Gazula Dasaratha Rama Rao vs The State Of Andhra Pradesh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 133 of 1959

Decision Date: 6 December, 1960

Coram: S.K. Das, M. Hidayatullah, K.C. Das Gupta, J.C. Shah, N. Rajagopala Ayyangar

In the matter of Gazula Dasaratha Rama Rao versus The State of Andhra Pradesh and others, the Supreme Court of India delivered its judgment on 6 December 1960. The judgment was authored by Justice S.K. Das, and the bench comprised Justices S.K. Das, M. Hidayatullah, K.C. Das Gupta, J.C. Shah and N. Rajagopala Ayyangar. The petitioner, Gazula Dasaratha Rama Rao, challenged the respondents, the State of Andhra Pradesh and other parties. The case is reported in the 1961 volume of the All India Reporter at page 564 and in the Supreme Court Reporter (Second Series) at citation 931. Subsequent citations of the decision appear in several later reports, including R 1966 SC 1571, RF 1972 SC 1586, R 1977 SC 876, RF 1982 SC 1107, RF 1985 SC 724, RF 1987 SC 1015, as well as references to the Village Offices—Village Munsif—Act, 1895 (Madras Hereditary Village-Offices Act), particularly section 6(1), and to Article 16(1) and (2) of the Constitution of India.

The factual background involved a village named P in the State of Andhra Pradesh, which originally consisted of the main settlement and a substantial hamlet known as PP. Because administering the two habitations as a single unit proved difficult, the Board of Revenue authorized the bifurcation of the original village into two distinct villages, namely P and PP. Upon this division, all hereditary village offices that had existed in the undivided village ceased to operate under the provisions of section 6(1) of the Madras Hereditary Village-Offices Act, 1895, and fresh offices were created for each of the newly formed villages. Section 6(1) expressly provided that, when selecting persons to fill the newly created offices, the Collector should choose those he considered best qualified from among the families of the last holders of the abolished offices.

Following the issuance of the vacancy for the post of Village Munsif of the newly created village PP, the Revenue authorities invited applications. The petitioner submitted an application along with several other candidates. However, the authorities appointed respondent 4, who was the son of the former Village Munsif of the pre‑bifurcation village P. The appointment was justified on the basis that, under section 6(1) of the Act, the last holder of the office had been transferred to the new village P after the bifurcation, and consequently his nearest heir, respondent 4, possessed a preferential claim to the Village Munsif position in PP. The petitioner contested the legality of this appointment on two grounds. First, he argued that the office of Village Munsif constituted an office under the State, and that the order favoring respondent 4, which explicitly relied on the hereditary principle prescribed in section 6(1), discriminated against him solely on the basis of descent, thereby infringing the constitutional guarantee of equal opportunity contained in Article 16 of the Constitution of India. Second, the petitioner contended that the portion of section 6(1) permitting such hereditary discrimination was void under Article 13(1) of the Constitution. The petitioner's plea was consequently filed before the Court.

The respondents argued two points. First, they contended that the phrase “office under the State” in Article 16 of the Constitution did not refer to an office such as the Village Munsif, because that office originated as a customary village position that was later recognised and regulated by statute. Second, they maintained that Article 16 was inapplicable to a hereditary office, asserting that a person who obtained the office under the Act possessed a pre‑existing right to both the office and its emoluments, a right that could be enforced through ordinary suit.

In the Court’s decision, three conclusions were reached. The Court held that a village office like that of the Village Munsif qualified as an “office under the State” within the meaning of Article 16 of the Constitution of India, referring to the precedent set in M. Ramappa v. Sangappa and others, [1959] S.C.R. 167. The Court further observed that a person who was entitled to an office under section 6(1) of the Madras Hereditary Village‑Offices Act, 1895, did not acquire any pre‑existing property right in the form of the office’s emoluments that existed independently of the office itself; therefore, the provisions of Article 16 applied to such an office. Finally, the Court declared that section 6(1) of the Act embodied a principle of discrimination solely on the basis of descent, which directly contravened Article 16(2) of the Constitution.

