S.R. Nayak, J.
1. A short question that arises for decision in this writ petition is whether the respondent herein is entitled to the benefit of the proviso to Clause (b) of Sub-rule (14) of Rule 3 of A.P. Ministerial Service Rules, 1966 (for short 'the Ministerial Service Rules'). This question arises in the following factual background.
2. The respondent herein, Mr. Deena Raju, was initially appointed as Village Servant during the year 1982 under A.P. (Andhra Area) Village Officers Service Rules, 1969 (for short, the Village Officers Service Rules') on part-time basis. When he was serving as such, in the year 1991 he was appointed to the post of Attender by way of recruitment by transfer with effect' from 26-3-1991. At the time of his appointment as Attender in the year 1991, he had passed Matriculation and Typewriting English Lower Grade Examination. The respondent herein made a representation to the petitioner-authorities on 10-3-1996 contending that he is entitled to be appointed as Junior Assistant-cum-Typist in terms of the proviso to Clause (b) of Sub-rule (14) of Rule 3 of the Ministerial Service Rules. Since there was no positive response in time to the representation of the respondent, he filed O.A.No. 3426 of 1996 in the Andhra Pradesh Administrative Tribunal, Hyderabad (for short 'the Tribunal') and the said O.A. was disposed of by the Tribunal directing the respondents therein to examine the case of the respondent as per the statutory rules for his appointment by transfer as Typist. Even that direction was not complied with by the petitioner-authorities within the prescribed time and, therefore, the respondent filed C.A.No. 179 of 1997 which was disposed of on 11-2-1998 directing the petitioner-authorities to consider the representation filed by the respondent. Subsequently, the representation of the respondent was considered and rejected by the District Collector, Guntur District, Guntur by his proceedings D.Dis. No. 3333/97-A6, dated 16-5-1998.
3. The respondent being aggrieved by the above order of the District Collector dated 16-5-1998 filed O.A.No. 4435 of 1998 before the Tribunal for quashing the said proceedings of the District Collector and seeking declaration that the service rendered by the respondent as 'village servant' is required to be taken into consideration for the purpose of appointing him as Junior Assistant or Junior Assistant-cum-Typist as he had the prescribed minimum general educational qualification as well as technical qualification and for a consequential direction to the petitioner herein to consider his case for appointment as Junior Assistant or Junior Assistant-cum-Typist in the existing vacancies. Opposing the Original application, the petitioner authorities filed their counter.
4. Before the Tribunal, on behalf of the respondent-applicant, it was contended that since the respondent has passed Matriculation and also Typewriting lower grade in English and completed five years of service in the department, he is entitled to be, considered for appointment to the post of Junior Assistant or Junior Assistant-cum-Typist. On behalf of the petitioner-authorities herein, it was contended that since the respondent does not possess the requisite technical qualification and Intermediate qualification, he is not eligible for being appointed as a Junior Assistant or Junior Assistant-cum-Typist. The petitioner authorities maintained that in terms of Ministerial Service Rules, a person to be appointed as Junior Assistant or Junior Assistant-cum-Typist must have passed the Government Technical Examination in typewriting by Higher Grade in Telugu on Government standard key board and that since the respondent does not have the qualification of passing Government Technical Examination in Typewriting either by higher grade in Telugu or lower grade in Telugu, he is not technically qualified for being considered for appointment as Typist. As regards educational qualification of the respondent-applicant for being appointed as Junior Assistant or Junior Assistant-cum-Typist, the stand of the petitioner authorities was that as the respondent has not passed Intermediate Examination and as the services rendered by the respondent-applicant as 'Village Servant' were prior to 29-10-1987, the same cannot be taken into consideration in computing the qualifying service for the purpose of the exemption provided under Sub-rule 14(b) of Rule 3 of the Ministerial Service Rules. It was further contended by the petitioner authorities that the respondent-applicant was appointed as village servant only on part-time basis and therefore the service to which the respondent-applicant belongs as village servant could not be treated as a 'service' for the purpose of granting exemption provided under Sub-rule 14(b) of Rule 3 of the Ministerial Service Rules.
