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2001 DIGILAW 700 (AP)

K. Vishnumurthy v. Government Of A. P.

2001-07-10

S.B.SINHA, V.V.S.RAO

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S. B. SINHA, CJ, J. ( 1 ) INTERPRETATION of a definition clause in the Andhra Pradesh village Administrative Officers Service rules, 1990 (hereinafter referred to as the said Rules for the sake of brevity) falls for consideration in this writ petition. ( 2 ) G. O. Ms. No. 943, Revenue (V. O.), dated 7. 11. 1990 prescribing the said Rules was issued by the Government of Andhra pradesh in exercise of its powers conferred by the proviso to Article 309 of the constitution of India. The said Rules thus have statutory force. By reason of Rule 3 of the said Rules a Village Administrative officer may be appointed for every village or for a group of villages as the Government or the Commissioner of Land Revenue may from time to time consider necessary. ( 3 ) THE petitioner s father was a Patel, which would mean a Patel appointed under the Andhra Pradesh (Telangana Area) Village officers Service Rules, 1978. The petitioner s father was said to have acted as mali Patel and Police Patel of Ootpally, gandiguda Villages from 31. 5. 1961 to 6. 1. 1984. The petitioner allegedly assisted his father in discharge of his official duties and in support of the said contention two sheets have been produced before us to show that he had prepared some taktas , wherein he has written the details of births and deaths in respect of 28 persons. ( 4 ) WE do not find any rule whereby and whereunder for the purpose of appointment of Village Administrative officer the case of an erstwhile Village officer may also be taken into consideration. However, the petitioner s entire case is based on no such earlier appointments, as noticed by the learned Tribunal. Erstwhile Village administrative Officer has been defined to mean:"2. XXXX (D) "erstwhile Village Officer" means any person who held any of the village office of headman, Munsif, Reddy, Monigar, peddakapu, Patel, Karnam or Patwari or triune officer or holder of any such village office by whatever designation it may be locally known including their assistants on or prior to the commencement of the Andhra pradesh Abolition of Posts of Part-time village Officers Act, 1985. (Explanation :for the removal of doubts it is hereby declared that for the purposes of this clause the word patel shall mean a patel appointed under the A. P. (Telengana area) Village Officers Service Rules, 1978.)" ( 5 ) THE learned Counsel would contend that the said definition is of wide amplitude and is inclusive of not only the person who has held any office, but even their assistants come within the purview thereof. ( 6 ) WE are unable to agree with the said contention. All Rules made under the proviso appended to Article 309 of the constitution of India must conform to articles 14 and 16 of the Constitution of india. ( 7 ) A person who has assisted his father without any authority whatsoever cannot be a person who obtains a legal right for appointment. Articles 14 and 16 strikes at arbitrariness. If the meaning attributed to the erstwhile Village Officer , as submitted by the learned Counsel, is accepted, the same per se would be violative of articles 14 and 16 of the Constitution of india. If such an argument is accepted, service by way of descent will come into being in inasmuch as all employees occupying the posts may be held to be entitled to appoint their sons and other relatives to assist them, de hors the statutory recruitment rules, as a result whereof, they would also be entitled to be considered for appointment and consequently cases of other persons competent and eligible to be considered for appointment therein would be ignored. ( 8 ) RULE 2 (d) therefore must be interpreted in such a way so that it can be upheld constitutionally. So construed, it must be held to mean that the "assistant" must be a person who had been appointed in terms of the Rules and upon following the recruitment procedure laid down therefor and not those who were appointed by the officers themselves who had no authority to do so. ( 9 ) FURTHERMORE, such assistants must be appointed on or prior to the commencement of the Andhra Pradesh abolition of Posts of Part-time Village officers Act, 1985 (hereinafter referred to as the Act for the sake of brevity ). The petitioner even did not fulfil that criterion, as it is not his case that he was appointed as an Assistant, prior to the commencement of the Act. The petitioner even did not fulfil that criterion, as it is not his case that he was appointed as an Assistant, prior to the commencement of the Act. ( 10 ) THE submission of the learned counsel to the effect that other persons similarly situated have been appointed by the District Collector cannot be accepted and the learned Tribunal has rightly held that it cannot become a binding precedent. Article 14 of the Constitution of India is a positive concept. If some person or persons had been appointed illegally which is contrary to the constitutional mandate or de hors the rules thereby, the petitioner cannot derive any legal right to be appointed nor such illegal appointments can be taken in aid of for bringing his case within the four corners of Article 14 of the constitution. ( 11 ) FURTHERMORE, the illegalities cannot be directed to perpetuated. For the purpose of issuance of a writ of or in the nature of a mandamus the petitioner must show existence of a legal right in himself and a corresponding legal duty in the respondent- state. The petitioner has utterly failed to do so. ( 12 ) FOR the reasons aforementioned, there is no merit in this writ petition and it is accordingly dismissed. No order as to costs.