The judgment originated in the original jurisdiction under Petition No. 133 of 1959, filed under Article 32 of the Constitution for the enforcement of fundamental rights. Counsel for the petitioner were A. V. Viswanatha Sastri and G. Gopalakrishnan. Counsel for respondents 1 to 3 were the Advocate‑General of Andhra Pradesh, D. Narasa Raju, together with D. Venkatappayya Sastri and T. M. Sen. Counsel for respondent 4 was T. V. R. Tatachari. The judgment was delivered on 6 December 1960 by Justice S. K. Das. The petitioner, Gazula Dasaratha Rama Rao, sought a declaration that section 6 of the Madras Hereditary Village‑Offices Act, 1895 (Madras Act III of 1895) was void to the extent that it infringed his fundamental rights under Articles 14 and 16 of the Constitution. He also requested a writ or appropriate direction to set aside the orders issued by respondents 1 to 3 that appointed respondent 4, Vishnu Molakala Chahdramowleshwara Rao, as Village Munsif of the newly created village of Peravalipalem.

At the initial hearing, the Court ordered notice to be sent to other States of the Union because the constitutional question regarding hereditary village offices was of a general nature and could potentially affect similar statutes in other jurisdictions. Apart from the State of Andhra Pradesh, which appeared through its Advocate‑General, no other State entered appearance. The Advocate‑General of Andhra Pradesh represented respondents 1 to 3 in the proceedings.

The Court observed that respondents 3 and 4 were each represented before it, and that they opposed the petition by contending that section 6 of the Madras Hereditary Village‑Offices Act did not infringe any fundamental right and that the orders issued by respondents 1 to 3 were not unlawful. The Court then set out the factual background of the matter. The village of Peravali, situated in the Tenali taluq of Guntur district in the State of Andhra Pradesh, originally comprised the main settlement called Peravali and a sizable hamlet known as Peravalipalem. The two habitations were separated by a large drainage channel. The villagers, especially those residing in the hamlet, experienced administrative difficulties because the two were treated as a single unit for village‑level governance. Consequently the inhabitants of the hamlet submitted an application to the revenue authorities seeking the creation of a distinct village for the hamlet. The Tehsildar recommended the request, and the recommendation was accepted both by the Board of Revenue and by the State Government.

By an order dated 25 August 1956, the Board of Revenue formally bifurcated Peravali village and constituted two separate villages. The order was published in the District Gazette on 1 October 1956. The Gazette notice read in part: “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 30 June 1956. These orders will come into effect from the date of publication in the District Gazette.” The same notice also specified the establishments and the existing scale of pay for each of the new villages. For Peravali the positions listed were one Village Munsif, one Karnam, one Talayari and three Vettians. For Peravalipalem the positions listed were one Village Munsif, one Karnam, one Talayari and one Vettian.

The Court found it useful to quote sub‑section (1) of section 6 of the Act, which had been relied upon for the bifurcation. The provision states that in any local area where the Act applies, the Board of Revenue may, subject to rules made under section 20, group or amalgamate any two or more villages or portions thereof to form a new village, or divide any village into two or more villages. When such division or amalgamation occurs, all hereditary village offices defined in section 3, clause (1) of the Act, in the affected villages or portions shall cease to exist, and new hereditary offices shall be created for the newly formed village or villages. In appointing persons to the new offices, the Collector shall select, from among the families of the last holders of the abolished offices, those whom he considers best qualified.

Accordingly, upon the division of the original village into two separate villages, all hereditary village offices of the original village were extinguished under the aforesaid sub‑section, and new hereditary offices were constituted for each of the two newly created villages. The matter before the Court concerned the appointment to the office of Village Munsif in the newly constituted village of Peravalipalem.

