# GAZULA DASARATHA RAMA RAO v. THE STATE OF ANDHRA PR.ADESH & OTHERS

- **Citation:** [1961] 2 S.C.R. 931
- **Court:** Supreme Court of India
- **Decided:** 1959-12-23
- **Bench:** S. K. Das, M. Hidayatullah, K. c. DAS GUPTA, J.C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gazula-dasaratha-rama-rao-v-the-state-of-andhra-pr-adesh-others-1922
- **Pages:** 18

## Headnote

Village Offices-Village Munsij-Enactment providing for
selection of post according to heredity-Constitutionality-Madras
Hereditary V illage-Offtces Act, I895 (3 of I895), s. 6(1)-Constitution of India, Art, r6(I}(z).
Yillage 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 w horn 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
Gajendragadlrar],
932
SUPREME COURT REPORTS
[1961)
z96o
respo.ndent 4 which expressly stated that they proceeded on the
-
basis of the hereditary principle laid down ins. 6(1) of the Act,
Garula Dasa,atha discriminated against him as a citizen on the ground of descent
Rama Rao
only an.d violated the guarantee of equal opportunity enshrined
v.
in Art. r6 of the Constitution of India, and (2) thats. 6(r) of the
Th• State of
Act, to the extent that it permitted such discrimination was
Andhra Pradesh void under Art. 13(1) of the Constitution. The plea of the
& Others
respondents was (1) that the expression "office under the State"
in Art. 16 had no reference to an office hke that of the Village
Munsif whicl/ 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: (r) 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 others, [1959] S. C.R. n67,
referred to.
(2) that a person entitled to an office under s. 6(r) 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. r6 applied; and,
(3) that s. 6(r) 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 Fundamental Rights.
A. V. Viswanatha Sastri and G. Gopalakrishnan, for
the petitioner.
D. Narasa Raju, AdiJocate-General of Andhra Pradesh, D. Venkatappayya Sastri and T. ¥· Sen, for
respondents Nos. 1-3.
T. V. R. Tatachari, for respondent No. 4.
1960. December 6.
The Judgment of the Court
was delivered by
s. K. Das J.
S. K. DAS, J.-This is 11. writ petition under Art. 32
of the Constitution. Gazula Dasaratha Rama. Rao is
the petitioner. The respondents a.re ( 1) the State of
Andhra

## Text

_Characters 0–39,955 of 40,831. This is a partial read: ask again with offset=39955 for what follows._

2 S.C.R. SUPREME COURT REPORTS
931
under appeal has already been filed by the respon1960
dents before the High Court on December 23, 1959,
Jagat Dhish
the High Court should now proceed to hear the appe,al
Bhargava
on the merits and deal with it in accordance with law.
v.
In the circumstances of this case we make no order as
Jawahar Lal
to costs.
Bhartava b Others
Appeal dismissed.
GAZULA DASARATHA RAMA RAO
v.
THE STATE OF ANDHRA PR.ADESH & OTHERS
(S. K. DAS, M. HIDAYATULLAH, K. c. DAS GUPTA,
J.C. SHAH and N. RAJAGOPALA AYYANGAR, JJ.)
Village Offices-Village Munsij-Enactment providing for
selection of post according to heredity-Constitutionality-Madras
Hereditary V illage-Offtces Act, I895 (3 of I895), s. 6(1)-Constitution of India, Art, r6(I}(z).
Yillage 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 w horn 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
Gajendragadlrar],
932
SUPREME COURT REPORTS
[1961)
z96o
respo.ndent 4 which expressly stated that they proceeded on the
-
basis of the hereditary principle laid down ins. 6(1) of the Act,
Garula Dasa,atha discriminated against him as a citizen on the ground of descent
Rama Rao
only an.d violated the guarantee of equal opportunity enshrined
v.
in Art. r6 of the Constitution of India, and (2) thats. 6(r) of the
Th• State of
Act, to the extent that it permitted such discrimination was
Andhra Pradesh void under Art. 13(1) of the Constitution. The plea of the
& Others
respondents was (1) that the expression "office under the State"
in Art. 16 had no reference to an office hke that of the Village
Munsif whicl/ 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: (r) 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 others, [1959] S. C.R. n67,
referred to.
(2) that a person entitled to an office under s. 6(r) 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. r6 applied; and,
(3) that s. 6(r) 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 Fundamental Rights.
A. V. Viswanatha Sastri and G. Gopalakrishnan, for
the petitioner.
