Full Judgment Text
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PETITIONER:
GAZULA DASARATHA RAMA RAO
Vs.
RESPONDENT:
THE STATE OF ANDHRA PRADESH & OTHERS
DATE OF JUDGMENT:
06/12/1960
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
HIDAYATULLAH, M.
GUPTA, K.C. DAS
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION:
1961 AIR 564 1961 SCR (2) 931
CITATOR INFO :
R 1966 SC1571 (10,11)
RF 1972 SC1586 (6)
R 1977 SC 876 (2)
RF 1982 SC1107 (6,7)
RF 1985 SC 724 (3)
RF 1987 SC1015 (17)
ACT:
Village Offices--Village Munsif--Enactment Providing for
selection of Post according to
heredity--Constitutionality--Madras Hereditary
Village--Offices Act, 1895 (3 of 1895). s.
6(1)--Constitution of India, Art. 16(1)(2).
HEADNOTE:
Village P in the State of Andhra Pradesh was originally
comprised of a village of the same name and a fairly large
hamlet called PP, but in view of the difficulties in the two
being treated as one unit for purposes of village
administration the Board of Revenue sanctioned the
bifurcation of P into two villages, P and PP. On the
division of the village all the hereditary village offices
of the original village ceased to exist under s. 6(1) of the
Madras Hereditary Village-Offices Act, 1895, and new offices
were created for the two villages. The section provided,
inter alia, that "in choosing persons to fill such new
offices the Collector shall select the persons whom he may
consider the best qualified from among the families of the
last holders of the offices which have been abolished."
Though applications for the post of Village Munsif of PP had
been invited by the Revenue authorities and the petitioner
among others had made the application, respondent 4 who was
the son of the Village Munsif of the old village, P, was
selected on the ground that in view of s. 6(1) of the Act,
as the last holder of the office was appointed to the new
village, P, after bifurcation, respondent 4 as the son of
the last holder and nearest heir had a preferential claim
for the post of Village Munsif for PP. The petitioner
challenged the validity of the order of the Revenue
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authorities on the grounds (1) that the office of Village
Munsif was an office under the State, and that the order in
favour of
932
respondent 4 which expressly stated that they proceeded on
the basis of the hereditary principle laid down in s. 6(1)
of the Act, discriminated against him as a citizen on the
ground of descent only and violated the guarantee of equal
opportunity enshrined in Art. 16 of the Constitution of
India, and (2) that s. 6(1) of the Act, to the extent that
it permitted such discrimination was void under Art. 13(1)
of the Constitution. The plea of the respondents was (1)
that the expression "office under the State" in Art. 16 had
no, reference to an office like that of the Village Munsif
which in its origin was a customary village office later
recognised and regulated by law, and (2) that Art. 16 did
not apply to a hereditary office because a person entitled
to it under the Act had a pre-existing right to the office
and its emoluments which could be enforced by a suit.
Held: (1) that a village office like that of the Village
Munsif was an office under the State within the meaning of
Art. 16 of the Constitution of India;
M. Ramappa v. Sangappa and otheys, [1959] S.C. R. 1 167,
referred to.
(2) that a person entitled to an office under s. 6(1) of
the Madras Hereditary Village-Offices Act, 1895, did not
have any pre-existing right to property in the shape of
emoluments of the office, independent or irrespective of the
office, and consequently to such an office Art. 16 applied;
and,
(3) that s. 6(1) of the Act embodied a principle of
discrimination on the ground of descent only and was in
contravention of Art. 16(2) of the Constitution.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 133 of 1959. Petition
under Art. 32 of the Constitution of India for enforcement
of Fundamental Rights.
A. V. Viswanatha Sastri and G. Gopalakrishnan, for the
petitioner.
D. Narasa Raju, Advocate-General, of Andhra Pradesh, D.
Venkatappayya Sastri and’ T. M. Sen, for respondents Nos. 1-
3.
T. V. R. Tatachari, for respondent’1 No. 4.
1960. December 6. The Judgment of the Court was delivered
by
S. K. DAS, J.-This is a writ petition under Art. 32 of the
Constitution. Gazula Dasarstha Rama Rao is the petitioner.