The petitioner sought appointment to the position of Village Munsif in the newly created village of Peravalipalem as its first incumbent. Under subsection (1) of section 6 and the Board of Revenue’s standing orders, the Revenue Divisional Officer in Tenali invited applications for the vacancy. Eight candidates submitted applications, including one from the petitioner and another from respondent four, who is the son of the former Village Munsif of the old village Peravali. On 18 October 1956 the Revenue Divisional Officer issued an order appointing the petitioner as Village Munsif of Peravalipalem. Dissatisfied, respondent four and several other unsuccessful candidates filed appeals with the Collector of Guntur, identified as respondent three. The Collector, by an order dated 1 April 1957, allowed respondent four’s appeal and appointed him as Village Munsif of Peravalipalem. In that order the Collector explained that Shri V. Chandramowleswara Rao was qualified, being the son of the current Village Munsif of Peravali and therefore the heir to the post. The Collector further cited section 6(1) of the Hereditary Village Offices Act, which requires the Collector to choose the best‑qualified person from the family of the last holder whose office had been abolished. The Collector noted that the Village Munsif position of the undivided village of Peravali ceased to exist when the village was split. He further stated that the new Village Munsif post for Peravalipalem must be filled from the family of the former Village Munsif. The Collector also referenced Board Standing Order 148(2), indicating that it embodied the identical instruction regarding selection from the heirs of the abolished office. The petitioner challenged the Collector’s order by filing an appeal with the Board of Revenue, seeking reversal of the appointment. On 24 April 1958 the Board dismissed the appeal, holding that the Collector’s decision complied with section 6 and therefore required no interference. The Board explained that, since the original Village Munsif office had been abolished and two new offices created, the Collector correctly appointed the nearest heir. That heir was the son of the last office holder, who was therefore named Village Munsif of Peravalipalem. The Board further stated that the appellant could not claim any preferential right over the son of the former office holder. Consequently, the Board concluded that the Collector’s order was lawful and that no judicial interference was warranted at this stage.

The petitioner subsequently approached respondent one seeking relief from the earlier decisions concerning his appointment and the manner in which the selection had been made. That effort did not succeed, and consequently the petitioner remained without any administrative or judicial remedy at that stage. Thereafter, the petitioner instituted the present writ petition before this Court, invoking its jurisdiction to examine the legality of the earlier orders that had been issued. The petitioner grounded his challenge mainly on the constitutional guarantees contained in clauses (1) and (2) of Article 16. These provisions command that all citizens shall enjoy equality of opportunity in matters of public employment and that discrimination on the basis of descent alone is prohibited. The relevant text of Article 16(1) reads: “There shall be equality of opportunity for all citizens in matters relating to employment”. In his petition, he asked the Court to examine whether the appointment complied with the constitutional guarantee of equal opportunity. The Court was thus requested to determine the validity of the hereditary selection rule in light of the fundamental right to non‑discriminatory employment. The petitioner emphasized that any distinction based solely on descent must be scrutinized under the equality clauses of the Constitution.

The petitioners relied upon clauses (1) and (2) of Article 16 of the Constitution, which respectively provide that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” and that “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.” The petitioners contended that the post of Village Munsif of Peravalipalem is a post that falls within the meaning of “office under the State” and that the orders issued by respondents 1, 2 and 3 in favour of respondent 4 were based on the hereditary principle prescribed in section 6(1) of the Act. They argued that this reliance on descent alone amounted to discrimination against the petitioner, thereby violating the guarantee of equal opportunity contained in Article 16(1) and (2). Further, the petitioners submitted that section 6(1) of the Act, to the extent that it permits such discrimination, is void under Article 13(1) of the Constitution. The primary issue that therefore arose for determination was whether the office of Village Munsif, as created by the Act, qualifies as an “office under the State” within the meaning of clauses (1) and (2) of Article 16. To answer this question, the Court found it necessary to examine the overall scheme of the Act and the specific provisions that define the nature of the office.