D. Narasa Raju, AdiJocate-General of Andhra Pradesh, D. Venkatappayya Sastri and T. ¥· Sen, for
respondents Nos. 1-3.
T. V. R. Tatachari, for respondent No. 4.
1960. December 6.
The Judgment of the Court
was delivered by
s. K. Das J.
S. K. DAS, J.-This is 11. writ petition under Art. 32
of the Constitution. Gazula Dasaratha Rama. Rao is
the petitioner. The respondents a.re ( 1) the State of
Andhra Pradesh, (2) the Boa.rd of Revenue, Andhra
Pradesh, (3) the Collector of Guntur in Andhra Pradesh a.nd (4) Vishnu Molakala. Chandramowleshwara
2 S.C.R. SUPREME COURT REPORTS
933
Rao. The petitioner prays that this Court must dez96o
clare s. 6 of the MadrasfHeredithary Yillfage-Officeds Act, Gazula Dasaratha
1895 (Madras Act III o 1895), erema ter calle
the·
Rama Rao
Act, as void in so far as it infringes the fundamental
v.
right of the petitioner under Arts. 14 and 16 of the
The State of
Constitution, and further asks for an appropriate writ Andhra Pradesh
or direction quashing certain orders passed by respon-
& Others
dents 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 AdvocateGeneral 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, put in an application
to the Revenue authorities for constituting the .hamlet into a separate village. This application was recommended 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
us
S. K. Das].
934
SUPREME COURT REPORTS
[1961]
196v
order was published in the District Gazette on October
G
I -
h l5, 1956, and was in these terms:
"'" a Dasarat a
"Th B
d
t"
th b"fu
t"
f p
Ii
Rama Rao
e
oar sane ions
e
l
rca ion o
erava
v.
village of Tenali taluq, Guntur district, into two villa.-
Th• State of
ges, viz., (1) Peravali and (2) Peravalipalem along the
Andhra Pradesh boundary line shown in the map submitted by the
0- Others
Collector of Guntur with his letter Re. A. 4. 28150/55
dated 30th June, 1956. These orders will come into
s. K. Das].
f
bl
·
·
h
effect from the date o pu icat10n m t e 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 V ettian."
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 aivide 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 and new offices,
which shall also be hereditary shall be 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."
I
f.
I
'".
--\
\
-1
-·
( \
2 S.C.R. SUPREME COURT REPORTS
935
On the division of the village into two villages,
' 960
all the hereditary village offices of the original vil- Gazula -;;;saratha
lage ceased to exist under the aforesaid sub-secRama Rao
tion, and new offices were created for the two
v.
villages.
We are concerned in this case with the
The State of
appointment to the office of Villa0cre Munsif in the Andhra Pradesh
& Othe1·s
newly constituted village of Peravalipalem. In accordance with the provisions of sub-s. (1) of s. 6 and
s. K. Das .f.
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 1\fonsif of Peravalipalem. In his order
respondent 3 said: "Shri V. Chandram.owleswara 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
SUPREME COURT REPORTS
[1961]
1960
in a new office like this, the Collect.or shall select the
'
-
person whom he considers best qualified from among
Gazula Dasaratha the families of the last holders of the office, which
Rama Rao
h
b
b 1. h
.
v.
ave een a ors ed. Here the office of the Village
The state of
Munsif was abolished and two new offices have been
Andhra Pradesh created. As the last holder of the office was appointed
& Others
to the new village, Peravali, after bifurcation, the
Collector has appointed the son of the last office holder
5· K. Das J.
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 Collec.
tor's order is in accordance with the law on the sub.
ject. No interference, is, therefore, called for."
The petitioner then moved respondent l, 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 a ppointmeut to any office under the State:
(2) No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or I
any of them, be ineligible for, or discriminated against
.
in respect of, any employment or office under tho
State.''
On behalf of the petitioner it has been contended that
(1) the office of Village Munsif of Peravalipalem is an
1 '
office under the State, and (2) respondents l 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, els. (1) and (2); ands. 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
I
•
2 S.C.R. SUPREME COURT REPORTS
937
Munsif under the Act is an office under the State with1960 ·
in the meaning of els. (1) and (2) of Art. 16 of the
-
Constitution. For determining that question it is GaziR•la DaRsaratha
.
h
h
d
.