5. The learned Tribunal placing reliance on the Judgment of the Supreme Court in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, : [1961]2SCR931 held that the respondent-applicant is a public servant and he holds a civil post. He is entitled to be appointed as Junior Assistant or Junior Assistant-cum-Typist for he possesses minimum general educational qualifications as well as technical qualification. In that view of the matter, the Tribunal directed the petitioners herein to consider the case of the respondent-applicant for appointment to the post of Junior Assistant or Junior Assistant-cum-Typist treating him as qualified in any vacancy that may arise in future which has to be filled up by appointment by transfer by a person belonging to the A.P. Last Grade Service Rules as per A.P. Ministerial Service Rules and according to the respondent's seniority. Hence, this writ petition assailing the legality and validity of the said order of the Tribunal.
6. The learned Government Pleader for Services-I reiterated the same contentions advanced on behalf of her clients before the Tribunal. On the other hand Sri P.V. Subrahmanya Sarma, learned Advocate for the respondent-applicant supported the impugned order of the learned Tribunal.
7. The only point that arises for consideration of the Court is whether the respondent-applicant is entitled to be considered for appointment to the post of Junior Assistant or Junior Assistant-cum-Typist in terms of Clause (b) of Sub-rule 14 of Rule 3 of the Ministerial Service Rules or not.
8. Admittedly, the petitioner was appointed as Village Servant in the year 1982 on part-time basis under the provisions of Village Officers Service Rules. Rule 3 of those rules states that the services contemplated under those rules shall consist of certain classes and categories of Village Officers and village servants enumerated in the said rule. Rule 4 provides for appointment of such Village Officers and village servants as the Board of Revenue may, from time to time consider necessary, for every village or a part of a village or for a group of villages. Under Rule 5, the Revenue Divisional Officer is the appointing authority in respect of categories of employees specified in Clause (sic. Class) I of the Service whereas the Tahsildar is the appointing authority in respect of the employees in categories specified in Class II thereof. Rule 15 provides that the village officers and the village servants of the service should be treated as part-time Government employees. The words 'this service' occurring in Rule 15 of the Village Officers Service Rules clearly indicate that even a part-time village servant is a public servant belonging to the service established under the Village Officers Service Rules. Moreover, the appointment of the village servants is fully governed by the rules framed by the Governor under the proviso to Article 309 of the Constitution of India.
9. A Constitution Bench of the Supreme Court in Gazula Dasaratha Rama Rao (1 supra), was called upon to decide the question whether the Office of the Village Munsif under the Madras Hereditary Village-Officers Act, 1895 is an office under the State within the meaning of that term in Article 16(1) and (2) of the Constitution of India. In that case on behalf of the State, it was contended that the expression 'office under the State' has a restricted connotation and does not include a village office like that of the village Munsif. The Apex Court placing reliance on its earlier Judgments in M. Ramappa v. Sangappa, : [1959]1SCR1167 Angurbala Mullick v. Debabrata Mullick, : [1951]2SCR1125 and Kalipada Chakraborti v. Palani Bala Devi, : [1953]4SCR503 and the Judgment of the Privy Council in Lakhamgouda Basavprabhu Sardesai v. Baswantrao, AIR 1931 PC 157 and the full Bench Judgment of the Madras High Court in Venkata v. Rama, ILR 8 Mad. 249 (D.B.) repelled the above contention of the State and held that a village officer is a person who holds a public office and that he is a holder of a civil post. In The State of Assam v. Kanak Chandra, : (1968)ILLJ288SC the Apex Court while holding that a Mauzdar in the Assam Valley appointed under the Assam Land and Revenue Regulation (1 of 1886) is the holder of a civil post under the State was pleased to observe:
'.... There is no formal definition of 'post' and 'civil post'. The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, see marginal note to Article 311. In Article 311, a member of a civil service of the Union or an All-India service or a civil service of a State is mentioned separately, and a civil post. Means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State, see the marginal notes to Arts. 309, 310 and 311. The heading and the sub-heading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.
