@JUDGMENTTAG-ORDER
G.Krishna Mohan Reddy
1. In all these writ petitions, common questions of law and facts arise for consideration, therefore they are being disposed of by this common order. In these writ petitions, assailed common order dated 21.9.2011 passed in O.A.Nos.6565 and 3492 of 2011 and batch, common order passed in O.A. No. 4356 of 2011 and batch dated 28.9.2011 and order passed in O.A. No. 4591 of 2011 dated 12.10.2011 on the file of A.P. Administrative Tribunal, Hyderabad so far as related to those specified applications respectively.
2. The petitioners in all these petitions are the respondents and the respondents in these petitions are the applicants in the corresponding Original Applications before the A.P. Administrative Tribunal (for brevity ''the Tribunal''). For the sake of convenience, the parties hereinafter be referred to as they are arrayed in the Original Applications.
3. The common order dated 21.9.2011 covers two sets of applications. Here the concern is limited to the common order to the extent of first set of applications therein only. All the said Original Applications which are relevant here were filed seeking direction to the respondents to notify all the vacancies of Panel Grade Headmasters/Gazetted Headmasters Grade-II which were filled up by juniors to the applicants from September 2009 to April 2011, if necessary by amending clause (6) of transfer guidelines issued on 19.5.2011 said to be done earlier in the general transfer counseling held during July 2009 holding that the action of the respondents in not notifying the vacancies held by the juniors to the applicants in the ensuing transfer counseling as illegal, arbitrary and discriminatory. By the impugned order, the Tribunal upheld the claim of the applicants, aggrieved by which these writ petitions have been filed.
4. The circumstances under which the said common order came to be passed before the Tribunal is as follows:
The applicants were promoted as Panel Grade Headmasters/Gazetted Headmasters Grade-II and majority of them were posted to various places during January and February 2009 etc. By virtue of the guidelines issued vide proceedings Rc. No. 1671/D1-3/2009 dated 24.6.2009, they participated in the general transfer counseling held on 16.7.2009 and they were posted to places where they are presently working by treating that their appointments were made on ad hoc basis. The Government issued general rules relating to Regulation of the Transfers of Teachers vide G.O.Ms. No. 65 dated 19.5.2011, Rule 12 of which provides that the Headmasters who have completed two years of service as on 1.6.2011 at the places of their work are entitled to apply for transfer. The applicants were deprived of applying for the transfers as they did not complete two years of service by them at their present places of work. However, on necessary representation, the Government issued G.O.Ms. No. 66 Education Department dated 25.5.2011 relaxing the two years of minimum service noting that the Teachers who were promoted during January 2009 and re-allotted places in July 2009 through counseling should be considered to participate in the forthcoming transfer counseling without completing two years of their tenure at their places of work. Accordingly all of them submitted their respective applications for transfer through online. But prior to that, the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad issued Transfer Guidelines vide proceedings Rc. No. 1570/C3-2/2011 dated 19.5.2011, whereas clause (6) thereunder contemplates that the places which were filled up by those who were juniors to the applicants, following their promotions during September 2009 and April 2011 were not notified, by virtue of which, the applicants were denied to opt for the places filled up by juniors.
5. The main grievance of the applicants is that after their promotion, number of juniors were promoted as Panel Grade Headmasters through proceedings dated 9.10.2009 and similarly some other juniors were also promoted through proceedings dated 14.9.2010. All the juniors to the applicants had opted places in the existing vacancies in the city as well as surrounding places of the city which carry 30%, 20% and 14% House Rent Allowance (HRA). Subsequently, the Government issued G.O.Ms. No. 31 dated 23.6.2010 amending Rule 3 of G.O.Ms. No. 15 dated 26.1.2009 to effect promotions as and when the Government fixes time. Thereafter the Government issued G.O.Ms. No. 67 dated 20.11.2010 to effect promotions on the first working day of every month by reckoning the number of vacancies available on that date. In pursuance of that some other juniors to the applicants were also promoted to the post of Panel Grade Headmasters/Grade-II Headmasters on 30.10.2010 and they were also posted in better places. Subsequently from November 2010 till April 2010 also number of juniors to the applicants were promoted as the Panel Grade Headmasters and posted to better places. Thus, number of juniors to the applicants are enjoying better places, whereas the applicants being seniors are working at remote places which carry 12% HRA only. Further their grievance which in fact is paramount here is that clause (6) of the transfer guidelines dated 19.5.2011 is illegal and arbitrary, because the vacancies which were filled up by those who are juniors to them were not notified to them even though the respondents were bound to do so for ensuing transfer counseling, so that they could opt better places of transfer respectively. There is no dispute about the factual aspects enumerated.