The respondents are (1) the State of Andhra Pradesh, (2) the
Board of Revenue, Andhra Pradesh, (3) the Collector of
Guntur in Andhra Pradesh and (4) Vishnu Molakala
Chahdramowlesshwara
933
Rao. The petitioner prays that this Court must declare s. 6
of the Madras Hereditary Village-Offices Act,, 1895 (Madras
Act III of 1895), hereinafter called the Act, as void in so
far as it infringes the fundamental right of the petitioner
under Arts. 14 and 16 of the Constitution, and further asks
for an appropriate writ or direction quashing certain orders
passed by respondents 1 to 3 in favour of respondent No. 4
in the matter of the latter’s appointment as Village Munsif
of a newly constituted village called Peravalipalem. When
this petition first came up for hearing we directed a notice
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to go to other States of the Union inasmuch as the question
raised as to the constitutional validity of the law relating
to a hereditary village office was of a general nature and
might arise in relation to the existing laws in force in
other States. Except the State of Andhra Pradesh which has
entered appearance through its Advocate-General, none of the
other States have entered appearance. The Advocate General
of Andhra Pradesh has appeared for respondents 1 to 3, and
respondent 4 has been separately represented before us.
These respondents have contested the application and have
pleaded that s. 6 of the Act does not violate any
fundamental right, nor are the impugned orders of
respondents 1 to 3 invalid in law.
The short facts are these: Village Peravali in Tenali taluq
of the district of Guntur in the State of Andhra Pradesh was
originally comprised of a village of the same name and a
fairly large hamlet called Peravalipalem. The two were
divided by a big drainage channel. It is stated that for
purposes of village administration the villagers felt some
difficulties in the two being treated as one unit So the
villagers, particularly those of the hamlet, but in an
application to the Revenue authorities for constituting the
hamlet into a separate village. This application was re-
commended by the Tehsildar and was accepted by the Board of
Revenue and the State Government. By an order dated August
25, 1956, Peravali village was bifurcated and two villages
were constituted. The
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934
order was published in the District Gazette on October
115,1956, and was in these terms:
"The Board sanctions the bifurcation of Peravali village of
Tenali taluq, Guntur district, into two villages, viz., (1)
Peravali and (2) Peravalipalem along the boundary line shown
in the map submitted by the Collector of Guntur with his
letter Re. A. 4. 28150/55 dated 30th June, 1956. These
orders will come into effect from the date of publication in
the District Gazette.
2. The Board sanctions the following establishments on the
existing scale of pay for the two villages:
Peravali:-
1 Village Munsif.
1 Karnam.
1 Talayari.
3 Vettians.
Peravalipalem:-
1 Village Munsif.
1 Karnam.
1 Talayari.
1 Vettian."
It is convenient to read at this stage sub-s. (1) of s. 6 of
the Act under which the bifurcation was made:
"S. 6(1). In any local area in which this Act is in force
the Board of Revenue may subject to rules made in this
behalf under section 20, group or amalgamate any two or more
villages or portions thereof so as to form a single new
village or divide any village into two or more villages and,
thereupon, all hereditary village offices (of the classes
defined in section 3, clause (1), of this Act) in the
villages or portions of villages or village grouped,
amalgamated or divided as aforesaid, shall cease to exist I
and new offices, which shall also be hereditary shall the
created for the new village or villages. In choosing
persons to fill such new offices, the Collector shall select
the persons whom he may consider the best qualified from
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among the families of the last holders of the offices which
have been abolished."
935
On the division of the village into two villages, all the
hereditary village offices of the original village ceased to
exist under the aforesaid sub-section, and new offices were
created for the two villages. We are concerned in this case
with the appointment to the office of Village Munsif in the
newly constituted village of Peravalipalem. In accordance
with the provisions of sub-s. (1) of s. 6 and certain
Standing Orders of the Board of Revenue, the Revenue
Divisional Officer, Tenali, invited applications for the
post of Village Munsif of Peravalipalem. Eight applications
were made including one by the petitioner and another by
respondent 4. Respondent 4, be it noted, is a son of the
Village Munsif of the old village Peravali. By an order
dated October, 18, 1956, the Revenue Divisional Officer,
appointed the petitioner as Village Munsif of Peravalipalem.
