PETITIONER:
D. NAGARAJA ETC.
Vs.
RESPONDENT:
STATE OF KARNATAKA & ORS.
DATE OF JUDGMENT18/01/1977
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 876 1977 SCR (2) 626
1977 SCC (2) 148
ACT
Constitution of India--Article 226--Who can apply--Whether
existence a right essential--Mysore Village Offices ,Act
1908--Mysore Village Offices Abolition Act 1961.
Karnataka General Services (Revenue Subordinate Branch)
Village Accountants (Recruitment) Rules, 1970.
HEADNOTE
The appellants held the post of Shambhogues on hereditary
basis under the Mysore Village Offices Act 1908. This Court
in the case of Gowla Dasrath Ramarao held that a law which
recognises the custom by which a preferential right to an
office vested in the members of a particular family was not
consistant with the fundamental right guaranteed by Article
16 of the Constitution and that the Madras Hereditary
Village Offices Act of 1895 in so far as it made discrimina-
tion on the ground of descent only was violative of Article
16(2) of the Constitution and, therefore, void. With a view
to give effect to the said judgment of this Court Mysore
Village Offices Abolition Act of 1961 was enacted abol-
ishing all the hereditary Village Offices including the
office of Shambhogues or Village Accountants created under
the Mysore Villages Offices Act 1908. The President gave
his assent to the said Act. Thereafter, the Governor of
Mysore framed Mysore General Services (Revenue Subordinate
Branch) Village Accountants (Cadre and Recruitment) Rules,
1961, to regulate the recruitment, pay and other conditions
of service of Village Accountants. Rule 10 provided for the
initial recruitment to the post of Village Accountants to
be made from amongst persons holding posts of Village Offi-
cers on the date of commencement of those rules provided
they fulfilled certain educational qualifications and were
below a certain age Challenge to the constitutional validi-
ty of the said Act was negatived by this Court in the case
of B.R. Shankaranarayana & Ors. v. State of Mysore AIR. 1966
S.C. 1571. The State Legislature enacted the Karnataka
Land Revenue Act 1964 Section 16 of the said Act provides
for the appointment of Village Accountants and the continu-
ance of Village Accountants hold the said post immediately
before the commencement of the Act. Section 16(e) provides
that persons holding the office of the Village Accountant
before the commencement of the Act shall be deemed to be
village Accountants for such villages till other persons
were appointed. The 1961 rules were repealed and replaced
by Karnataka General Services (Revenue Subordinate Branch)
Village Accountants (Recruitment) Rules. 1970. Rules 4
and 5 lay down the eligibility of the persons for the ap-
pointment as Village Accountant .and the constitution of a
Committee for selection and the method of selection. The
Recruitment Committee invited applications, interviewed the
applicants who were eligible and prepared a list of selected
Candidates and, thereafter, issued the order of appointment.
As the appellants had to give up their posts in consequence
of the fresh appointments they filed the present writ peti-
tions impugning the validity of rules 4 and 5 of the 1970
Rules on the ground that they were violative of Articles 14
and 16 of the Constitution and challenging the selection and
appointment of respondents Nos. 3 to 191 as Village Ac-
countants and for a direction that they should be continued
as Village Accountants. The High Court dismissed the writ
petitions.
Dismissing the appeals,
HELD: 1. Though Article 226 of the Constitution in terms
does not describe the classes of persons entitled to apply
thereunder, the existence of the right is implicit for
invoking the exercise of the extraordinary jurisdiction by
the High Court under the said Article. It is well estab-
lished that a person who
627
is not aggrieved by the discrimination complained of cannot
maintain a writ petition. The constitutional validity of
the Abolition Act abolishing all hereditary Village Offices
having been upheld by this Court, the appellants who did not
apply for appointment as Village Accountants in response to
the notification inviting applications, since they did not
possess the. prescribed qualifications, could not complain
of the unconstitutionality of the 1972 Rules or of the
infringement of Articles 14 and 16 of the Constitution.
The High Court, therefore, was right in holding that the
appellants have no right to maintain the writ petitions.
[631 E-H 632 A]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 883
and 898-905/75.
