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2018 Supreme(AP) 390
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Thottathil B. Radhakrishnan, V. Ramasubramanian, JJ.
Government Teachers Association, Telangana State Represented by its General Secretary and Ors. – Petitioners
Versus
Union of India, represented by its Secretary, Ministry of Home Affairs, New Delhi and others – Respondents
Writ Petition Nos.23267, 23274 and 27404 of 2017
Decided On : 28-08-2018
For the Petitioner: Mr. S. Ramachandra Rao, SC
For the Respondent: Mr. V. Giri, SC, Mr. Ramachandra Rao, AAG, Mr. K. Lakshman, A.S.G., Mr. Vedula Venkata Ramana, SC, Mr. G. Vidyasagar, SC, Mr. K. Narayana, Mr. Ramgopal Rao, Mr. P. Veerabhadra Reddy
Headnote:
Education Law – Employment and Service matter – Constitution of India, 1950 – Article 16(2) – Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 – Presidential Order – Conditions of services of teachers working in Government Schools – Government Teachers Association along with a few Teachers working as School Assistants in various Government Schools have come up with these writ petitions, challenging – We have heard Mr. S. Ramachandra Rao, learned senior counsel appearing for the writ petitioners, Mr.V. Giri, learned senior counsel appearing for the State of Telangana along with the learned Additional Advocate General for the State of Telangana, Mr. K. Lakshman, learned Assistant Solicitor General, Mr. Vedula Venkataramana, learned senior counsel and Mr. G. Vidyasagar, learned senior counsel appearing for some of the contesting respondents and Mr. K. Narayana, Mr. Ramgopal Rao and Mr. P. Veerabhadra Reddy, learned counsel appearing for the remaining contesting respondents – Held, government appears to have taken a shortcut and have the retrospective effect sanctioned by Presidential Order itself. If the impugned Presidential Order had merely stopped with the organisation of the posts of teachers in Panchayat Samithi institutions into local cadre, it could have fallen into the domain of Government to amend the Service Rules to integrate both the cadres – If State Government had done this in exercise of powers conferred by the proviso to Article 309, same would have become vulnerable to challenge on the ground that retrospective effect given to rule, sought to take away the vested rights – In order to insulate retrospective effect from any attack on the ground of Article 14, State Governments appear to have adopted the devious method of seeking a Presidential Order to integrate 2 different cadres with retrospective effect. No court can approve of such a game plan – Therefore, the fifth ground of attack is also liable to be upheld – In view of what is stated above, we are of considered view that sub-paragraph (2A) inserted in paragraph-3 of Presidential Order 1975 by GSR 639 (E) dated 23.06.2017 is ultra vires the power conferred by Clause (1) of Article 371D and beyond the purview of different aspects indicated in sub-clauses (a) (b) and (c) of clause (2) of Article 371D of the constitution. Similarly, Entry 23A inserted in Third Schedule to the Presidential Order, 1975 by GSR 637 (E) in as much as the same places Mandal Educational Officer, Headmaster and Headmistresses in Government and Zilla Parishad High Schools in the same class, is ultra vires Article 371D. While there is power conferred by Article 371D to organise any class or classes of posts, no power of integration or merger of cadres is expressly or impliedly conferred by Article 371D(1) of Constitution – Petition allowed. (Paras 98 and 99)
V. Ramasubramanaian, J.
The Government Teachers Association along with a few Teachers working as School Assistants in various Government Schools have come up with these writ petitions, challenging--(1) sub-para-(2A) of Para 3 of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 and (2) Entries 23A, 26A and 26B of the Third Schedule to the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975.
2. We have heard Mr. S. Ramachandra Rao, learned senior counsel appearing for the writ petitioners, Mr.V. Giri, learned senior counsel appearing for the State of Telangana along with the learned Additional Advocate General for the State of Telangana, Mr. K. Lakshman, learned Assistant Solicitor General, Mr. Vedula Venkataramana, learned senior counsel and Mr. G. Vidyasagar, learned senior counsel appearing for some of the contesting respondents and Mr. K. Narayana, Mr. Ramgopal Rao and Mr. P. Veerabhadra Reddy, learned counsel appearing for the remaining contesting respondents.
Genesis of the litigation
3. In exercise of the powers conferred by Article 371D of the Constitution, the President issued the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975, hereinafter called “the Presidential Order”, directing the State Government to organise classes of posts in the civil services of the State and classes of civil posts under the State, into different local cadres for different parts of the State. The Presidential Order contained three Schedules, with the First Schedule enlisting the territories that form part of the city of Hyderabad, the Second Schedule indicating the Districts that will form part of every one of the six zones into which the State was divided namely, Zone-I, Zone-II, Zone-III, Zone-IV, Zone-V and Zone-VI and the Third Schedule enlisting the categories of posts in different departments, which were to be identified as specified Gazetted Categories.
4. It appears that in the composite State of Andhra Pradesh, all schools were historically under the control of the Education Department. But after the formation of Zilla Parishads and Panchayat Samithis, the schools run by the District Boards or the Government, were taken over by the Zilla Parishads, along with the staff in the year 1959. In the year 1962, two different sets of Service Rules were issued, one under G.O.Ms.No.728, dated 10-01-1962 dealing with the categories of posts, method of recruitment, Educational Qualifications, promotional avenues etc., of teachers working in Government Schools and another under G.O.Ms.No.936, dated 17-07-1962 and G.O.Ms.No.33, dated 25-01-1966, relating to the recruitment, conditions of service etc., of teachers working in Zilla Parishads and Panchayat Samithis Schools.
5. After the advent of the Presidential Order, 1975, the teaching and non-teaching staff working in the Education Department were organised into local cadre under G.O.Ms.No.529, dated 14-04-1976. But the teachers working in Zilla Parishads and Panchayat Samithis Schools were not organised into local cadre.
6. When representations were made, the Government issued G.O.Ms.No.168, dated 20-03-1981 provincialising the services of the teachers working in Zilla Parishads and Panchayat Samithis Schools. It was followed by Ordinance No.20 of 1981, which later became Andhra Pradesh Act 34 of 1981, treating persons working in Panchayat Samithis and Zilla Parishads as those in the civil services of and holding civil posts, under the State. As a consequence, a Government Order in G.O.Ms.No.155, dated 01-03-1983 was issued making the General Rules for Andhra Pradesh State and Subordinate Services applicable to the employees specified in Sections 26 and 51 of the Andhra Pradesh Panchayat Samithis and