6. The Tribunal after examining this aspect has observed that the applicants could not get sufficient number of places for giving option due to non-inclusion of the posts held by the candidates promoted from September 2009 to April 2011 as vacancies in the transfer counseling. In order to accommodate the seniors, the applicants were disturbed though they had not completed two years of service. But when it comes to the juniors, the respondents did not take any steps to notify those vacancies to accommodate the applicants in the places according to their entitlement which amounts to discrimination and extending undue advantage to the juniors by providing the benefit of opting better places and also extending the benefit of better percentage of HRA. The Tribunal held ultimately that in order to give a fair deal to the applicants in both the sets of applications, all the vacancies filled up from September 2009 to April 2011 should be notified and opportunity be given to all the candidates to opt the places of their choice to accommodate them according to their eligibility and entitlement points which would give satisfaction to them of a fair deal to all of them, by reason of mentioning in the promotion orders the promotions as well as postings as ad hoc and subject to review at any time.
7. Learned Government Pleader appearing for the petitioners would contend that the transfer counseling was conducted in a transparent manner and all the concerned Headmasters joined in their respective posts as opted by them without any complaints. He has asserted that the Government had taken a decision to fill up the vacancies month wise consequent upon the retirements of Teachers from the feeder categories by promotion through their respective District Promotion Committees which is a general procedure being followed in every department and accordingly promotions and placements are being made subject to imposition of ban, if any, which is quite legal. He has claimed that when once the Headmasters concerned were promoted and posted to respective places during September 2009 and April 2011, the question of considering their places of work for counseling to be attended by the applicants will not arise by virtue of the provisions incorporated in the corresponding rules of G.O.Ms. No. 65 dated 19.5.2011. He emphasizes that the rules notified in that G.O. do not provide for any stipulation for the submission of application by the Teachers who were promoted from September 2010 onwards to participate in the transfer counseling, because they have not completed two years of stay at their present places of work, whereas they cannot be subjected to compulsory transfer when they did not complete (8) years of service. He also contends that the transfer of an employee is an incident of service and the Courts or the Tribunals should not interfere with the transfer orders unless such orders are issued malafidely or in contravention of the statutory rules, which is not the case here. In addition to that, the transfer should not be made during the middle of academic year as it would disturb the teaching programme and make the students suffer and also in the public interest. He claims that in fact, HRA entitlement cannot be a ground to seek for transfer. Apart from that, he pleads that there has been a general ban in respect of transfers which will continue till June/July, 2012 to consider the claim of the applicants. Ultimately he contends that the Tribunal failed to properly appreciate the intendment of the relevant provisions and also conducting of transfers without any flaw and passed erroneous order. In support of his contention, he has relied upon the decisions in
8. Learned counsel for the respondents/applicants would contend that the order passed by the Tribunal is a well considered one and there are no grounds to interfere with the order.
9. It has to be seen as to whether the order of the Tribunal in allowing their applications on the ground that the applicants were disturbed earlier from respective places even though they did not complete two years of service and the applicants were denied to opt the places where the juniors are working and as such the benefit given to the juniors to seek for their transfer to those places was not extended to the applicants which would amount to treating the cases of the applicants with discrimination.
10. G.O.Ms. No. 15, Education (SE. Ser.II) Department dated 26.1.2009 and G.O.Ms. No. 65 Education (SE Ser.III) Department dated 19.5.2011 were issued relating to Regulation of Transfers which are called "Andhra Pradesh Teachers (General Promotions and Regulation of Transfers) Rules
11. Rules are provided in the G.Os. for Transfer counseling. Rule 9 reads as under:
(a) All Transfers shall be made by way of counseling through Transfer Committees constituted from time to time by the competent authority.
(b) The Headmasters Gr.II Gazetted/Teachers facing disciplinary cases shall be transferred to the schools located in Category IV.
(c) The Headmasters Gr.II Gazetted/Teachers who worked in the category IV and proceeded on long leave shall be posted to the same place or other places in category IV.
Rule 10 provides for Schedule of Transfers, which reads as under:
The Director of School Education shall draw schedule and communicate the same to the competent authorities for effecting transfers from time to time.
Rule 11 authorises competent authority to issue posting orders, which reads as under:
The appointing authorities concerned shall issue transfer orders based on the recommendation of the committees constituted for the purpose.