From the order of the Revenue Divisional Officer, respondent
4 and some of the other unsuccessful applicants preferred
appeals to respondent 3, the Collector of Guntur. By an
order dated April 1, 1957, respondent 3 allowed the appeal
of respondent 4 and appointed him as Village Munsif of
Peravalipalem. In his order respondent 3 said: "Shri V.
Chandramowleswara Rao is qualified for the post. He is the
son of the present Village Munsif of Peravali and is,
therefore, heir to that post...... S. 6(1) of the Hereditary
Village Offices Act states that in choosing a person to fill
a new office of this kind the Collector shall select the
person whom he may consider best qualified from among the
family of the last holder of the office which has been
abolished. The Village Munsif’s post of the undivided
village of Peravali was abolished when the village was
divided and the new post of Village Munsif of Peravalipalem
has to be filled up from among the family of the previous
Village Munsif. The same instructions are contained in
Board’s Standing Order 148(2)."
The petitioner then carried an appeal from the order of
respondent 3 to the Board of Revenue. By an order dated
April 24, 1958, the Board dismissed the appeal and stated:
"According to s. 6, in choosing the person to fill
936
in a new office like this, the Collector shall select the
person whom he considers best qualified from among the
families of the last holders of the office, which have been
abolished. Here the office of the Village Munsif was
abolished and two new offices have been created. As the
last holder of the office was appointed to the new village,
Peravali, after bifurcation,, the Collector has appointed
the son of the last office holder as Village Munsif of
Peravalipalem as he is the nearest heir. The appellant
before the Board cannot claim any preference over the son of
the last office holder. ’The Board, therefore, holds that
the Collector’s order is in accordance with the law on the
subject. No interference, is, therefore, called for."
The petitioner then moved respondent, 1, but without
success. Thereafter, he filed the present writ petition.
The petitioner relies mainly on clauses (1) and (2) of Art.
16 of the Constitution. We may read those clauses here:
"Art. 16(1). There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the State:
(2) No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect
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of, any employment or office under the State."
On behalf of the petitioner it has been contended that (1)
the office of Village Munsif of Peravalipalem is an office
under the State, and (2) respondents 1 to 3 in passing their
orders in favour of respondent 4 expressly stated that they
proceeded on the basis of the hereditary principle laid down
in s. 6(1) of the Act and discriminated against him as a
citizen. on the ground of descent only. This
discrimination, it is argued violates the guarantee of equal
opportunity enshrined in Art. 16, cls. (1) and (2)- and s.
6(1) of the Act to the extent that it permits such
discrimination is void under Art. 13(1) of the Constitution.
The first question before us is if the office of Village
937
Munsif under the Act is an office under the State within the
meaning of cls. (1) and (2) of Art. 16 of the Constitution.
For determining that question it is necessary to examine the
scheme and various provisions of the Act. The long title
shows that it was an Act made to repeal Madras Regulation VI
of 1831 and for other purposes. The purposes mentioned in
the preamble are-"to provide more precisely for the
succession to certain hereditary village offices in the
State; for the hearing and disposal of claims to such
offices or the emoluments annexed thereto; for the
appointment of persons to hold such offices and the control
of ’the holders thereof, and for certain other purposes."
Section 3 of the Act refers to classes of village offices to
which the Act applies and Village Munsif is one of such
offices. Under s. 4 "emoluments" of the office means and
includes (i) lands; (ii) assignment of revenue payable in
respect of lands; (iii) fees in money or agricultural
produce; and (iv) money-salaries and all other kinds of
remuneration granted or continued in respect of, or annexed
to, any office by the State. Section 5 lays down that the
emoluments of village offices, whether such offices be or be
not hereditary, shall not be liable to be transferred or
encumbered in any manner whatsoever and it shall not be
lawful for any Court to attach or sell such emoluments or
any portion thereof Sub-s. (1) of s. 6 relates to the
grouping or division of villages; this sub-section we have
already read. Sub-s. (2) of s. 6 gives a right to the Board
of Revenue, subject to the approval of Government, to reduce
the number of village offices, and on such reduction the
Collector is empowered to dispense with the services of the
officers no longer required. Sub-s. (3) of6 which was
subsequently added in 1930 says thatminor shall not be
ineligible for selection by reasonof his minority only.