The long title of the Act declares that it was enacted “to repeal Madras Regulation VI of 1831 and for other purposes.” The preamble further states that the purpose of the legislation is “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 identifies the classes of village offices to which the Act applies, and Village Munsif is expressly listed among those offices. Section 4 defines the “emoluments” of an office to include (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 that are granted or continued in respect of, or annexed to, any office by the State. Section 5 then provides that the emoluments of village offices, whether hereditary or not, shall not be liable to be transferred or encumbered in any manner, and that no Court shall be authorized to attach or sell any portion of such emoluments. Sub‑section (1) of section 6 deals with the grouping or division of villages, a provision that had already been considered. Sub‑section (2) gives the Board of Revenue, subject to Government approval, the authority to reduce the number of village offices; where such reduction occurs, the Collector is empowered to dispense with the services of officers who are no longer required. Finally, sub‑section (3) of section 6, which was inserted in 1930, provides that a minor shall not be ineligible for selection merely on the ground of minority.

Section 7 of the Act specifies the situations in which the Collector may, on his own initiative or upon receipt of a complaint and after conducting an enquiry, suspend, remove or dismiss any of the village officers enumerated in section 3. The same statute also confers a comparable power of punishment on the Tehsildar. Consequently, under the provisions of section 7 the Collector is authorised to suspend, remove or dismiss the Village Munsif. Section 10 sets out the procedural rules that must be observed when appointments are made to certain village offices, and those rules include the general qualifications required for a person to be appointed to the offices mentioned. As an illustration, the statute provides that no individual may be appointed to the office of Village Munsif unless he has attained the age of majority, is physically and mentally capable of performing the duties of the office, has passed the educational test prescribed for the office by the Board of Revenue, has not been convicted by a criminal court of any offence that, in the Collector’s opinion, disqualifies him from holding the office, and has not been dismissed from any government post on any ground that the Collector deems sufficient to disqualify him. The original version of section 10 also required that the applicant be male; this gender requirement was removed by the Adaptation (Amendment) Order of 1950, apparently to bring the provision into conformity with Articles 15 and 16 of the Constitution, which forbid discrimination on the basis of sex. Sub‑section (2) of section 10 provides that succession to a village office shall pass to a single heir in accordance with the general custom and the rule of primogeniture that governs succession to an indivisible zamindari estate in Southern India. Sub‑section (3) states that if the next heir is not qualified, the Collector shall appoint the next person in the line of succession who meets the qualifications, and if no qualified person exists in the succession line, the Collector may appoint any suitably qualified person. Sub‑sections (4), (5) and (6) deal with matters that are not directly relevant to the present case. Section 11 prescribes the rules for appointments to certain offices in proprietary estates, one rule mandating that succession shall follow the law or custom applicable to the particular office. Section 13 provides that any person may institute a suit before the Collector concerning any of the village offices listed in section 3 or for the recovery of the emoluments of such an office on the ground that he is entitled to hold the office and receive its emoluments; there are provisos that limit the right of suit, but those limitations are not material to the present matter. Section 14 fixes the limitation period for bringing such suits, while sections 15, 16 and 17 deal with the transfer, trial and the decree or order that may be passed in those suits.