Rule 12 provides for issue of transfer orders, which reads as under:
Based on the recommendations of the respective committees, the appointing authorities concerned shall issue posting orders to all the HMs/Teachers of one category in one proceedings only, duly enclosing the names of the teachers transferred and places of postings on transfer in one annexure. No individual transfer orders shall be issued
Rule 13 provides criteria for transfers, which reads as under:
The following categories of HMs Gr.II Gazetted/Teachers in the Government/ZPP/MPP posts shall be transferred:
a) Those who have completed 8 years service in a particular school/Panchayat/Municipality or Municipal Corporation in all schools as on 1st July of every year shall be compulsorily transferred. The completion of 8 years service shall be counted for the service rendered in a school prior and after upgradation in respect of upgraded and bifurcated schools.
b) Those who are going to retire within two years as on the date of transfer counseling shall not be shifted until and unless the incumbent requests for such transfer.
c) If no women HMs/Teachers are available to work in Girls Schools including High Schools, then male HMs/Teachers who are over and above 50 years age will be considered for posting to such schools.
d) If any Headmasters/Teachers fail to apply and attend counseling, such persons will be allocated to the left over vacancies in the counseling and no further correspondence will be entertained.
e) Once transfer orders are issued by the competent authority, review of orders shall not be considered. The person should join in the place of posting. Avoiding of posting orders and applying for treatment of waiting period as compulsory wait will not be entertained.
Rule 14 of the said Rules provides for eligibility to apply for transfers, which reads as under:
Headmasters Gr.II Gazetted/Teachers who have put in more than two years of service in a place/School and above as on 1st July are only eligible to apply for transfer
Rule 15 is with regards to place of postings, it contemplates;
Headmasters Gr.II Gazetted/Teachers shall not be posted in the Schools located in the same Gram Panchayat/Municipality/Municipal Corporation. In respect of Hyderabad district, this condition is not applicable
Rule 16 deals with posting orders, it contemplates;
The postings of HM Gr.II Gazetted Teachers/will be made based on their original appointment in the institutions, subject to such conditions as may be prescribed by the Government.
Rule 17 deals with entitlement of points, it contemplates;
The points as follows shall be awarded to the Headmasters Gr.II Gazetted/Teachers who apply for transfers:
(1) Service in the Present School or Office or Institution located in the following areas as on 1st July of the year:
(i) For service in Category IV areas: Five (5) points per every year of service.
(ii) For service in Category III areas: Three (3) points per every year of service.
(iii) For service in the Category II areas: Two (2) points per every year of service.
(iv) For service in the Category I areas: One (1) point per every year of service.
(2) For entire service:
One point for every Five (5) years of service in the total service in all categories as on 1st July of the year.
(3) The President and General Secretary of the recognized Teachers'' Union at the State and District Levels are eligible for 10 points.
The same rules are incorporated in G.O.Ms. No. 65 dated 19.5.2011.
12. Rule 13 is very categorical that those who have completed 8 years of service in a particular School in a Panchayat/Municipality or Municipal Corporation as on 1st July of every year shall be compulsorily transferred, whereas the completion of 8 years service shall be counted for the service rendered in a school prior to and after upgradation in respect of upgraded and bifurcated schools. Apart from that, it also makes it categorical that once transfer orders are issued by competent authority, review of the orders shall not be considered. Apart from that, by virtue of Rule 14, the Headmasters Gr.II Gazetted/Teachers who have put in more than two years of service in a place/School and above as on 1st July are only eligible to apply for transfer. The rules contemplated under the G.O. do not specify that those Headmasters Gr.II Gazetted/Teachers who have put in less than two years of service in a place/School as on 1st July are eligible to apply for transfer. In fact, rule 14 implies that unless two years of service in a Place/School is completed, no candidate is eligible to apply for transfer. Rule 15 puts a restriction to post a candidate within the same Gram Panchayat or Municipality or Municipal Corporation as the case may be. Under Rule 17 entitlement points to be awarded to various categories in the service are narrated. In consequence of G.O.Ms. No. 65, guidelines were issued vide proceedings in Rc. No. 1570/C3-2/2011 dated 19.5.2011. Clause 6 thereunder contemplates:
The following vacancies shall be notified and displayed before counseling;
a) All the existing clear vacancies.
b) All the vacancies due to shifting of surplus posts on rationalization.
c) All the vacancies due to transfer of male teachers working in Girls Schools.
d) All the vacancies due to transfer of teachers who have completed 8 years.
e) Resultant vacancies arose during counseling.
Note: The leave vacancies shall not be notified.
13. This clearly excludes the places of juniors who were promoted and posted during the relevant period from consideration for the benefit of the applicants.