Section 7 states the circumstances in which the Collector
may, of his own motion or on complaint and after enquiry
suspend, remove or dismiss, etc., some of the village
officers mentioned in s. 3. A similar power of punishment is
also given to the Tehsildar. Under these provisions the
Collector may suspend, remove
938
or dismiss the Village Munsif. Section 10 lays down
certain rules which are to be observed in making
appointments to some of the village offices and these rules
lay down, among other things, the general qualifications
requisite for appointment to the offices in question. For
example, for the appointment to the office of Village Munsif
no person. is eligible unless he has attained the age of.
majority, is physically and mentally capable of discharging
the duties of the office, has qualified according to the
educational test prescribed for the office by the Board of
Revenue, has not been convicted by a Criminal Court of any
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offence which, in the opinion of the Collector, disqualifies
him for holding the office and has not been dismissed from
any post under the Government on any ground which the
Collector considers sufficient to disqualify him for holding
the office. One of the qualifications prescribed by s. 10
as it originally stood required that the applicant must be
of the male sex. This requirement was deleted by the
Adaptation (Amendment) Order of 1950, presumably to bring
the section into conformity with Arts. 15 and 16 of the
Constitution which prohibit discrimination on the ground of
sex. Sub-s. (2) of s. 10 says that the succession shall
devolve on a single heir according to the general custom and
rule of primogeniture governing succession to impartable
zamindar is in Southern India.’ Sub-s. (3) of s. 10 says
that where the next heir is not qualified, the Collector
shall appoint the person next in order of succession, who is
so qualified, and, in the absence of any such person in the
line of succession, may appoint any person duly qualified.
Sub-ss. (4), (5) and (6) of s. 10 deal with matters with
which we ore not directly concerned. Section 11 lays down
the rules to be observed in making appointments to certain
offices in proprietary estates and one of the rules is that
succession shall devolve in accordance with the law or
custom applicable to the office in question. Section 13 in
effect says that any person may sue before the Collector for
any of the village offices specified in s. 3 or for the
recovery of the emoluments of, any such office on the ground
that he is entitled to hold such office and
939
enjoy such emoluments. There are some provisos to the
section which lay down limitations on the right of suit.
With those limitations we are not concerned in the present
case. Section 14 lays down the period of limitation for
bringing a suit. Sections 15, 16 and 17 relate to the
transfer and trial of such suits and the decrees or orders
to be passed therein. Section 20 empowers the Board of
Revenue to make rules and s. 21 bars the jurisdiction of
Civil Courts. Section 23 provides for appeals.
The above gives in brief the scheme and provisions of the
Act. These provisions show, in our opinion, that the office
of Village Munsif under the Act is an office under the
State. The appointment is made by the Collector, the
emoluments are granted or continued by the State, the
Collector has disciplinary powers over the Village Munsif
including the power to remove, suspend or dismiss him, the
qualifications for appointment can be laid down by the Board
of Revenue-all these show that the office is not a private
office under a private employer but is an office under the
State. The nature of the duties to be performed by the
Village Munsif under different provisions of the law
empowering him in that behalf also shows that he holds a
public office. He not only aids in collecting the revenue
but exercises power of a magistrate and of a Civil Judge in
petty cases. He has also certain police duties as to
repressing and informing about crime, etc.
