Gazula Dasaratha Rama Rao Vs. The
State of Andhra Pradesh & Ors  INSC 270 (6 December 1960)
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)
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).
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 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, 
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.
ORIGINAL JURISDICTION: Petition No. 133 of
1959. Petition under Art. 32 of the Constitution of India for enforcement of
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 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
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 118 934 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.
Peravalipalem:- 1 Village Munsif.
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 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
"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
"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 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 that minor shall not
be ineligible for selection by reason of 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 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
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 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 119 942 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)  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 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)
 S.C.R. 1125.
(2)  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 "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.  Mad. 249.
945 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.
946 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 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
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
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 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.