The Court observed that Section 20 of the Act authorised the Board of Revenue to formulate rules, that Section 21 excluded the jurisdiction of civil courts, and that Section 23 provided a mechanism for appeals, thereby outlining the basic scheme of the legislation. In the Court’s view, these provisions demonstrated that the position of Village Munsif created by the Act was an office belonging to the State. The appointment to that office was made by the Collector, the remuneration was granted or continued by the State, and the Collector possessed disciplinary authority, including the power to remove, suspend or dismiss the Village Munsif. Moreover, the Board of Revenue could prescribe the qualifications required for appointment. All these features indicated that the office was not a private post held under a private employer but rather a public office under the State. The Court further noted that the nature of the duties assigned to the Village Munsif under various statutory provisions confirmed that he occupied a public office. The Munsif assisted in revenue collection, exercised magistrate powers, acted as a civil judge in minor cases, and performed police functions such as repressing crime and reporting criminal activity. The learned Advocate‑General appearing for respondents 1 to 3 argued that the expression “office under the State” in Article 16 did not encompass a position like that of the Village Munsif, whose origin lay in a customary village office later recognised and regulated by law. He maintained that the expression referred only to a post in a civil service or an ex‑cadre post under a contract of service, as contemplated in Articles 309 and 310 of Part XIV of the Constitution, which dealt with services under the Union and the States. To support his contention, he cited Ilbert’s Supplement to the Government of India Act 1915, page 261, where a comparable provision concerning the Indian Civil Service stated 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.” He pointed out that this provision reproduced section 87 of the Act of 1833 and historically related to an office or employment in a service directly under the East India Company or the Crown. He also referred to section 298 of the Government of India Act 1935, which declared 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 Advocate‑General argued that Article 16 embodied the same principle as those earlier provisions and therefore should be confined to offices in an organised public service or ex‑cadre posts under a direct contract of service. He further suggested that the removal of the sex requirement in section 10 of the Act was prompted by Article 15 rather than Article 16 of the Constitution. While the Court found the argument plausible, it concluded that, after careful consideration, the contention could not be accepted. Even assuming, for the sake of argument, that Articles 309 and 310 and the other provisions in Chapter I of Part XIV applied only to organised services such as the Indian Administrative Service and to ex‑cadre posts under direct contracts, the scope and effect of clauses (1) and (2) of Article 16 could not be limited by reference to the services chapter. The Court reiterated that Article 14 enshrined the fundamental right to equality before the law and equal protection of the laws throughout the territory of India.

The counsel argued that the provision removing the reference to sex in section 10 of the Act was intended to be based on Article 15 of the Constitution rather than on Article 16. While that argument appeared reasonable, the Court examined it carefully and concluded that it could not be accepted. For the sake of discussion, the Court assumed that Articles 309 and 310 together with other provisions of Chapter 1, Part XIV of the Constitution applied only to an organised public service such as the Indian Administrative Service and to ex‑cadre posts created under a direct contract of service that had not yet been incorporated into any service. Even on that assumption, the Court found no justification for limiting the reach of clauses (1) and (2) of Article 16 by referring to the service‑related provisions of the Constitution. The Court then set out the constitutional framework. Article 14 enshrined the fundamental right to equality before the law and the equal protection of the laws throughout India and was available to every person, regardless of citizenship. Article 15 prohibited discrimination on several specified grounds—religion, race, caste, sex, place of birth, or any of them—but it was limited to citizens and did not apply exclusively to any particular employment or office under the State. Article 16, clause (1), guaranteed equality of opportunity for all citizens in matters of employment or appointment to any office under the State, and clause (2) barred discrimination on certain grounds with respect to such employment or appointment. From this it followed that Article 14 provided a general guarantee of equality, while Articles 15 and 16 represented specific applications of that guarantee for citizens in particular contexts. Article 15 was broader in scope than Article 16, which was confined to public‑employment matters. The Court also observed that Article 15 did not list “descent” among the prohibited bases of discrimination, whereas Article 16 did. Consequently, there was no reason to curtail the full amplitude of the fundamental right given by Article 16 in relation to employment or appointment to State offices by invoking the service provisions of Part XIV or earlier constitutional enactments that dealt with the same subject. Those service provisions did not embody any fundamental right of citizens; they dealt instead with recruitment, conditions of service, and tenure for individuals—citizens or otherwise—appointed to a civil service or to posts connected with the affairs of the Union or any State. Moreover, the Court noted that the term “State” in Part III, which deals with fundamental rights, carried a broader meaning, encompassing the Government and Parliament of India, the governments and legislatures of the individual States, and all local or other authorities within the territory of India.

