Rishikesavan Naidu vs S. Srinivasa Reddiar and Others

Ramachandra Iyer, C.J.

(1) This appeal against the judgment of Srinivasan, J. concerns the validity of an appointment to the office of a village headman for Vembi village in

South Arcot Dt. The appointment to the office was regulated by the Madras Hereditary Village Offices Act, 1895. The office became vacant

sometime during the year 1936, when one Pattabhirama Naidu, then a minor, was registered as the person lawfully entitled to hold the office. The

first respondent herein was appointed as his deputy to do the duties pertaining to the office. Pattabhirama Naidu did not eventually acquire the

necessary qualifications for becoming a village headman within the time allowed to him under the statute.

The next to succeed him was one Munuswami Naidu. He also happened to be a minor; he was registered and the first respondent was then

appointed to function as his deputy. History repeated itself, as Munuswami failed to qualify himself for the post. The next in line of succession was

the appellant, who was a minor at the time when Munuswami forfeited his right to the office. The appellant was recognised by the authorities as a

person lawfully entitled to the post on 5-5-1950, that is, after the Constitution of India came into being. The first respondent was allowed to be his

deputy. Contrary, perhaps, to the expectations of the first respondent, the appellant passed the prescribed tests within the time allowed to him,

after attaining the age of majority. He applied on-12-1959 to enter upon the duties of his office. His attempt was countered by the first respondent,

who made frivolous and false averments about the appellant''s character and financial status. It was objected that the application itself had not been

filed within the time permitted under the law.

(2) Both the Revenue Divisional Officer, in the first instance and the district Revenue Officer, on appeal, found that objections of the first

respondent to be untenable and they affirmed the appellant''s right to the office and allowed him to enter upon his duties. The order of the appellate

authority was passed on 28-10-1960.

(3) On 6-12-1960 the supreme Court delivered judgment in a case from the Andhra Pradesh holding that the office of a village headman under the

Madras Hereditary Village Offices Act, was an ""office"" under the state within the meaning of that term in Art. 16(1) and (2) of the Constitution and

appointments thereto could not be made to depend on the basis of descent alone; for, then it would be discriminatory. The Supreme Court also

invalidated S. 6(1) of that enactment. We are not however, concerned in this case about the latter aspect of the matter. The decision of the

Supreme Court has been reported in Gazula Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, .

(4) The first respondent appears to have thought that he could challenge the appellant''s appointment on a more substantial ground than those put

forward by him before the revenue authorities. He then filed an application to this court towards the end of March 1961, for the issue of a writ of

certiorari under Art. 226 of the Constitution to quash the orders of the Revenue authorities, appointing the appellant to the office of village

headman.

(5) Having regard to the fact that the invalidity of the application of the principle of heredity to the appointment of village officers was for the first

time decreed by the Supreme Court in the decision referred to above, it could not reasonably be expected of the first respondent to have taken

any objection as to the invalidity of the appellant''s appointment before the revenue authorities. It cannot, therefore, be said that his application for

the issue of a writ of certiorari should be rejected on the short ground that he had not taken the appropriate objection before the revenue

authorities.

(6) Srinivasan, J. before whom the writ application came up for final disposal, held that inasmuch as the revenue authorities made the appointment

of the appellant on the basis that the appellant had an overriding claim to be appointed to the office by virtue of his relationship to the previous

holder, it could not be said that there was a proper appointment to the office. The learned Judge, therefore, issued a writ quashing the order of the

revenue authorities. The appellant has now appealed.

(7) It will be noticed that although the appellant has been registered under S. 10(5) of the Act as the successor to the last holder as early as 5-5-

1950, there has been no challenge to the registration then or at any later time. But registration by itself is not equivalent to an appointment to the

office. It can only amount to a declaration that the person registered will be entitled, on attaining the age of majority or within 3 years thereafter, to

be appointed to the office, provided he qualified himself for the post within the prescribed period. Failure to object to the registration will not,

therefore, disentitle the first respondent from contesting the validity of the appointment of the appellant.

(8) It is true, as the learned Judge has pointed out, that the authorities proceeded on the footing that the person registered will be entitled to get

himself appointed when he came forward with his application after passing the necessary tests. That was due to the fact that the prevailing opinion

then was that the Madras Hereditary Village Offices Act, in so far as it recognised heredity as a claim to certain village offices, was a valid piece of

legislation. Even if one were to hold that the Act in that respect is invalid, the appointing authority will still be the Government.

(9) The Board''s Standing Orders, which govern the appointment to non-hereditary village offices and this case must in the light of the Supreme

Court''s decision be treated as one such as to invest the power of appointment in the very authorities who would be competent to make such

appointment under the Act.

