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2. In W.P.Nos.3622, 3912 and 3934 of 2019, the petitioners are seeking a Writ of Mandamus declaring the action of the respondents in taking steps to fill up the upgraded posts of School Assistants (Languages) and (Physical Education) with the existing Language Pandits and Physical Education Teachers alone pursuant to the orders issued in G.O.Ms.No.15, Finance (HRM.II) Department, dt.16.02.2019 W.P.No.10061/2017 & batch (Total 14 Cases) and the consequential Government Memos dt.16.02.2019, 17.02.2019, 18.02.2019 and 20.02.2019 issued directing the DEOs to fill the upgraded posts of School Assistants (Languages) and School Assistants (Physical Education) by absorption of Language Pandits and Physical Education Teachers by ignoring the statutory rules issued in G.O.Ms.No.12 dt.23.01.2009, as illegal and arbitrary and consequently to direct the respondents not to fill up the said upgraded posts.

9. Further amendment in G.O.Ms.No.18, Finance (HRM-II) Department, dt.03.02.2017 was issued upgrading 2,487 posts of Language Pandits as School Assistant (Languages) and 1,047 Physical Education Teacher (PET) posts as School Assistants (Physical W.P.No.10061/2017 & batch (Total 14 Cases) Education) in the State for absorption of the existing Language Pandits as per their seniority and eligibility as School Assistants (Languages) and existing Physical Education Teachers as School Assistants (Physical Education) in the upgraded posts of School Assistants. The consequence was that the posts of existing Language Pandits, which are Categories 3 to 13 of Class-II only, were made eligible for absorption against the said upgraded 2,487 posts of School Assistant (Languages) depriving the other categories of Secondary Grade Teachers (SGTs), i.e., Category 1 and Categories 14 to 25 of Class-II, who possessed the necessary qualification and were eligible to be promoted to the post of School Assistant (Languages) through the channel of promotion and were prevented from and deprived of getting promotion to the said post. According to the petitioners, this is nothing but taking away their accrued right of being considered for promotion to the post of School Assistants (Languages) and School Assistants (Physical Education), which was available to them under G.O.Ms.No.12 dt.23.01.2009. Hence, the executive orders issued in G.O.Ms.No.17 and G.O.Ms.No.18 both dt.03.02.2017 were challenged before this Court.

W.P.No.10061/2017 & batch (Total 14 Cases)

10. Since common issues are involved, all the cases have been clubbed and were heard together and are being disposed of by this common and consolidated order.