The learned Advocate-General appearing for respondents 1 to
3 has contended that the expression " office under the
State" in Art. 16 has no reference to an office like that of
the Village Munsif, which in its origin was a customary
village office later recognised and regulated by law. His
contention is that the expression has reference to a post in
a Civil ’Service and an ex-cadre post under a contract of
service,, as are referred to in Arts. 309 and 310 in Part
XIV of the Constitution relating to the Services under the
Union and the States. He has referred in support of his
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contention to Ilbert’s Supplement to the Government of India
Act, 1915, p. 261, where a similar
940
provision with regard to the Indian Civil Service has been
referred to as laying down that "no native of British
India............ is by reason only of his religion, place
of birth, descent, or colour, or any of them disabled from
holding any place, office or employment under His Majesty in
India" and has pointed out that the aforesaid provision
reproduced s. 87 of the Act of 1833 and historically the
office to which the provision related was an office or
employment in a Service directly under the East India
Company or the Crown. He also referred to s. 298 of the
Government of India Act, 1935, which said inter alia that
"no subject of His Majesty domiciled in India shall on
grounds only of religion, place of birth, descent, colour or
any of them be ineligible for office under the Crown in
India." The argument’ of the learned Advocate General is
that Art. 16 embodies the same principle as inspired the
earlier provisions referred to above, and like the earlier
provisions it should be confined to an office or post in an
organised public Service or an excadre post under a contract
of service directly under the Union or the State. He has
further suggested that the deletion of the requirement as to
sex in s. 10 of the Act was by reason of Art. 15 and not
Art. 16 of the Constitution. The argument is plausible, but
on a careful consideration we are unable to accept it as
correct. Even if we assume for the purpose of argument that
Arts. 309 and 310 and other Articles in Chapter 1, Part XIV,
of the Constitution relate only to an organised public
Service like the Indian Administrative Service, etc., and
ex-cadre posts under a direct contract of service which have
not yet been incorporated into a Service, we do not think
that the scope and effect of cls. (1) and (2) of Art. 16 can
be out down by reference to the provisions in the Services
Chapter of the Constitution.
Article 14 enshrines the fundamental right of equality
before the law or the equal protection of the laws within
the territory of India. It is available to all,
irrespective of whether the person claiming it is a citizen
or not. Article 15 prohibits discrimination on some special
grounds-religion, race, caste, sex, place
941
of birth or any of them. It is available to citizens only,
but is not restricted to any employment or office under the
State. Article 16, cl. (1), guarantees equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the State; and
el. (2) prohibits discrimination on certain grounds in
respect of any such employment or appointment. It would
thus appear that Art. 14 guarantees the general right of
equality; Arts. 15 and 16 are instances of the same right in
favour of citizens in some special circumstances. Article
15 is more general than Art. 16, the latter being confined
to matters relating to employment or appointment to any
office under the State. It is also worthy of note that Art.
15 does not mention ’descent’ as one of the prohibited
grounds of discrimination, whereas Art. 16 does. We do not
see any reason why the full ambit of the fundamental right
guaranteed by Art. 16 in the matter of employment or
appointment to any office under the State should be cut down
by a reference to the provisions in Part XIV of the
Constitution which relate to Services or to provisions in
the earlier Constitution Acts relating to the same subject.
These Service provisions do not enshrine any fundamental
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right of citizens; they relate to recruitment, conditions
and tenure of service of persons, citizens or otherwise,
appointed to a Civil Service or to posts in connection with
the affairs of the Union or any State. The word ’State’, be
it noted, has a different connotation in Part III relating
to Fundamental Rights: it includes the Government and
Parliament of India, the Government and Legislature of each
of the States and all local or other authorities within the
territory of India, etc. Therefore, the scope and ambit of
the Service provisions are to a large extent distinct and
different from the scope and ambit of the fundamental right
guaranteeing to all citizens an equality of opportunity in
matters of public employment. The preamble to, the
Constitution states that one of its objects is to secure to
all citizens equality of status and opportunity; Art. 16
gives equality of opportunity in matters
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942
of public employment. We think that it would be wrong in
principle to cut down the amplitude of a fundamental right
by reference to provisions which have an altogether
different scope and purpose. Article 13 of the Constitution
lays down inter alia that all laws in force in the territory
of India immediately before the commencement of the
Constitution, in so far as they are inconsistent with
fundamental rights, shall to the extent of the inconsistency
be void. In that Article ’law’ includes custom or usage
having the force of law. Therefore, even if there was a
custom which has been recognised by law with regard to a
hereditary village office, that custom must yield to a
fundamental right. Our attention has also been drawn to cl.