Appeals by Special Leave from the: Judgment and Order
dated 20-2-75 of the Karnataka High Court in Writ Petition
Nos. 5825/74 and 5818, 5820, 5821, 5822, 5823, 5824, 5828
and 5829 of 1974.
R.B. Datar for the Appellants in all the appeals.
V.P. Raman, Addl. Sol. Genl (In CA 883/75) and N. Nettar for
RR 1 and 2 in all the appeals.
The Judgment of the Court was delivered by
JASWANT SINGH J. This judgment shall dispose of Appeals
Nos. 883 and 898 to 905 of 1975 which are, directed against
the common judgment dated February 20, 1975 of the High
Court of Karnataka at Bangalore dismissing writ petitions
Nos. 5825, 5818, 5820, 5822 to 5824, 5828 and 5829 of 1974
on the ground that the appellants had no right to maintain
the same.
The circumstances leading to ’these appeals are: The
appellants held the posts of Shambogues on hereditary basis
under the Mysore Village Offices Act, 1908. In writ peti-
tion No. 133 of 1959 entitled Gazula Daseratha Rama Rao v.
State of A.P. & Ors. (1) decided on December 6, 1960, this
Court held that a law which recognised the custom by which a
preferential right to, an office vested in the members of a
particular family was not consistent with the fundamental
right guaranteed by Article 16 of the Constitution; that a
custom which is recognised by law with regard to a heredi-
tary office must yield to a fundamental right and_section
6(1) of the Madras Hereditary Village Offices Act/II of 1895
in so far as it made discrimination on the ground of descent
only was violative of the’ fundamental right under Article
16(2) of the Constitution and was void.. With a view to
giving effect to tile principle settled by this decision,
the Legislature of the. then State of Mysore comprising the
territories the erstwhile States of Mysore and Coorg and
certain parts of the erstwhile Stales of Bombay, Hyderabad
and Madras enacted the Mysore Village Offices Abolition
Act, 1961 (Act XIV of 1961) (hereinafter referred to as
’the Abolition Act’) abolishing all the hereditary village
offices including the office of Shambogue or village Ac-
countant created under the Mysore Village Offices Act,
1908. Pursuant to sub-section (3) of section 1 which autho-
rise.d the State Government to fix a date for the commence-
ment of the Act, the Government of Mysore issued a notifi-
cation on January 9, 1963 notifying that the Abolition Act
would come into force with effect from February 1, 1963.
(1) [1961] 2 S.C.R. 931=A.I.R. 1961 S C. 564.
6--112 SCI/77
628
Shortly after the according of the assent to the Aboli-
tion Act by the President on July 8, 1961, the Governor of
Mysore flamed rules called the Mysore General Service
(Revenue Subordinate Branch) Village Accountants (Cadre
and Recruitment) Rules, 1961 in exercise of the powers
vested in him under the proviso to Article 309 of the Con-
stitution and other powers enabling him in that behalf.
These Rules, as evident from their title, were designed to
regulate the recruitment, pay and other conditions of serv-
ice of Village Accountants. Rule 10 of the 1961 Rules which
was in the nature of a non obstante provision provided for
the initial recruitment to the posts of Village Accountants
to be made from amongst persons holding the posts of village
officers on the date of commencement of those Rules provided
that such persons had passed the S.S.L.C. examination or
an equivalent examination and their age did not exceed 40
years on the said date. By a proviso which was introduced
in the year, 1963, it was provided that in the event of
persons satisfying the qualifications mentioned in Rule 7
not being available even after the vacancies are twice
advertised, the recruitment should be made from amongst
persons holding the posts of village officers who were not
more than 50 years of age on the date of commencement of the
said Rules and who had passed the Lower Secondary or Vernac-
ular Final or equivalent examination.
By a notification issued on January 6, 1963, the Govern-
ment of Mysore directed the Deputy Commissioners to appoint
persons recruited under the 1961 Rules as village account-
ants and relieve the then holders of their offices. On
the issue of the aforesaid notification dated January 9,
1963, a number of writ petitions under Article 226 of the
Constitution were filed in the High Court challenging the
legality and constitutional validity of the Abolition Act on
the ground that it was a piece of colourable legislation.
