* THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE S. ASHOK KUMAR +WRIT PETITION NO : 21443 of 2007 % FOURTH DAY OF APRIL, TWO THOUSAND EIGHT # Between: Smt. P. Sukanya W/o. Late Narasimulu R/o.Gonguloor Village, Pulkal Mandal, Medak District. ..... PETITIONER AND $1 Office of Commissioner of Appeals, The Chief Commissioner of Land Administration, A.P. Hyderabad. 2 The Mandal Revenue Officer, Pulkal Mandal, Medak District. 3 The Joinmt Collector, Medak Medak District. 4 P. Bikshapathi S/o.Lakshmaiah Gangloor Villae, Pulkal Mandal, Medak District. 5 P. Narayana S/o.Ellaiah Gangloor Village, Pulkal Mandal, Medak District. .....RESPONDENTS ! Counsel for the petitioner: Mr. B. SAI RAM GOUD ^ Counsel for the respondents : GP FOR SERVICES II & SRI KHAJA MOIZUDDIN < Gist: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE S. ASHOK KUMAR WRIT PETITION NO : 21443 of 2007 Between: Smt. P. Sukanya W/o. Late Narasimulu R/o.Gonguloor Village, Pulkal Mandal, Medak District. ..... PETITIONER AND 1 Office of Commissioner of Appeals, The Chief Commissioner of Land Administration, A.P. Hyderabad. 2 The Mandal Revenue Officer, Pulkal Mandal, Medak District. 3 The Joinmt Collector, Medak Medak District. 4 P. Bikshapathi S/o.Lakshmaiah Gangloor Villae, Pulkal Mandal, Medak District. 5 P. Narayana S/o.Ellaiah Gangloor Village, Pulkal Mandal, Medak District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or direction more Particularly one in the nature of writ of Mandamus to declaring the order dt. 28-9-2007 passed by the Hon'ble A.P. Administrative Tribunal in OA No. 367/2007 in confirming the orders passed by the 1st Respondent in proceedings No.A3/809/2004 dt.5-1-2007 passed for appointment to the post of Village Servant at Gonguloor Village, Pulkal Mandal, Medak District on the basis of Votabandi System by setting aside the appointment of the petitioner to the said post as illegal, unlawful contrary to law and against the A.P. Village Servant Rules issued under G.O.Ms.No. 1849 dt.28-10- 2005 and same may be set aside by upholding the appointment of the petitioner as Village Servant at above Village, and pass such other order which are necessary in the interest of justice. Counsel for the Petitioner: MR.B.SAI RAM GOUD Counsel for the Respondents No.: GP FOR SERVICES II & SRI KHAJA MOIZUDDIN. The Court made the following : THE HON'BLE SMT. JUSTICE T.MEENA KUMARI & THE HON'BLE SRI. JUSTICE S.ASHOK KUMAR WRIT PETITION NO :21443 of 2007 ORDER: (Per the Honourable Smt. Justice T.Meena Kumari) This writ petition is filed by the petitioner seeking to set aside the order of the tribunal, dated 28.9.2007 in O.A.No:367 of 2007. The petitioner herein is the applicant before the tribunal. She filed the above O.A., seeking to declare the action of the 1st respondent in issuing proceedings No.A3/809/04, dated 5.1.2007 confirming the orders passed by the 3rd respondent in proceedings No.A4/7496/2004, dated 4.4.2005 as illegal and arbitrary and to set aside the same and further to direct the respondents to continue the applicant as Village Servant, Gangloor Village, Pulkal Mandal and pay all consequential benefits. It is the case of the applicant that she has been appointed as Village Servant vide proceedings dated 1.2.2006 by the 2nd respondent on compassionate grounds as her husband died on 20.12.2005 while he was in service. Originally, the husband of the applicant was appointed as village servant on 3.12.1990 after following due procedure and he was posted as Village Servant of Gangloor village in the vacancy caused due to death of his father, viz., P. Ankaiah and subsequently, he was directed to allow his other share holders to attend to village servant duties as per previous practice in Vota Bandi system vide letter dated 7.12.2004. The same was challenged by the husband of the applicant before the Chief Commissioner of Land Administration under Rule 73 of A.P. (T.A.) Village Officers Service Rules, 1978. But, the said appeal was rejected directing the husband of the applicant to file an appeal before the R.D.O concerned. The said proceedings were challenged before the tribunal in O.A.No.6480 of 2004 and the tribunal disposed of the same with a direction to file an appeal before the District Collector, Medak. Subsequent thereto, the Joint Collector vide proceedings dated 4.4.2005 directed the husband of the applicant to allow his share holders to work on Vota Bandi System as per instructions contained in Memo No.91991/06-1/02-3, dated 23.1.1996. On that, the applicant’s husband filed an appeal before the 1st respondent, in which the 1st respondent granted stay against the orders of the Joint Collector. Thereafter, O.A.No.1565 of 2006 was filed seeking a direction to the respondents to continue the applicant as Village Servant as per the proceedings issued by the 1st respondent dated 1.2.2006. The tribunal dismissed the O.A., as not maintainable while directing the applicant to file a stay petition before the 2nd respondent within four weeks from the date of receipt of the order and granting status quo till such time to continue the applicant and further directing the 1st respondent to dispose of the appeal No.3/809 of 2004 within two months from the date of receipt of the order. But the 1st respondent dismissed the appeal and vacated the status quo orders. Having aggrieved by the same, the present O.A., has been filed. The tribunal having observed that the applicant has not disputed about the prevalence of