(4) of Art. 16 which enables the State to. make provision
for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under
the State. The argument is that this clause refers to
appointments or posts and further talks of inadequate
representation in the services, and the learned Advocate-
General has sought to restrict the scope of cls. (1) and (2)
of Art. 16 by reason of the provisions in el. (4). We are
not concerned in this case with the true scope and effect of
cl. (4) and we express no opinion with regard to it. All
that we say is that the expression ’office under the State’
in cls. (1) and (2) of Art. 16 must be given its natural
meaning.
We are unable, therefore, to accept the argument of the
learned Advocate-General that the expression " office under
the State’ in Art. 16 has a restricted connotation and does
not include a, village office like that of the Village
Munsif. In M. Ramappa v. Sangappa and Others (1) the
question arose whether certain village offices governed by
the Mysore Villages Offices Act, 1908, were offices of
profit under the Government of any State within the meaning
of Art. 191 of the Constitution. This Court held that the
offices were offices of profit under the Government and
said.
"An office has to be held under someone for it is impossible
to conceive of an office held under no one.
(1) [1959] S.C.R, 167
943
The appointment being by the Government, the office to which
it is made must be held under it, for there is no one else
under whom it can be held. The learned Advocate said that
the office was held under the village community. But such,
a thing is an impossibility for village communities have
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since a very long time, ceased to have any corporate
existence."
Learned Counsel for respondent 4 has presented a somewhat
different argument on this question. He has submitted that
the office of Village Munsif is not merely an office
simpliciter; but it is an office cum property. His argument
is that Art. 16 does not apply to a hereditary village
office because a person entitled to it under the Act has a
pre-existing right to the office and its emoluments, which
he can enforce by a suit. We now proceed to consider this
argument.
Learned Counsel for respondent 4 has relied on the decision
of this Court in Angurbala Mullick v. Debabrata Mullick (1)
where it was held that in the conception of shebaiti under
Hindu law, both the elements of office and property, of
duties and personal interest, are mixed up and blended
together; and one of the elements cannot be detached from
the other. He has argued that on the same analogy the
office of a village Munsif must be held to be an office cum
property. We do not think that the analogy holds. As this
Court pointed out in Kalipada Chakraborti and Another v.
Palani Bala Devi and Others (2) shebaitship is property of a
peculiar and anomalous character and it is difficult to say
that it comes under the category of immovable property as it
is known to law. As to the office of a Village Munsif under
the Act, the provisions of the Act itself and a long line of
decisions make it quite clear that what go with the office
are its emoluments, whether in the shape of land, assignment
of revenue, agricultural produce, money, salary or any other
kind of remuneration. These emoluments are granted or
continued in respect of, or annexed to, the office by the
State. This is made clear by s. 4 of the Act. Apart from
the office there is no right to the emoluments. In other
words, when a person is appoint-
(1) [1951] S.C.R. 1125.
(2) [1953] S.C.R. 503.
944
ed to be a "Village Munsif" it is an appointment to a an
office by the State to be remunerated either by the use of
land or by money, salary, etc.; it is not the case of a
grant of land burdened with service, a distinction which was
explained by the Privy Council in Lakhamgouda Basavprabhu
Sardesai v. Baswantrao and Others (1). In Venkata v. Rama
(2) where the question for decision was the effect of the
enfranchisement of lands forming the emoluments of the
hereditary village office of Karnam, it was pointed out:
"Emoluments for the discharge of the duties of the office
were provided either in the shape of land exempt from
revenue or subject to a lighter assessment, or of fees in
grain or cash, or of both land and fees.
.................................................