During the pendency of the writ petitions, an ad-interim
order staying the operation of the aforesaid Notification
dated January 9, 1963 was issued by the High Court. As a
consequence of the stay order, the appellants and a number
of other persons who were holding tile posts of Shambogues
under the Mysore Village Offices Act, 1908 had to be con-
tinued by the State Government in the posts held by them.
The writ petitions were eventually dismissed by the High
Court by its judgment dated December 9, 1963 which was
confirmed by this Court vide its judgment dated January
21, 1966 rendered in B.R. Shankaranarayana & Ors. v. State
of Mysore(1). Thus the constitutional validity of the
Abolition Act was finally upheld by the Court. During the
pendency of the appeals against the judgment of the High
Court dated December 9, 1963, the State Legislature enacted
the Karnataka Land Revenue Act, 1964 (hereinafter referred
to as ’the Act’) which came into force on April 1, 1964.
Section 16 of the Act provides for the appointment of Vil-
lage Accountants and the continuance of village accountants
hold the said posts immediately before the commencement of
the Act. Sub-section (1) of section 16 lays down that,
subject to the general orders of the State Government and
the Divisional Commissioner, the Deputy Commissioner can
appoint Village Accountants for villages or groups of vil-
lages. Sub-section (2) of section 16 provides that the
(1) A.I.R. 1966 S.C. 1571.
629
persons holding the office of the Village Accountant before
the commencement of the Act, shall be deemed to be Village
Accountants for such villages till another person is ap-
pointed under sub-section (1 ) of section 16. Thus sub-
section (2) of section 16, it would be seen, was designed to
cover the case of the persons who had perforce to be
continued as Shambogues because of the aforesaid stay order
issued by the High Court despite the abolition of those
posts by the Abolition Act.
The 1961 Rules were repealed and replaced by another
set of Rules called the Karnataka General Services (Reve-
nue. Subordinate Branch) Village Accountants (Recruitment)
Rules, 1970 (hereafter referred to as the 1970 Rules) made
by the State Government in exercise of the powers conferred
by sections 16 and 17 of the Act. Rules 4 and 5 of the
1970 Rules which were amended from time to. time stood as
follows on the relevant date :--
"4. Recruitment. (1) Recruitment to the
cadre of village Accountant shah be made by
direct recruitment from amongst :--
(i) persons who have served as Village Offi-
cers;
(ii) local candidates whether in service or
not, who have put in a total of not less than
one year of service as on 1st January, 1970,
if sufficient number of eligible persons are
not available under (i);
(ii) persons who have been regularly recruited
as Panchayat Secretaries in accordance with
the rules in force at the time of the re-
cruitment and working as Panchayat Secretaries
who have passed the S.S.L.C. examination or
any other examination declared as equivalent
thereto by the State Government if sufficient
number of eligible persons are not available
under (ia) ;
(iii) persons who are regularly recruited as
Panchayat Secretaries in accordance with the
rules in force at the time of recruitment
and working as Panchayat Secretaries who--
(a) have passed the Middle School examination
or any other examination declared as equiva-
lent thereto by the State Government; and
(b) have put in not less than 10 years of
service as Panchayat Secretaries as the case
may be if sufficient number of eligible
persons are not available under (ii);
630
(c) are not more than 50 years of age as on
1st April, 1967;
(iv) xx xx xx
(v) others, if sufficient number of persons
are not available under any of the above
categories.
(2) No persons other than the persons
referred to in categories (ii) and (iii) of
sub-rule (1) "shall be eligible for appoint-
ment under these rules unless he has passed
the S.S.L.C. examination or any examination
declared by State Government as equivalent
thereto.
(3) The limit for appointment under sub-
rule (1) shall be-
(i) 33 years in the case of a person
belonging to any of the Scheduled Castes or
Scheduled Tribes; and
(ii) 28 years in the case of others as on
1st January, 1970.
Provided that in the case of person who
have served as Village Officer or as Panchayat
Secretary such age as on 1st April, 1967,
shall not exceed 50 years.
