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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 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.               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 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)  [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. 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

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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. 949