11. Sri T.Suryakaran Reddy, learned Senior Counsel appearing for Sri C.Sai Reddy, learned counsel for the petitioners in W.P.No.10200 of 2017, W.P.Nos.3467, 8004, 8294 of 2021 and W.P.Nos.20307, 21552 and 22326 of 2022 submitted that the executive orders in G.O.Ms.No.17 and G.O.Ms.No.18 both dt.03.02.2017 cannot override or prevail over the statutory rules in G.O.Ms.No.12, dt.23.01.2009 and therefore, the executive orders are non est in the eye of law. It is submitted that if the posts of School Assistants (Telugu)/(Hindi) are filled by promotion or by absorption of the existing Language Pandits only as provided in G.O.Ms.No.17 and G.O.Ms.No.18 dt.03.02.2017 with the Categories of 3 to 13 of Class-II of A.P. School Educational Subordinate Service Rules, the petitioners who belong to Category 1 and Categories 14 to 25 of Class-II will be deprived of their promotional rights as they lose their promotional channel to the post of School Assistant (Languages) and School Assistant (Physical Education) and thereby, they would be put to W.P.No.10061/2017 & batch (Total 14 Cases) great hardship and irreparable loss. The learned Senior Counsel further submitted that when W.P.No.10200 of 2017 came up for admission, vide orders dt.24.03.2017, this Court in W.P.M.P.No.12640 of 2017 was pleased to grant interim direction not to fill up the posts of School Assistants (Languages) till recruitment rules are amended. W.P.No.10061 of 2017 and W.P.No.10248 of 2017 were also filed with similar prayer to declare Para 4 of G.O.Ms.No.17 dt.03.02.2017 as amended in G.O.Ms.No.18 dt.03.02.2017 to the extent of filling up of the upgraded posts only with the existing Language Pandits and Physical Education Teachers (PETs) by way of absorption to be in violation of Rule 2 of the Rules issued in G.O.Ms.No.12 dt.23.01.2009 and sought for a consequential direction to fill up the said upgraded posts as per pre-amended Rule 2 of the said Rules as the vacancies had arisen before the amendment of the Rules and efforts were made by the respondents to fill up the said vacancies. He referred to G.O.Ms.No.15, dt.26.01.2009 which provided for preparation of panels for promotions to the posts of School Assistants from the eligible feeder categories every year duly assessing the vacancies of the respective categories from 1st September to 31st August of succeeding year and that vide W.P.No.10061/2017 & batch (Total 14 Cases) G.O.Ms.No.31 dt.23.06.2010, Rule 2 above was amended for issuance of schedule for promotions to the posts of School Assistants and Head Masters Grade-II from time to time and that the date to be reckoned for arrival of number of vacancies will also be issued by the Government as per schedule. Thus, according to the learned Senior counsel, the Government was required to prepare the panel for promotions from year to year and determine the vacancies for promotions and hence such vacancies were to be filled up as per the rules in force at the relevant point of time.

24. In the cases before this Court, the posts of School Assistants upgraded under G.O.Ms.No.17 and G.O.Ms.No.18, Finance (HRM-II) Department, both dt.03.02.2017 were intended to be filled up by promotion, but could not be filled up due to interim orders of this Court. The said G.Os., were withdrawn only vide G.O.Ms.No.110, Finance (HRM-II) Department, dt.05.10.2021 and restructured to be filled up as per the amended Rules vide G.O.Rt.No.03 dt.05.02.2021. Therefore, it is clear that the Government intended to fill up the vacancies of School Assistants including the upgraded posts of School Assistants (Languages) and School Assistants (Physical Education) and has arrived at the total number of vacancies in accordance with the Rules as provided in G.O.Ms.No.15, dt.26.01.2009 and has accordingly issued W.P.No.10061/2017 & batch (Total 14 Cases) instructions to the respective DEOs for necessary action at their end. Therefore, it is clear that these vacancies were being considered for filling up and thus, the rules in force as on the date of issuance of the said G.Os. have to be considered as held by the Hon'ble Apex Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others (2 supra). If the Government did not intend to fill up the vacancies, but the petitioners were seeking consideration of their cases for promotion to the vacancies in accordance with old Rules, the reliance of the learned Government Pleader on the above judgment would be relevant. But, since the vacancies were not filled up due to Court orders and not because the Government did not want to fill up the vacancies till the rules were amended, the contention of the learned Government Pleader that the vacancies have to be filled up as per amended Rules cannot be accepted. In the cases before this Court, the Government initiated steps to fill up the vacancies and only after this Court pointed out that they would have to be filled up as per Rules in force and not without amending the Rules, they have resorted to amendment of Rules and withdrawal of the vacancies and rescheduling the panel and vacancies. This Court is of the opinion that by issuance of W.P.No.10061/2017 & batch (Total 14 Cases) G.O.Ms.Nos.17 and 18 both dt.03.02.2017 by upgrading the posts of Language Pandits and Physical Education Teachers to the posts of School Assistants (Languages) and School Assistants (Physical Education), the vacancies so arising have to be filled up as per the unamended Rule 2 of the A.P. (Telangana) School Educational Subordinate Service Rules at the relevant point of time and thus, all the eligible candidates including the SGTs acquired a vested right which could not be altered or modified to the detriment of their rights by subsequent amendments.