(10) In the context of Articals, 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds 'office' during the pleasure of the Governor of the State, except as expressly provided by the Constitution. See Article 310(1). A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative, control of the State. The State may create or abolish the post and may regulate due conditions of service of persons appointed to the post.'
In the light of the above Judgments, of the Apex Court, the opinion of the Tribunal that the respondent-applicant is a public servant and is holding a civil post is fully justified.
10. Rule 3 (14) (b) of Ministerial Service Rules reads:
'(b) Record Assistants and members of equivalent categories in other services and members of Andhra Pradesh Last Grade Services and members of other services shall not be eligible for appointment by recruitment by transfer to the posts of Junior Assistants, Typists and Junior Stenographers in the subordinate offices viz., offices other than the Heads of Departments and Directorates unless they possess the qualification of pass in Intermediate Examination and the other qualifications prescribed and put in not less than five years of regular service in such categories:
Provided that those appointed prior to 29th October, 1987 may be considered for appointment by recruitment by transfer to the post mentioned above, if they posses Minimum General Educational Qualification and put in not less than five years of regular service.'
As per Rule 3 (14) (b) of Ministerial Service Rules, Record Assistants and members of equivalent categories in other services and members of Andhra Pradesh Last Grade Services and members of other services would be eligible for appointment by recruitment by transfer to the posts of Junior Assistants, Typists and Junior Stenographers in the subordinate offices only if they possess the qualification of pass in Intermediate examination and other qualifications prescribed and put in not less than five years of regular service in such categories. However, the proviso to Rule 3(14)(b) of Ministerial Service Rules makes an exception stating that the Record Assistants and members of equivalent categories in the three services enumerated in Clause (b), if they were appointed prior to 29th October, 1987, they can be considered for appointment by recruitment by transfer to the posts of Junior Assistants, Typists and Junior Stenographers, as the case may be, in the subordinate offices if they possess minimum general educational qualification and put in not less than five years of regular service.
11. In the instant case, there is no controversy that the post of Attender is equivalent to the post of Record Assistant. The respondent was appointed to the post of Attender by way of recruitment by transfer with effect from 26-3-1991. Therefore, he completed five years of regular service in that cadre on 25-3-1996. Secondly, the respondent is a member of 'other services' within the contemplation of that term occurring in Clause (b) of Sub-rule (4) of Rule 13 of the Ministerial Service Rules. There is also no controversy that when the respondent was appointed as Attender with effect from 26-3-1991, he had the minimum general educational qualification of passing Matriculation and he had also possessed the prescribed technical qualification of passing Typewriting English Lower Grade Examination. In other words, the respondent-applicant is possessing all the requisite qualifications and the service experience to attract the provisions of the proviso to Clause (b) of Sub-rule (14) of Rule 3 of the Ministerial Service Rules. In that view of the matter, the 1st respondent's claim for appointment to the post of Junior Assistant or Junior Assistant-cum-Typist is well justified and no exception can be taken to the order of the Tribunal.
12. There is also no merit in the contention that since the 1st respondent was initially appointed on part-time basis as village servant, he cannot be considered to be a Member belonging to 'other services' within the contemplation of that term in Clause (b) of Sub-rule (14) of Rule 3 of the Ministerial Service Rules. As pointed out, Rule 15 of the Village Officers Service Rules itself clearly shows that even village servants are the members of the service ('this service') established under those rules. Further, Rule 15 itself mandates that the Village Officers and the village servants of the service should be treated as part-time Government employees. Be that as it may, the learned Government Pleader for Services I was not in a position to refer to or bring to our notice any of the provisions of the Ministerial Service Rules or any other statutory rules or the rules framed by the Governor under the proviso of Article 309 of the Constitution of India by force of which part-time village servants by force of which an Attender belonging to 'other service' could be taken out of the purview of the proviso to Clause (b) of Sub-rule (14) of Rule 3 of Ministerial Service Rules only on the ground that such Attender was initially appointed as village servant on part-time basis under Village Officers Service Rules, 1969.
13. In the result, we do not find any substantive flaw in the Judgment of the Tribunal warranting our interference under Article 226. Writ Petition is devoid of merit and is accordingly dismissed with no order as to costs.