these petitioners to exercise legitimate option gets defeated and it is nothing but an arbitrary exercise of power by the State. Hence, I find that it is a fit case to direct the respondents not to include the vacancies in the Government Model Schools, administrative control and management of which is vested on the Nellore Municipal Corporation in terms of G.O.Ms.No.116 dated 10.03.2019, while rejecting the contention of the implead petitioners. 23. In the result, writ petition is allowed, directing the respondents not to include the vacancies in the Government Model Schools, administrative control and management of which is vested on the Nellore Municipal Corporation situated within the erstwhile village parishads merged with the Municipal Corporation in terms of G.O.Ms.No.113 dated 25.03.2013 and G.O.Ms.No.116 dated 10.03.2019. No costs. 24. Consequently, miscellaneous petitions pending if any, shall also stand closed.