.
ama
ao
necessary to examme t e sc eme an
various prov1v.
sions of the Act. The long title shows that it was an
The state of
Act made to repeal Madras Regulation VI of 1831 and Andhra Pradesh
for other purposes. The purposes mentioned in the
& Others
pren.mble are-"to provide more precisely for the
succession to certain hereditary village offices in the
s. K. Das f.
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 village$; 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) of s. 6 which was subsequently added in 1930 says that a 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
SUPREME COURT REPORTS
[1961]
'960
or dismiss the Village Munsif. Section 10 lays down
Gazula Daoaratha certain rules which are to be observed in making
·
Rama Rao
appointments to some of the village offices and these
v.
rules lay down, among other things, the general
Th• State of
qualifications requisite for appointment to the offices
Andhra Pradesh in question. For example, for the appointment to the
& Othe,.-s
f
office of Village Munsi no person is eligible unless he
s. K. Das .I.
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
bys. 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 impartible zamindaris
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 are 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
I
• I
. '
I •
'
2 S.C.R. SUPREME COURT REPORTS
939
enjoy such emoluments. There are some provisos to
i96o
the section which lay down limitations on the right ofG
1 D
ti
h
1. .
.
t
d uzu a
asara 1a
suit. With t ose 1m1tat10ns we are no concerne
Rama llao
in the present case. Section 14 lays down the period
v.
of limitation for bringing a suit. Sections 15, 16 and
n.e State of
17 relate to the transfer and trial of such suits and Andhra Pradesh
the decrees or orders to be passed therein. Section 20
o;, Otlms
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 provisiom
of the Act. These provisions show, in our opinion,
that the office of Village M:unsif 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 M:unsif 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 M:unsifunder 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 res~
pondents 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 M:unsif, 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
S. K. Das].
940
SUPREME COURT REPORTS
[1961]
'960
provision with regard to the Indian Civil Service has
Gazula Dasarntha been referred to as laying down that "no native of
·Rama Rao
British India ........... .is by reason only of his religion,
v.
place of birth, descent, or colour, or any of them
The State of
disabled from holding any place, office or employment
Andhta Pradesh under His Majesty in India" and has pointed out that
&· Others
the aforesaid provision reproduced s. 87 of the Act of
s. K. Das J.
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 AdvocateGeneral is that Art. 16 embodies the same principle aB
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 ins. 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 I, 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 els. (1) and (2) of Art. 16 can be cut 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 eqlial 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
.,
I
,#
2 S.C.R. SUPREME COURT REPORTS
941
of birth or any of them. It is available to citizens
x96o
only, but is not restricted to any employment or office G
1 -D
·th
.
.
azu a
asara a
under the State. Artwle 16, cl. (1), guarantees equality
Rama Rao
of opportunity for all citizens in matters relating to
v.
employment or appointment to any office under the
The State of
State; and cl. (2) prohibits discrimination on certain Andhra Pradesh
grounds in respect of any such employment or appointQ;. Others
ment. It would thus appear that Art. 14 guarantees
s. K~s J.
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 differ-ant 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
ug
942
SUPREME COURT REPORTS
[1961]
'960
of public employment. We think that it would be
Garnla JJ;;saratha w ong in principle to cut down the amplitude of a
Rama Rao
tundamental right by reference to provisions which
v.
htve an altogether different scope and purpose.
The State of
Article 13 of the Constitution lays down inter alia that
Andht'a Pradesh
c;. Others
all laws in force in the territory of India immediately
before the commencement of the Constitution, in so
s. K. Das J.
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 re~ard 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 els. (1) and (2) of Art. 16 by reason of the
provisions in cl. (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 els. (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) [19~9] S.C.R. 1167
'"
••
I
I ,
••
2 S.C.R. SUPREME COURT REPORTS
943
The appointment being by the Government, the office
z96o
to which it is made must be held under it, for there isG
1 D
h
.
b ·
ld
Th l
d azu a
asaratha
no one else under w om it can e he .
e earne
Rama Rao
Advocate said that the office was held under the
v.
village community. But such a thing is an impossibiThe Stats of
lity for village communities have since a very long AndMa Pradesh
time, ceased to have any corporate existence."
a;. Others
Learned Counsel for respondent 4 has presented a
s. K. Das J.
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 her~ditary 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 .llfulliok (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 Ohakraborti and
Another v. Palani Bala Devi and Others (9) 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-
(I) [19s1] S.C.R. 112s,
(2) [I9S3] S.C,R. 503.