the custom of the local vota Bandi System and as such the applicant cannot get better rights than what her husband had before his demise and the applicant is not questioning the memos issued by the Government directing all the Collectors to follow the Vatandhari System to the village servants and as such, there are no grounds to interfere with the orders impugned, dismissed the O.A. while making it clear that the applicant is entitled to work as Village Servant in terms of the compassionate appointment orders issued by the 2nd respondent under the Vatandhari system. Heard the learned Counsel appearing for the petitioner and the learned Government Pleader and the learned Counsel appearing for the 4th respondent and perused the material available on record. The learned Counsel for the petitioner-applicant contended that after issuing A.P. Village Servants Service Rules under G.O.Ms.No.1849, dated 28.10.1995, the question of continuation of Votabandi/Vatandari System in making appointment of Village Servants on rotation basis does not arise and that the petitioner- applicant was appointed only under the new Service Rules issued in G.O.Ms.No.1849 and that the Government Memo dated 23.1.1996, in which, all the District Collectors are informed to continue Votabandi System in Telanga Area by making appointment of Village Servant on rotation system, shall be deemed to have been cancelled on issuance of statutory service rules under G.O.Ms.No.1849, dated 28.10.2005 and that the tribunal having ignored all these facts, passed the impugned order and therefore, the same is liable to be set aside. On the other hand, the learned Government Pleader contended that the Votabandhi system is practiced in the villages prior to the appointment of not only the applicant but from the period of their fore-fathers. Before going to deal with the case on hand, it is relevant to mention the new rules in G.O.Ms.No.1849, Revenue (VO), dated 28.10.2005: These Rules have come into force with effect from 1st January, 2002. In exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of earlier Rules issued in respect of village servants, the Governor of A.P. makes the Rules regulating the recruitment and condition of service of Village servants for the entire State of A.P. Rule 8 deals with appointment in resulting vacancies due to amalgamation or bifurcation of villages: Rule 8(3) reads as hereunder: Notwithstanding anything contained in sub-rule (1) and clause (c) of sub-rule (2) above, the spouse /dependent children of a Village Servant who dies in harness before attaining the age of 60 years may be appointed as Village Servant provided that there is no other earning member in the family of such deceased Village servant and an application is made in this regard within a period of one year from the date of death of such Village Servant. Part IV Rule 19 deals with payment of Salaries and allowances: there shall be paid to the village servants a fixed monthly honorarium as may from time to time be determined by the Government (2) They shall also be paid every month such other allowances as the Government may from time to time sanction. (3) The village servant shall be paid traveling allowances and daily allowances for such journeys and at such rates as the Government may from time to time specify. A perusal of the rules enunciated under the Rules-2005, does not disclose as to the practice or custom of rotation system to the post of the Village Servants. At this stage, it is also relevant to note that the appointment of the applicant, which was admittedly made as per the proceedings, dated 1.2.2006, is subsequent to the above Rules-2005. Even, the perusal of the appointment order of the applicant does not disclose as to the practice or custom of rotation system of the village servant and apart from that, there is no such condition to the applicant to follow the rotation system. In the absence of any such regulations in the above rules governing the rotation system and in view of the superceding of the earlier rules issued in respect of the village servants and in view of the prevailing of the present Rules-2005, the contention of the respondents as well as the finding of the tribunal that the husband of the applicant and his fore fathers had acted in the post of village servant as per the rotation system and therefore, the appointment of the applicant has also been made on the said system and as such, the applicant cannot deny the previous custom or practice, are beyond the spirit of the G.O.Ms.No.1849, dated 28th October, 2005 under which the A.P. Village Servant Service Rules, 2005 have been framed by superseding the earlier rules and as such, they cannot be sustained. But, the tribunal has failed to consider all these aspects in the light of the above Rules. Therefore, We have no hesitation to hold that the order of the tribunal is not sustainable and thereby, the order of the 1st respondent impugned in the O.A is liable to be set aside. Accordingly, this writ petition is allowed setting aside the order of the Tribunal passed in O.A.No.367 of 2007, dated 28.9.2007. No order as to costs. ____________________ Justice T.Meena Kumari ___________________ Justice S.Ashok Kumar Dated:4.4.2008 L.R. COPY TO BE MARKED - YES. (BO) Gurc/nn THE HON'BLE SMT. JUSTICE T.MEENA KUMARI & THE HON'BLE SRI. JUSTICE S.ASHOK KUMAR WRIT PETITION NO :21443 of 2007 (Division Bench Order delivered by Honourable Smt. Justice T.Meena Kumari) 04/04/2008 ,