When the emoluments consisted of land, the land did not
became the family property of the person appointed to the
office, whether in virtue of an hereditary claim to the
office or otherwise. It was an appanage of the office
inalienable by the office holder and designed to be the
emolument of the officer into whose hands soever the office
might pass. If the Revenue authorities thought fit to
disregard the claim of a person who asserted an hereditary
right to the office and conferred it on a stranger, the
person appointed to the office at once become entitled to
the lands which constituted its emolument."
The same view was re-affirmed in, Musti Venkata Jagannada
Sharma v. Musti Veerabhadrayya (3) where the history of the
office of Karnam was examined and it was observed that the
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"Karnam of the village occupies his office not by hereditary
or family right, but as personal appointee, though in
certain cases that appointment is primarily exercised in
favour of a suitable person who is a member of a particular
family." This latter decision was considered by a Full Bench
of the Madras High Court in Manubolu Ranga Reddi v. Maram
Reddi Dasaradharami. Reddi (4)
(1) A.I.R. 1931 P.C. 157.
(3) A.I.R. 1922 P.C. 96.
(2) I.L.R. 8 ’Mad. 249.
(4) I.L.R. [1938] Mad. 249.
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and it was pointed out that their Lordships of the Privy
Council, though they indicated the nature of the right which
the Karnam had, did not consider the’ question whether on
the creation of an office under s. 6(1), the members of the
family of the last holder of the abolished office had the
right to compel the Collector to carry out the duty cast
upon him by the section. It was held that s. 6(1) creates a
right in the family which can be enforced by suit. Learned
Counsel for respondent 4 has relied on this decision. It is
worthy of note, however, that the decision was given on the
footing that s. 6(1) was valid and mandatory in character.
No question arose or could at that time arise of the
contravention of a fundamental right guaranteed by the
Constitution, by_ the hereditary principle embodied in s.
6(1) of the Act. The decision proceeded on the footing that
the Act recognised a ’right vested in a family’ to the
office in question and contained provisions to enforce that
right. It did not proceed upon the footing that the family
had a right to the property in the shape of emoluments,
independent or irrespective of the office. In other words,
the decision cannot be relied upon in support of the
contention that a hereditary village office is like a
shebaiti, that is, office cum property. That was not the
ratio of the decision. The ratio simply was this that the
Act bad recognised the right vested in a family to the
office in question. That decision cannot assist respondent
4 in support of his contention that Art. 16, cls. (1) and
(2), do not apply to the office, even though the office is
an office under the State. In Ramachandurani purshotham v.
Ramachandurani Venkatappa and Another (1) the question was
whether the office of Karnam was ’property’ within the
meaning of Art. 19(1)(f) of the Constitution. It was held
that it was not property within the meaning of that Article.
The same view was expressed in Pasala Rama Rao v. Board of
Revenue (2) where if was observed that the right to succeed
to a hereditary office was not property and the relation
back of an adopted son’s rights was only with regard to
property.
(1) A.I.R. 1952 Mad. 150.
(2) A.I.R. 1954 Mad. 483.
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This view was not accepted in Chandra Chowdary v. The Board
of Revenue (1) where it was observed that the fact that the
adoption was posthumous did not make any difference and the
adoption being to the last office holder, the adopted son
must be deemed to have been in existence at the time of the
death of the male holder and had the right to succeed to the
office. It was further observed that the office of a
Village Munsif was ’property’ so as to attract the operation
of the rule that the adoption related back to the date of
the death of the last male holder. We are not concerned in
this case with the doctrine of relation back in the matter
of a posthumous adoption. The simple question before us is
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whether the office, though it is an office under the State,
is of such a nature that cls. (1) and (2) of Art. 16 of the
Constitution are not attracted to it. We are of the view
that there is nothing in the nature of the office which
takes it out of the ambit of cls. (1) and (2) of Art. 16 of
the Constitution. An office has its emoluments, and it
would be wrong to hold that though the office is an office
under the State, it is not within the ambit of Art. 16
because at a time prior to the Constitution, the law
recognised a custom by which there was a preferential right
to the office in the members of a particular family. The
real question is-is that custom which is recognised and
regulated by the Act consistent with the fundamental right
guaranteed by Art. 16? We do not agree with learned Counsel
for respondent 4 that the family had: any pre-existing right
to property in the shape of the emoluments of the office,
independent or irrespective of the office. If there was no
such pre-existing right to property apart from the office,
then the answer must clearly be that Art. 16 applies and s.