The Court observed that the term “local or other authorities within the territory of India” indicates that service provisions operate largely separate from the fundamental right that guarantees every citizen equal opportunity in public employment. It noted that the Constitution’s preamble declares one of its aims to secure equality of status and opportunity for all citizens, and that Article 16 specifically provides equality of opportunity in matters of public employment. Accordingly, the Court held that it would be conceptually wrong to diminish the breadth of a fundamental right by referring to provisions that serve a completely different purpose and scope. Article 13 of the Constitution was then examined, which states that any law existing in India before the Constitution’s commencement, to the extent that it conflicts with fundamental rights, shall be void; the term “law” therein also embraces customs or usages possessing the force of law. Consequently, even a custom recognized by law concerning a hereditary village office must yield to the prevailing fundamental right. The Court further turned to Clause (4) of Article 16, which permits the State to make reservations in appointments or posts for any backward class of citizens that the State believes is insufficiently represented in its services. It observed that the learned Advocate‑General attempted to limit the reach of Clauses (1) and (2) of Article 16 by invoking Clause (4), arguing that the latter’s reference to appointments, posts, and inadequate representation constrains the meaning of “office under the State.” The Court clarified that it was not required to determine the precise scope or effect of Clause (4) and therefore expressed no view on that matter. Instead, it emphasized that the expression “office under the State” in Clauses (1) and (2) must be given its ordinary meaning. Accordingly, the Court rejected the Advocate‑General’s contention that the phrase “office under the State” should be read narrowly to exclude a village office such as that of a Village Munsif. It recalled the earlier decision in M. Ramappa v. Sangappa and Others (1959) SCR 167, where the question was whether certain village offices created under the Mysore Villages Offices Act, 1908, qualified as offices of profit under a State government within the meaning of Article 191. The Court in that case held that those offices were indeed offices of profit under the Government, stating that an office must be held under someone and it is inconceivable for an office to exist without a holder. The Court further explained that because the appointment to such offices is made by the Government, the resulting office is necessarily held under the Government, since no other entity can be the source of such authority.

Counsel for the petitioner argued that the office was held under the village community, but that proposition was deemed impossible because village communities had, for a very long time, ceased to exist as corporate entities. Counsel for respondent 4 advanced a different line of reasoning. He contended that the position of Village Munsif was not merely an ordinary office but rather an “office cum property.” According to his submission, Article 16 of the Constitution did not apply to a hereditary village office because a person who obtained the office under the Act possessed a pre‑existing right to both the office and its emoluments, a right that could be enforced through a suit. The Court then turned to examine this contention. Counsel for respondent 4 relied upon the Court’s decision in Angurbala Mullick v. Debabrata Mullick (1), which held that under the Hindu concept of shebaitship the elements of office and property, duties and personal interest, are intertwined and cannot be separated. He argued by analogy that the office of a village Munsif should likewise be characterised as an office cum property. The Court, however, rejected this analogy. Referring to the judgment in Kalipada Chakraborti and Another v. Palani Bala Devi and Others (2), the Court observed that shebaitship is a form of property possessing a peculiar and anomalous character, and it is difficult to place it within the conventional category of immovable property under law. Regarding the office of a Village Munsif under the relevant Act, the provisions of the Act itself together with a long line of judicial decisions made it clear that what accompanies the office are its emoluments, which may consist of land, revenue assignments, agricultural produce, money, salary, or any other form of remuneration. These emoluments are granted or continued in respect of, or annexed to, the office by the State, as expressly indicated in section 4 of the Act. Apart from the office itself, there is no separate right to the emoluments. In other words, when a person was appointed to be a “Village Munsif,” it represented an appointment by the State to an office that would be remunerated either through the use of land or by cash, salary, or similar means; it was not a grant of land burdened with service, a distinction explained by the Privy Council in Lakhamgouda Basavprabhu Sardesai v. Baswantrao and Others (1). The Court also cited Venkata v. Rama (2), which examined the effect of enfranchising lands that formed the emoluments of the hereditary village office of Karnam, and noted that “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.”

