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Nagi Reddy Vs. B. Sayanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 64 of 1980
Judge
Reported inAIR1982AP48
ActsAndhra Pradesh (Telangana Area) Village Officers Service Rules, 1978 - Rule 59; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 1 - Order 42, Rule 1
AppellantNagi Reddy
RespondentB. Sayanna and ors.
Appellant AdvocateR.V. Venkatarami Reddy, Adv.
Respondent AdvocateC.B. Ramamohan Reddy, Adv.
Excerpt:
civil - questions of fact - rule 59 of andhra pradesh (telangana area) village officers service rules, 1978 and order 42 rule 1 of code of civil procedure, 1908 - certain village post fell vacant - allegation that respondent applied for post even before notification was issued - respondent's appointment under challenge - such questions are questions of fact which ought to be raised at initial stages. - - he observed that if an application anterior to the notification is received after the office fell vacant it is difficult to state that the consideration of such an application is bad in law......respondent herein ought not to have been considered as there was no application by him for the post after the notice calling for applications was issued. the first respondent had applied for the post on 9-1-1977 after the post became vacant but before the notification, calling for applications was published on 20th jan 1977. the commissioner held that this was not a valid application as contemplated by the rules. in the result, be held that the case of the first respondent did not fall for consideration at all. he considered inter se the claims of the others and held that the appellant herein deserved to be appointed to the post. as against the decision of the commissioner the first respondent herein preferred a revision petition to the government which was dismissed. thereafter the.....
Judgment:

Alladi Kuppuswami, C.J.

1. This appeal is directed against the judgement of Raghuvir, J. allowing writ Petition No. 4046 of 1979 filed by the first respondent herein and directing the Commissioner of Land Revenue to consider the Suitability of the Writ Petitioner along with other applicants for the post of Karnam of Chabolu village.

2. The Writ petition was filed with the following allegations. The Karnam of Chabolu village died on 30 th Dec. 1976 with the result the post fell vacant. On 20th Jan. 1977, the Tahsildar, Nandyal issued notice under R. 10 of the Andhra Pradesh Village Offices Service Rules calling for applications for the post. At the interview, however, only seven were present. The Revenue Divisional Officer considered that among the candidates, the first respondent herein was suitable for appointment and appointed him. The first respondent, however, did not have the requisite educational qualification prescribed under R. 10 as he did not pass the 8th class. The Sub-Collector, therefore, granted him exemption from the prescribed educational qualification under R. 12.

3. On the appeal, the District Revenue Officer confirmed the decision of the Sub Collector. On further appeal, however, the Commissioner, Land Revenue held that the claims of the first respondent herein ought not to have been considered as there was no application by him for the post after the notice calling for applications was issued. The first respondent had applied for the post on 9-1-1977 after the post became vacant but before the notification, calling for applications was published on 20th Jan 1977. The Commissioner held that this was not a valid application as contemplated by the rules. In the result, be held that the case of the first respondent did not fall for consideration at all. He considered inter se the claims of the others and held that the appellant herein deserved to be appointed to the post. As against the decision of the Commissioner the first respondent herein preferred a revision petition to the Government which was dismissed. Thereafter the first respondent herein filed the Writ Petition. Our learned brother, Raghuvir, J. was of the view that no rule was transgressed by considering the application of the first respondent even though it was prior to the calling of the applications of the notice of the Tahsildar. He observed that if an application anterior to the notification is received after the office fell vacant it is difficult to state that the consideration of such an application is bad in law. At any rate, when once an application has been considered by the authorities concerned, there was no reason to hold that the appointment is invalid.

4. Challenging the order of Raghuvir. J. this appeal has been filed. Sri. A. Venkatarami Reddy, learned counsel for the appellant reiterates the contentions but forward before the Commissioner of Land Revenue that there was no valid application by the first respondent in as much as he did not make any application after the notice calling for applications was issued and any applications made prior to that date though made after the vacancy arose should not have been considered, He relies upon the decision of a single Judge of this Court in Writ Petn. No. 2041 of 1974 D/- 17-11-1975. On the other hand, it is contended by the learned counsel for the first respondent that the said decision is not correct and it is open to the authorities to consider even an application received before the notice issued by the Tahsildar provided it was heard after the vacancy arose.

It was further contended that the Commissioner Land Revenue erred in going into the question when this contention was not raised either before the Sub Collector or before the District Revenue Officer at the stage of first appeal before him. He stated that as a matter of fact, the first respondent had made a further application and in support of this submission, he produced a certificate of posting dated 29-1-1977 in order to show that two covers were addressed to the Sub Collector and to the Tahsildar. It is submitted that these covers contained applications for the post. It cannot be said with certainly what the contents of the covers are merely because the certificate of posting is produced before us.

However, the question whether an application was made subsequent to the issue of notice calling for applications for the post or not is a question of fact which has to gone into by the appointing authority in the first instance. If the other contestants had raised this question the first respondent would have had an opportunity to satisfy the authorities either that he made a fresh application after the notice was issued or that he requested that his previous application should be treated as an application subsequent to the issue of notice, but no such contention was raised, and from the order of the Sub Collector, we find that everybody proceeded on the footing that applications of all the persons considered by the Sub Collector were valid. Even at the time of preferring Officer against the order of the Sub Collector appointing the first respondent, no contention was raised that the first respondent had made any application after the issue of the notice and the application made previously was invalid and ought to have been ignored. For the first time, one of the appellant herein, appears to have raised the contention that there was no valid application by the first respondent as he had not applied subsequent to the issue of the notice. We are of the view that the Commissioner, Land Revenue was not justified in allowing the appellant before him to raise this contention which is based upon a pure question of fact for the first time in the appear; before him. He ought to have proceeded on the footing, as the Subcollector and the District Revenue Officer die, that all the applications which were made were valid and considered the other contentions regarding the suitability of the candidates. Instead of doing so, he ignored the case of the first respondent on the ground that there was no valid application and proceeded to consider the inter se claims of others. We have therefore no hesitation in setting aside the order of the Commissioner, Land Revenue.

In this view, it is unnecessary for us to go into the question whether in the absence of any application by a candidate for the post of Village Officer subsequent to the issue of notice, his claims can be considered on the basis of an application made by him prior to the notice but after the vacancy arose and whether the decision of this Court in writ petition No. 2041 of 1974 dated 17-11-1975 requires reconsideration.

5. It was argued by the learned counsel for the appellant that even assuming that the claims of the first respondent fell to be considered on the ground that there was an application by him, the Sub Collector was wrong in granting exemption from educational qualification under R. 12. In this connection reliance was placed on the decision Jagannadham v. Board of Revenue A. P. (1977) I AP LJ (HC) 90 in which it was observed with reference to R. 13 that the Revenue Divisional Officer should not have invoked the power under this Rule and that this rule will come into play only when no qualified candidates are available and it becomes necessary or expedient to appoint an unqualified candidate. We do not wish to express any opinion on this aspect for the reason that the Commissioner did not go into this question as he took the view that the claim of the first respondent could not be considered at all as there was no valid application by him. Now that according to the direction of Raghuvir. J. the matter has to be considered again by the Commissioner, this question also will be considered by him viz., whether the exemption from the educational qualification granted to the first respondent by this Sub Collector was proper or valid according to the rules. The Commissioner will consider the suitability of the appellants before him and that of the first respondent herein in the light of decision of this court.

6. The Writ Appeal is dismissed No costs. Advocate's fee Rs. 100/-

7. Appeal Dismissed.


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