14. Significantly, G.O.Ms. No. 66, Education (SE Ser.III) Department dated 25.5.2011 was issued relaxing the two years of minimum service noting that the Teachers who were promoted during January 2009 and re-allotted places in July 2009 through counseling should be considered to participate in the forthcoming transfer counseling without completing two years of their tenure at the places of work which is an exception to the corresponding rules provided under G.O.Ms. No. 15 dated 26.1.2009/G.O.Ms. No. 65 dated 19.5.2011 respectively that applications are to be made for transfer only after two years of tenure at a particular place.
15. In addition to that, G.O.Ms. No. 16 Education (SE Ser.III) Department dated 26.1.2009 was issued by the Government according permission for promotions and consequential transfers to the category of Headmasters Gr.II in the Government High Schools for 2009. That G.O. envisages that (a) the promotions just before the public examinations would not be allowed to cause any disruption in the category and completion of the syllabus/revision as all the teachers concerned would receive the promotion orders, join the new posts and immediately thereafter report back at the old posts to complete syllabus/revision; (b) the teachers would not claim any allowances; (c) the teachers would claim the HRA and other allowances as admissible at the promotion posts; and (d) all such promotion posts shall be available for general transfers. Relevantly, in para 3 of the said G.O. provided.
Date of relief, joining and other conditions:
a) The Headmaster Gr.II Gazetted who are not transferred on promotion from School Assistants should be relieved from the present place of working. On receipt of the orders he/she shall get relieved immediately i.e. within one day and join at the new school where now transferred. He/she shall within one day again come back to the original station (from where transferred) in order to ensure continuity of instruction, till he/she are relieved by the subject teacher School Assistant. If the relieving School Assistant is similarly given a direction to go back to his/her original post, the promoted Headmaster shall continue till the end of academic year or till further orders are issued by the Director of School Education whichever is earlier.
b) He/she shall not claim continuation in the promoted post as all such posts shall be made available for the general transfers counseling to be taken up in April/May or as per schedule to be communicated by Director of School Education, Hyderabad.
c) If during general transfer counseling, he/she fails to exercise his/her option he/she is liable to be transferred anywhere by the competent authority.
[(d), (e) and (f) omitted as not relevant]
Rule 6 thereunder provides;
All the promotions and consequent transfers are ad hoc under Rule 10(a) of Andhra Pradesh State and Subordinate Service Rules and shall be subject to review depending on the final outcome of SLPs pending in the Hon''ble Supreme Court of India and any case pending in Hon''ble High Court of Andhra Pradesh/Andhra Pradesh Administrative Tribunal, Hyderabad.
16. These provisions comprehend that the transfers to be effected thereunder are purely ad hoc in nature to see that the academic period of the students would not be disturbed.
17. Guideline No. 11(a) in Rc. No. 1671/D1-3/2009 dated 24.6.2009 issued by the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad for the conducting of transfer counseling provides for regular transfers of such candidates and the applicants significantly got promotions during January and February 2009 i.e. much prior to the end of the academic year 2009. It reads as follows:
As per the rules issued in G.O.Ms.Nos.16, 17, 18 Education dated 26.1.2009, the recently promoted teachers need not apply through online. Based on the promotions seniority list, the counselling shall be conducted for the balance of vacancies after completion of the counseling of all existing teachers. If any promoted teacher is absent for counseling, in absentia orders shall be issued after the counseling of that particular category
18. The applicants are bound by the provisions enumerated which is not disputed. These provisions make it amply clear that there is limited scope for the applicants to opt places of choice for their transfers as per the entitlement points, because the juniors who were promoted subsequently in the same cadre were posted at various places and clause (6) of the transfer guidelines dated 19.5.2011 envisages that those places shall not be available to the applicants for giving necessary options in respect of their transfers.
19. It is suffice here in the relevant circumstances to examine the actual situation under which clause (6) of the transfer guidelines dated 19.5.2011 was issued and also the actual situation, in which the applicants are placed, in the context of excluding the places of juniors who were promoted and posted during September 2009 to April 2011.
20. What is most emphasizing is that the applicants were transferred to the places where they are presently working vide proceedings dated 16.7.2009. By virtue of G.O.Ms. No. 66 dated 25.5.2011 they were given option to participate in the ensuing counseling even though they did not complete two years of tenure at their respective places as provided in G.O.Ms. No. 65 dated 19.5.2011. In addition to that, prior to the issuance of G.O.Ms. No. 66 dated 25.5.2011, the juniors were promoted and posted to different places which process was completed by April 2011 commencing from September 2009 as per the procedure laid down. What is significant is that it clearly appears that the posting of juniors who were promoted to the said posts took place during natural course of events and without deviating from the procedure laid down. It is not the case of any body that the postings of the juniors took place illegally or with the intention of depriving the applicants to opt for respective places of transfer. As a matter of fact, such a contemplation cannot be arrived at because G.O.Ms. No. 66 was issued enabling the applicants to participate in the counseling to be effected quite subsequent to effecting the postings of juniors which was completed by April 2011 only. This is in conformity with the rules incorporated in G.O.Ms. No. 15 dated 26.1.2009 and G.O.Ms. No. 65 dated 19.5.2011 to the effect that only after completion of two years of service, the candidates concerned could opt for the places of their transfer. In other words, if option is given to the applicants to choose the places where the juniors are presently working for effecting their transfers, that amounts to not only violation of the rule which provides for the transfer of a candidate after completing two years of tenure at a place on his application, but also infringement of the rights of the juniors ensured under the rule to continue to work at their present places of work subject to the limitations provided.