Provided further that in the case of local
candidates, such age shall be as on 1st Janu-
ary, 1965:
Explanation--For the purpose of this
rule "ViIIage Officer" means a person who held
a ’Village Office’ other than in inferior
village office as defined in the Karnataka
Village Offices Abolition Act, 1961 (Karnataka
Act 14 of 1961)."
"5. Committee for selection--(1) There
shall be a Committee for each district
consisting of the Deputy Commissioner of the
District, the Assistant Commissioner, shall be
the Chairman of the Committee and one of the
members appointed by the Deputy Commission-
er shall be the Secretary.
(2) The Committee shall call for applica-
tion for appointment as village Accountants
and make selection in the manner laid down
in the Mysore State Civil Services (Direct
Recruitment by Selection) Rules, 1967.
(3) The decision of the Committee shall be
final subject to the approval of the Division-
al Commissioner.
(4) The list approved by the Divisional
Commissioner shall be published and appoint-
ments shall be made in order in which the
names of persons selected are arranged in the
said list."
631
Pursuant to the 1970 Rules, applications were invited
by the Recruitment Committee in the year, 1972 to fill up
the posts of Village Accountants in the District of Has-
san. After sorting out the applications received in re-
sponse to the: advertisement, the Committee interviewed
the applicants who. were eligible for appointment and
prepared a list of the selected candidates for appointment
as Village Accountants. This list was quashed by the High
Court by its judgment dated November 19, 1972 rendered
in writ petition No. 1871 of 11972 entitled Komari Gowda
v. State of Mysore & Ors. and the Committee was directed.
to select the candidates afresh in accordance with law.
Consequently the Committee again interviewed the eligible
candidates and prepared a fresh list of the selected candi-
dates which was published in the Karnataka Gazette on May
30, 1974. Thereafter, the Deputy Commissioner,’ Hassan
issued orders of appointment of the candidates who were
selected by the Recruitment Committee. Some of the candi-
dates thus selected were posted as Village Accountants
under section 16(2) of the Act to the villages in which the
appellants were functioning. As the. appellants had to give
up their posts in consequence. of the aforesaid fresh
appointments under section 16(2) of the Act, they filed the
aforesaid writ petitions impugning (i) the validity of rules
4 and 5 of the 1970 Rules on the ground that they were
violative of Articles 14 and 16 of the Constitution, (ii)
the selection and appointment of respondents 3 to 191 as
Village Accountants and praying that a writ of mandamus be
issued directing respondents 1 and 2 to continue them as
Village Accountants under section 16(2) of the Act. The
writ petitions having been dismissed by the High Court as
stated above., the appellants have come up in appeal to
this Court.
The sole question that requires to be determined in
these appeals is whether the appellants could maintain that
aforesaid writ petitions. It is well settled that though
Article 226 of the Constitution in terms does not describe
the classes of persons entitled to apply thereunder, the
existence of the right is implicit for the exercise of the
extraordinary jurisdiction by the High Court under the said
Article. It is also well established that a person who is
not aggrieved by the discrimination complained of cannot
maintain a writ petition. The constitutional validity of
the Abolition Act abolishing all hereditary village offices
including the office of the Shambogue or Village Accountant
having been upheld by this Court in B.R. Shankanarayana &
Ors. v. State of Mysore (supra), and the first preference in
the matter of appointment of Village Accountants having been
given by Rule 4 of the 1970 Rules to all persons. belonging
to the category and class of the appellants who had served
as Village Officers, the appellants who did not apply for
appointment as Village Accountants in response to the afore-
said notification issued by the Recruitment Committee and
did not possess the prescribed qualification, could not
complain of the unconstitutionality of the 1970 Rules or of
the infringement of, Articles 4 and 16 of the Constitution
which merely forbid improper or invidious distinctions by
conferring rights or privileges upon a class of persons
arbitrarily selected from out of a larger group who. are
similarly circumstanced but do not exclude the laying down
of selective tests nor prevent the Government from laying
general educational
632
qualifications for the post in question. The High Court
was, therefore, right in holding that the appellants have no
right to maintain the aforesaid writ petitions. The appeals
accordingly fail and are dismissed but without any order
as to costs.
P.H.P. Appeals
dismissed.
633