In the earlier authorities, it was observed that when the remuneration attached to a village office consisted of land, that land did not become the private property of the person who occupied the office, whether the holder claimed the position by hereditary right or by any other basis. The land was described as an appanage of the office, inalienable by the office‑holder, and intended solely to serve as the emolument of whichever officer subsequently possessed the office. The judgment further explained that if the revenue administration chose to disregard the claim of a person asserting a hereditary right and instead conferred the office on an outsider, the newly appointed officer immediately acquired entitlement to the lands that formed the emolument.

The same principle was reaffirmed in Musti Venkata Jagannada Sharma v. Musti Veerabhadrayya (3), where the history of the Karnam office was examined. That decision observed that the Karnam of a village did not occupy his position by virtue of a hereditary or family right but as a personal appointee, although in certain cases the appointment was primarily made in favour of a suitable individual belonging to a particular family. This reasoning was later considered by a Full Bench of the Madras High Court in Manubolu Ranga Reddi v. Maram Reddi Dasaradharami (4). The Court noted that while the Privy Council had indicated the nature of the Karnam’s right, it had not addressed the question of whether, upon the creation of an office under section 6(1), the members of the family of the last holder of the abolished office possessed a right to compel the Collector to perform the duty imposed by that section. The Madras High Court held that section 6(1) created a right in the family that could be enforced by a suit. Counsel for the respondent relied upon this decision.

It is important to emphasise that the decision was rendered on the premise that section 6(1) was a valid and mandatory provision; at that time no issue arose, nor could it have arisen, concerning the violation of any fundamental right guaranteed by the Constitution by the hereditary principle embodied in that section. The judgment proceeded on the basis that the Act recognised a right vested in a family to the specific office and contained provisions for enforcing that right. It did not rest on a premise that the family possessed a separate right to the property in the form of emoluments, independent of the office. Consequently, the decision cannot be invoked to support the contention that a hereditary village office is comparable to a shebaiti, that is, an office that is also property. The ratio of the decision was limited to the recognition that the Act vested a family right in the office itself, and that reasoning does not assist the respondent in supporting his argument that Article 16, clauses (1) and (2), are inapplicable to the office, even though the office is an office under the State.

In earlier decisions the Court examined whether a hereditary village office could be treated as “property” within the meaning of Article 19(1)(f) of the Constitution. In Ramachandurani Purshotham v. Ramachandurani Venkatappa and Another, (1) the issue was the status of the office of Karnam. The Court held that the Karnam post did not constitute property for the purposes of that constitutional provision. The same conclusion was reached in Pasala Rama Rao v. Board of Revenue, (2) where the Court observed that the right to succeed to a hereditary office was not property, and that the retroactive effect of an adopted son’s rights related only to property interests. The citations for these authorities are A.I.R. 1952 Mad. 150 and A.I.R. 1954 Mad. 483 respectively. However, that view was not followed in Chandra Chowdary v. The Board of Revenue, (1) where the Court noted that a post‑humous adoption did not alter the legal consequences. It held that when an adoption is made to the last holder of a hereditary office, the adopted son is deemed to have existed at the time of the deceased holder’s death and therefore acquires the right to succeed to the office. Moreover, the Court declared that the office of a Village Munsif should be regarded as “property” so that the rule of retroactive adoption would apply to the date of the last male holder’s death. The present case does not concern the doctrine of retroactive adoption, but the earlier judgments illustrate the divergent approaches taken by the courts on whether hereditary offices are property for constitutional purposes.