944
SUPREME COURT REPORTS
[1961)
r96o
ed to be a "Village Munsif" it is an appointment to
G
I
D
th an office by the State to be remunerated either by the
· '
azu a
astJf'a
a
.
•
Rama Rao
use of land or by money, salary, etc.; 1t 1s not the case
v
of a grant of land burdened with service, a distinction
The State of
which was explained by the Privy Council in LakhamAndhra Pradesh gouda
Basavprabhu
Sardesai v. Baswantrao and
~ Others
Others('). In Venkata v. Rama(') where the question
s. K. Das 1. 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 lightel'. assessment, or of fees in grain or cash, or of both land and
fees •
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
When the emoluments consisted of land, the land
did not become the family property of the person
appointed to the office, whether in virtue of an here-
:litary 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 offica 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 (') where
the history of the office of Karna.m 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(')
(1) A.I.R. 1931 P.C. 157.
(3) A.I.R. 1022 P.C. g6,
(2) I,L.R. 8 Mad. 249.
(4) I.L.R. [1938] Mad. 249.
'
\•
.,
\ .
2 S.C.R. SUPREME COURT REPORTS
945
and it was pointed out that their Lordships of the
I960
Privy Council, though they indicated the nature ofG
1. -D-·
th
h
• h
h' h h K
h d d"d
'd
th
azu a
asara a
t e rig t w IC t e
arnam a , 1 not cons1 er
e
Rama Rao
question whether on the creation of an office under
v.
s. 6(1), the members of the family of the last holder
The State of
of the abolished office had the right to compel the Andhra Pradesh
Collector to carry out the duty cast upon him by the
"'° Others
section. It was held thats. 6(1) creates a right in the
s. I<. Das J.
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 thats. 6(1) was valid and mandatory in character. No question arose or could at
that t.ime arise of the contravention of a fundamental
right guaranteea 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 had· 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, els. (1) and (2), do not apply
to the office, even though the office is an office under
the State. In Ramachamlurani Purshotham v. RamacharuZurani Venkatappa and Another (1) the question
was whether the office of Karnam was 'property'
within-the meaning of Art. 19(l)(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 it 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.
(I) A.I.R. 1952 Mad. 150.
(z) A.I.R. 1954 Mad, 483,
946
SUPREME COURT REPORTS
[1961)
zg6o
This view was not accepted in Chandra Ohowdary v.
I
D
h The Board of Revenue(') where it was observed that
G~zu a
asaral a
i!.
,
,
Rama Rao
the iact th.at the adoption was J?Osth11;mous did not
•.
make any difference and the adoption bemg to the last
The State of
office holder, the adopted son must be deemed to have
Andhra Pradesh been in existence at the time of the death of the male
'"' Others
holder and had the right to succeed to the office. It
-
•
was further observed that the office of a Village
s. K. Das f.
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 els. (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 els. (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 thats. 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 cOn!iider the best qualified from
(I) A.I.R. 1959 Andhra Pradesh 343-
-1
• I
. '
·-
•
\ r
2 s.c.R. SUPREME COURT REPORTS
947
among the families of the last holders of the offices
1960
which have been abolished. This, in our opinion, is G
1 -D
th
di
. .
.
h
d f d
l
d . .
azu a
asara a
scr1mmat1on on t e groun o
escent on y an ism
Rama Rao
contravention of Art. 16(2) of the Constitution.
v.
Learned CounseJ for respondent 4 has also submitThe State of
ted that the petitioner cannot be permitted to assert A ndhra Pradesh
the invalidity of s. 6(1) of the Act when he himself
& Others
made an application for appointment as Village
s. K. Das 1.
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. A part 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
applicatfon 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 thats. 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 ad vanced 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
(I) A.I.R. 1958 Andhra Pradesh 32a.
948
SUPREME COURT REPORTS
(1961)
z96o
regard to the grounds of discrimination, it is perhaps
G
I -Dth less wide than Art. 16, because it does not include
azu a
asara a 'd
,
h
d
f d"
· ·
·
Th
Rama Rao
escent amongst t e groun s o
rncr1mmat10n.
e
v.
argument before us is that the provision impugned in
The State of
this case must be tested in the light of Art. 15 and
Andhra Pradesh not Art. 16. It is submitted by the learned Advocate-
& Others
Generaf that the larger variety of grounds mentioned
in Art. 16 should lead us to the conclusion that Art.
S. K. Das].
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 assumption? If the office in q.uestion 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.