21. Therefore apparently there is no illegality or any discrimination in framing clause (6) of the transfer guidelines dated 19.5.2011 excluding the places occupied by the juniors for the ensuing counseling to be done for the benefit of the applicants.
22. What is paramount here is the interest of the educational institutions which includes the interest of the students. The Headmasters and other teaching staff are appointed to serve those institutions only. Various rules are framed in the context of serving the purpose of the educational institutions which are to be strictly implemented under normal circumstances. In that process, if any inconvenience is caused to the staff, that is not important.
23. In P.M. Latha''s case, the Supreme Court considered a question with regards to recruitment to the post of Lower Primary/Upper Primary Schools in the Government Schools in the State of Kerala, in respect of which B.Ed. qualification though that qualification was not prescribed, was included. The Supreme Court upon considering various aspects held as under:
Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. The Division Bench forgot that in extending relief on equity to B.Ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were TTC candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had B.Ed. candidates been excluded from the selections. The impugned judgment of the Division Bench is both illegal, inequitable and patently unjust. The TTC candidates before us as appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the Division Bench, therefore, deserves to be set aside and of the learned Single Judge restored.
24. Thereby the position is very clear that the law should be applied and interpreted equitably, whereas equity cannot override written or settled law. In the present context, it is clear that a legal provision has been set up with regards to effecting transfers/postings of Headmasters Gr.II/Teachers in G.O.Ms. No. 15 dated 26.1.2009 and G.O.Ms. No. 65 dated 19.5.2011, whereby the authorities concerned are bound to implement those provisions strictly. Any inconvenience that may be caused to the applicants even on equitable grounds because of the non-availability of the places where the juniors are working by virtue of Rule (6) of the guidelines in G.O.Ms. No. 66 dated 25.5.2011 in the absence of any illegality of the provisions cannot override that rule.
25. In Gobardhan Lal''s case, the respondent therein who was working as District Supply Officer, Meerut came to be transferred by an order dated 8.12.1999 by the Secretary, Food and Civil Supplies Department in the State of U.P. which order involved in posting of not only a substitute to the respondent at Meerut, but also transfer of another officer as well. A grievance was raised with reference to the said transfer order before the High Court of Allahabad that though by order dated 10.4.1999, the respondent, who was serving at Unnao, was transferred to Meerut and joined as such, he came to be transferred again by the impugned order due to political pressure and influence to the Head Office at Lucknow in order to help another to be posted in his place and it was also claimed that the transfer order was made for extraneous purposes. The Supreme Court while rejecting the said plea held as under:
It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or
every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer
26. In Muralidhara Menon''s case, it is held similarly by the Supreme Court while considering transfer of certain employees from Gujarat to Kerala that transfer as is well known is an incident of service, that an employee has no right to be posted at a particular place and that he, in law, cannot exercise his option to be posted in his home State unless there exists any statute or statutory rule governing the field. It is further held by the Supreme Court that a writ of mandamus can be issued, provided there exists a legal right in the applicant and a corresponding legal duty in the respondent and that even otherwise a superior court having a limited jurisdiction in that behalf would not interfere with the discretionary jurisdiction exercised by the statutory authorities unless a clear case for interference is made out subject of course to just exceptions. Similar observation is made under similar circumstances in
27. Consequently, it is clear that the transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. However, aggrieved by the orders of transfer, the employees concerned may approach the higher authorities concerned to make necessary modifications.
28. When clause (6) of the transfer guidelines dated 19.5.11 issued by the respondents with regards to the ensuing counseling for the applicants without notifying the vacancies held by the juniors to the applicants who got promotions and postings during September 2009 to April 2011 are found to be legal, the impugned orders passed by the Tribunal are without merit. Ultimately, the impugned orders are liable to be set aside and are accordingly set aside holding that the respondents are at liberty to proceed with the forthcoming counseling subject to the said clause. Thus, the writ petitions as also the miscellaneous petitions are accordingly allowed. There shall be no order as to costs.