6(1) of the Act in so far as it makes a discrimination on
the ground of descent only, is violative of the fundamental
right of the petitioner.
There can be no doubt that s. 6(1) of the Act does embody a
principle of discrimination on the ground of descent only.
It says that in choosing the persons to fill the new
offices, the Collector shall select the persons whom he may
consider the best qualified from
(1) A.I.R. 1959 Andhra Pradesh 343.
947
among the families of the last holders of the offices which
have been abolished. This, in our opinion, is
discrimination on the ground of descent only and is in
contravention of Art. 16(2) of the Constitution.
Learned Counsel for respondent 4 has also submitted that the
petitioner cannot be permitted to assert the invalidity of
s. 6(1) of the Act when he himself made an application for
appointment as Village Munsif under the Act. He has drawn
our attention to the decision in Bapatla Venkata Subba Rao
v, Sikharam Ramakrishna Rao(1). That was a case where the
appellant was appointed as a hereditary Karnam under the Act
and but for the Act, he would not have had any claim to be
appointed to the office of Karnam. It was held that he
could not be permitted to contend for the first time in
appeal that the very Act but for which he would not have had
any right to the office, was unconstitutional. Apart from
the question whether a fundamental right can be waived, a
question which does not fall for consideration in this case,
it is clear to us that the facts here are entirely
different. The petitioner had the right to make an
application for the new village office and he was accepted
by the Revenue Divisional Officer. Respondents 1 to 3,
however, passed orders adverse to him and in favour of
respondent 4, :acting on the principle of discrimination on
the ground of descent only as embodied in s. 6(1) of the
Act. It is, we think, open to the petitioner to say that s.
6(1) of the Act in so far as it violates his fundamental
right guaranteed under Art. 16 of the Constitution is void
and his application for appointment must, therefore, be
decided on merits.
Finally, we must notice one other argument advanced by the
learned Advocate-General on behalf of respondents 1 to 3.
The argument is based on the distinction between Arts. 15
and 16. We have said earlier that Art. 15 is, in one
respect, more general than Art. 16 because its operation is
not restricted to public employment; it operates in the
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entire field of State discrimination. But in another sense,
with
(1) A.I.R. 1958 Andhra Pradesh 322.
948
regard to the grounds of discrimination, it is perhaps less
wide than Art. 16, because it does not include , descent’
amongst the grounds of discrimination. The argument before
us is that the provision impugned in this case must be
tested in the light of Art. 15 and not Art. 16. It is
submitted by the learned Advocate General that the larger
variety of grounds mentioned in Art. 16 should lead us to
the conclusion that Art. 16 does not apply to offices where
the law recognises a right based on descent. We consider
that such an argument assumes as correct the very point
which is disputed. If we assume that Art. 16 does not
apply, then the question itself is decided. But why should
we make that assumptions If the office in question is an
office under the State, then Art. 16 in terms applies;
therefore, the question is whether the office of Village
Munsif is an office under the State. We have held that it
is. It is perhaps necessary to point out here that cl. (5)
of Art. 16 shows that the Article does not bear the
restricted meaning which the learned Advocate-General has
canvassed for; because an incumbent of an office in
connexion with the affairs of any religious or
denominational institution need not necessarily be a member
of the Civil Service.
For the reasons given above, we allow the petition. The
orders of respondents 1 to 3 in respect of the appointment
to the post of Village Munsif of Peravalipalem in favour of
respondent 4 are set aside and we direct that the
application of the petitioner for the said office be now
considered on merits by the Revenue authorities concerned on
the footing that s. 6(1) of the Act in so far as it
infringes the fundamental right of the citizens of India.
under Art. 16 of the Constitution is void. The petitioner
will be entitled to his costs of the hearing in this Court.
Petition allowed.
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