(10) gain at the time when the appellant made his application to the Revenue Divisional officer, for his being appointed to the office, there was no

rival applicant. Even the first respondent, who objected to the proposals made by the Tahsildar of Villupuram, did not claim before the revenue

Divisional Officer that he should be considered for such an appointment. The only objection raised by him was that the appellant was not entitled to

be appointed to the office, because he had a bad reputation, that no property, and had not applied within the period permitted by the Act. If those

objections were unfounded, it being now conceded they were unfounded, it must be taken that the first respondent himself had no objection to the

appointment of the appellant. Indeed in one of his petitions he stated that the government should appoint the next heir to the last holder of the

office.

Under the circumstances, the utmost that can be said in this case is that if the authorities were aware that the application of the heredity principle in

the matter of making appointment to village offices was invalid, they would have adopted a different procedure and if there were more than one

applicant for the post, they would have considered the applications. But it is too much to speculate now whether, if they had followed the normal

procedure applicable to the appointment to a non-hereditary office, they would have got other applications. It cannot therefore be said that the

non-observance of the procedure, if any, prescribed for the selection of non-hereditary village offices, has vitiated the fresh appointment.

(11) While heredity by itself cannot support a claim to the office, it has never been regarded as a disqualification, it has never been regarded as a

disqualification. It can be conceded that to an office like the present one, where other things are equal, an applicant whose father or ancestor was

village officer, would-be more competent to hold the post than a newcomer. We cannot also forget that in the instant case since the year 1950 the

appellant, in the belief that he would be ultimately appointed as the village headman, had acquired the necessary qualification. In Gazula Dasaratha

Rama Rao Vs. The State of Andhra Pradesh and Others, , there was a conflict for the office between two persons, one with hereditary

qualification and the other without. In such a case, on the principles there laid down by the Supreme Court, it was obvious that selection to the

office could not be made purely on the basis of heredity. In the instant case, there was only one person who applied for appointment to the office.

It cannot be said that anybody had been excluded in favour of the appellant.

(12) Learned counsel appearing for the respondent has invited our attention to an unreported judgment of Anantanarayanan J. in W. P. No. 32 of

1959 (Mad) who held.

However this might be, it cannot be denied that the judicial canon is that the view enunciated by their Lordships of the Supreme Court in the

decision just referred to not merely govern instances arising hereafter, but also instances brought to the notice of the court, since it must be

presumed always to have been the law.

But this observation must be read in the context of opposing claims to an office, the vacancy to which arose before the judgment of the Supreme

Court was rendered. As we read the judgment, the learned Judge did not, for instance, intend to lay down that even unchallenged appointments,

based on the principle of heredity but made prior to the pronouncement by the Supreme Court, could be regarded as invalid. To accept such a

principle would be to unsettle several appointments made by the government after the Constitution and prior to the year 1961. As we indicated

above, what all Art. 14 and 16 prescribe is that there can be discrimination only where there is rival claims to the office.

(13) Srinivasan J. has held that as the entire matter has been dealt with by the revenue authorities only on the basis that the appellant had an

overriding claim to be appointed to the office, the appointment should be held to contravene the principle laid down by the Supreme Court. We

are unable to share that view. In the absence of a claim by any other person, it cannot be said that the appellant was chosen on any overriding

considerations e.g. heredity.

(14) The first respondent''s objection to the order of the revenue authorities has to fail on another ground as well. He was holding the post of

village headman only as a deputy. As we said, he never applied for the post. It cannot, therefore, be said that when the revenue authorities

overruled his objection, he was a person aggrieved by the order. It would have made little difference to him whether the appellant or any other

person was appointed to the office. The learned Judge has said that as the first respondent has been deprived of his officer by the recognition

accorded to the appellant, it would be competent for him to invoke the writ jurisdiction of this court. With respect, we are unable to agree. His

office was only that of a deputy who will have to give way to the person appointed. It will be too much to speculate now that if the appellant''s

appointment were to be set aside and some other were to be chosen in his place, the first respondent would also have rights to continue his office

as deputy.

In view of the decision in Gazula Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, , there could be no appointment of a minor

to a village office. No question of appointing a deputy can at all arise hereafter. There could, therefore, be no office the holding of which by the first

respondent could be said to have been imperiled so as to make him feel aggrieved with the appointment of the appellant. We are, therefore, of the

opinion that there is no justification for interfering with the order of the revenue authorities appointing the appellant to the office of village headman.

Further, the first respondent not being a person with a legal grievance, could not move this court for the issue of a writ.

(15) The appeal will therefore be allowed with costs against the first respondent here and before the learned Judge.

(16) Appeal allowed