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2001 DIGILAW 178 (AP)

Kommula Veeraraghavulu v. Revenue Divisional Officer, Rajahmundry

2001-02-20

S.B.SINHA, S.R.NAYAK

body2001
S. B. SINHA, C. J. ( 1 ) THIS application is directed against a judgment and order dated March 8, 1999 passed by the Andhra Pradesh Administrative tribunal in O. A. No. 6210 of 1998 whereby and whereunder the application filed by the petitioner herein was dismissed. ( 2 ) THE petitioner in the said Original application prayed to declare the impugned order of the first respondent in Ref. No. 2124/98 dated August 17, 1998 in respect of items 2 and 3 reverting the petitioner to the post of Village Servant from Night Watchman for want of vacancy and directing the petitioner to join at his previous post by effecting transfer so as to accommodate the third respondent, as illegal, arbitrary and violative of principles of natural justice. ( 3 ) THE following facts are not disputed. The petitioner was appointed as Village Servant on January 27, 1970. He was promoted to the post of Night Watchman on or about July 23, 1994. He was transferred thereafter to alamuru. By reason of the impugned order dated August 17, 1998, the petitioner, who was temporarily promoted as Night Watchman, was reverted as Village Servant for want of vacancy. He was directed to join in the previous post as Village Servant immediately. The learned Tribunal in the order impugned in this writ application inter alia held:"from the counter, it is seen that though Sri m. Venkataswamy is junior to the applicant, he belongs to S. C. community and he was promoted in S. C. quota and as such, he cannot be reverted. From the counter, it is also seen that one Sri B. Srinivasarao who belongs to B. C (B) and who went on leave, reported for duty and thus the applicant was reverted and posted as Village Servant. The party respondent Sri C. Chittibabu was already working as Night Watchman and he is also senior to the applicant. If that is so, we do not see any illegality or irregularity in the impugned reversion order. The O. A. is thus, devoid of merits and it is accordingly dismissed. V. M. A. also stands disposed of. The party respondent Sri C. Chittibabu was already working as Night Watchman and he is also senior to the applicant. If that is so, we do not see any illegality or irregularity in the impugned reversion order. The O. A. is thus, devoid of merits and it is accordingly dismissed. V. M. A. also stands disposed of. " ( 4 ) THE learned Counsel for the petitioner drew our attention to ground No. 1 of the writ affidavit, which is in the following terms:"the Hon ble A. P. Administrative tribunal, has not considered the aspect that sri B. Srinivasa Rao, who belongs to B. C. (B) category who went on leave for long time and reported for duty, is now placed at civil Supplies Department at Kakinada and hence there is no necessity to revert me as the said Srinivasa Rao, is already being accommodated and as such there is no need for want of vacancy. " ( 5 ) OUR attention has also been drawn to the counter affidavit wherein the aforementioned statements have been traversed, which is in the following terms:"in reply to ground No. 1 it is submitted that it was the Collector s unit that has given posting orders to Sri B. Sreenivasa Rao in collector, East Godavari, Kakinada proceedings Ref. A-7/7/98, dated October 21, 1998 to work as Attender under Civil supplies Deputy Tahsildar in Rayavaram only on deputation basis, in which it was further stated that he would be sent back again to Rajahmundry Division at any time for want of vacancy in the Collectorate Unit. So the allegation of the petitioner that Sri B. Sreenivasa Rao was already being accommodated and stating no need for want of vacancy is incorrect. " ( 6 ) THE learned Government Pleader for services-II, on the other hand, submitted that having regard to the order of stay passed by this court the petitioner was accommodated, but in fact, there does not exist any vacancy. The learned Counsel for the State appears to be correct. A pleading must be read in its entirety and the same so read can only be relied on for the purpose of culling out the facts stated therein. It is admitted that the promotion to the post of Night Watchman granted to the petitioner was absolutely temporary in nature. The learned Counsel for the State appears to be correct. A pleading must be read in its entirety and the same so read can only be relied on for the purpose of culling out the facts stated therein. It is admitted that the promotion to the post of Night Watchman granted to the petitioner was absolutely temporary in nature. In paragraph 4 of the counter-affidavit, it has been stated:"as Sri B. Sreenivasa Rao, has sought for reposting after resuming his health, who belongs to BC (B) his request was considered and he was reinstated in the vacancy of open competition (i. e. , of the post of petitioner) and as there is no vacancy available against bc category in this Division. For issuing reposting orders to Sri B. Sreenivasa Rao in rajahmundry Division this petitioner was reverted because he was junior-most Night watchman to Sri B. Sreenivasa Rao, who has put in a service of about 10 years in the cadre of Night Watchman and accordingly who is quite senior to the petitioner in this case. " ( 7 ) IT has further been stated:"further, it was as per the final orders of the A. P. Administrative Tribunal, hyderabad in O. A. No. 6210/98 with VMA 551/98, dated March 8, 1999, he was reverted to his original post in this office ref. E. 3028/98, dated April 1, 1999. Then again the petitioner approached the Hon ble high Court of Andhra Pradesh, Hyderabad and obtained interim orders. In obedience to the interim orders of the hon ble High Court of Andhra Pradesh, hyderabad in W. P. M. P. No. 8143/99 in w. P. No. 6515/99, dated April 19, 1999, the petitioner was reinstated in this office ref. E. 3028/98, dated May 7, 1999, subject to condition of further orders passed by the hon ble High Court of Judicature of Andhra pradesh, Hyderabad. " ( 8 ) IT is, therefore, not correct to contend that admittedly there exists a vacancy and thus the petitioner herein could not have been reverted to his original post. Such a case has clearly been made out by the State even in its counter-affidavit filed before this Court, apart from the stand taken by it before the Tribunal as would appear from its findings as referred to supra. Such a case has clearly been made out by the State even in its counter-affidavit filed before this Court, apart from the stand taken by it before the Tribunal as would appear from its findings as referred to supra. ( 9 ) THE question as to whether there exists a vacancy or not is essentially a question of fact. When the State alleges that there does not exist any vacancy, the same has to be considered to be prima facie correct and the burden would be on the writ petitioner to show that the order impugned before the Tribunal was passed for unauthorized purposes or without considering the relevant facts. Such is not the position here. If the petitioner herein had to be accommodated because of the interim order of stay passed by this Court, the same by itself cannot be said to be conclusive as regards the existence of a vacancy of a post. ( 10 ) FOR the reasons aforementioned, we do not find merit in this writ petition, which is accordingly dismissed. No order as to costs.