The question before this Court is whether the office in question, although it is an office under the State, falls within the scope of clauses (1) and (2) of Article 16 of the Constitution. The Court is of the view that nothing inherent in the nature of the office removes it from the ambit of those clauses. An office inevitably carries emoluments, and it would be incorrect to say that because the office belongs to the State it is excluded from Article 16 merely because, before the Constitution, the law recognized a custom that gave preferential right to members of a particular family. The real issue, therefore, is whether that custom, which is now recognised and regulated by the Act, is consistent with the fundamental right guaranteed by Article 16. The Court does not accept the submission of counsel for respondent 4 that the family possessed a pre‑existing right to property in the form of the office’s emoluments, independent of the office itself. If no such independent property right existed, then Article 16 must apply, and section 6(1) of the Act, to the extent that it creates discrimination on the ground of descent alone, violates the petitioner’s fundamental right. There is no doubt that section 6(1) of the Act embodies such discrimination.

In this case, the Court observed that section 6(1) of the Act embodies a principle of discrimination purely on the basis of descent. The provision directs that, when selecting individuals to occupy the newly created offices, the Collector must choose those whom he considers best qualified from among the families of the last holders of the offices that have been abolished, as reported in A.I.R. 1959 Andhra Pradesh 343. The Court held that this selection criterion amounts to discrimination on the ground of descent alone and therefore violates Article 16(2) of the Constitution. Counsel for respondent 4 further argued that the petitioner should not be allowed to challenge the validity of section 6(1) because the petitioner himself had applied for appointment as a Village Munsif under the same Act. Counsel cited the decision in Bapatla Venkata Subba Rao v. Sikharam Ramakrishna Rao (1), a case in which the appellant had been appointed as a hereditary Karnam under the Act and, without the Act, would have had no claim to the Karnam office. That judgment held that the appellant could not, for the first time on appeal, contend that the very Act which gave him his appointment was unconstitutional. The Court noted that, although the question of whether a fundamental right can be waived is not before it, the facts of the present matter are distinct. Here, the petitioner possessed a legitimate right to apply for the new village office, and his application had been accepted by the Revenue Divisional Officer. However, respondents 1 to 3 issued orders adverse to the petitioner and in favour of respondent 4, acting on the principle of descent‑based discrimination contained in section 6(1). The Court therefore concluded that the petitioner may assert that section 6(1) is void to the extent that it infringes his fundamental right guaranteed by Article 16, and that his application for appointment should be adjudicated on its merits. Finally, the Court addressed an additional argument presented by the Advocate‑General for respondents 1 to 3, which distinguished between Articles 15 and 16. It was earlier observed that Article 15 is broader than Article 16 because it is not confined to public employment and covers all forms of State discrimination, whereas Article 16 is limited to employment. Yet, regarding the specific grounds of discrimination, Article 15 may be narrower because it does not list “descent” as a prohibited ground, as noted in A.I.R. 1958 Andhra Pradesh 322. The Advocate‑General submitted that the provision under challenge should be examined under Article 15 rather than Article 16, arguing that the wider range of grounds enumerated in Article 16 suggests that Article 16 does not apply in this context.

The Court observed that the contention that Article 16 does not apply to offices where the law recognises a right based on descent presupposes the very point that is contested. It noted that if one were to assume that Article 16 is inapplicable, the matter would be resolved without further enquiry, but such an assumption was improper. The Court therefore examined whether the office in question – the Village Munsif – qualified as an office under the State. Having previously held that the Village Munsif is indeed an office under the State, the Court affirmed that Article 16, in terms, applies to it. The judgment further pointed out that clause (5) of Article 16 demonstrates that the provision does not carry the limited interpretation advanced by the learned Advocate‑General; specifically, an incumbent of an office connected with the affairs of any religious or denominational institution is not necessarily required to be a member of the Civil Service. On the basis of this reasoning, the Court allowed the petition. Consequently, the orders passed by respondents 1 to 3 concerning the appointment to the post of Village Munsif of Peravalipalem in favour of respondent 4 were set aside. The Court directed that the petitioner’s application for the said office be now processed on its merits by the appropriate Revenue authorities, on the ground that Section 6(1) of the Act, insofar as it infringes the fundamental right guaranteed under Article 16 of the Constitution, is void. The petitioner was awarded costs of the hearing before the Court, and the petition was accordingly allowed.