original jurisdiction petition number 133 of 1959. petition
under art. 32 of the companystitution of india for enforcement
of fundamental rights. v. viswanatha sastri and g. gopalakrishnan for the
petitioner. narasa raju advocate-general of andhra pradesh d.
venkatappayya sastri and t. m. sen for respondents number. 1-
3.

v. r. tatachari for respondent1 number 4. 1960. december 6. the judgment of the companyrt was delivered
by

k. das j.-this is a writ petition under art. 32 of the
constitution. gazula dasarstha rama rao is the petitioner. the respondents are  1  the state of andhra pradesh  2  the
board of revenue andhra pradesh  3  the companylector of
guntur in andhra pradesh and  4  vishnu molakala
chahdramowlesshwara
rao. the petitioner prays that this companyrt must declare s. 6
of the madras hereditary village-offices act 1895  madras
act iii of 1895  hereinafter called the act as void in so
far as it infringes the fundamental right of the petitioner
under arts. 14 and 16 of the companystitution and further asks
for an appropriate writ or direction quashing certain orders
passed by respondents 1 to 3 in favour of respondent number 4
in the matter of the latters appointment as village munsif
of a newly companystituted village called peravalipalem. when
this petition first came up for hearing we directed a numberice
to go to other states of the union inasmuch as the question
raised as to the companystitutional 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 numbere of the
other states have entered appearance. the advocate general
of andhra pradesh has appeared for respondents 1 to 3 and
respondent 4 has been separately represented before us. these respondents have companytested the application and have
pleaded that s. 6 of the act does number violate any
fundamental right number 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 companyprised of a village of the same name and a
fairly large hamlet called peravalipalem. the two were
divided by a big drainage channel. it is stated that for
purposes of village administration the villagers felt some
difficulties in the two being treated as one unit so the
villagers particularly those of the hamlet but in an
application to the revenue authorities for companystituting the
hamlet into a separate village. this application was re-
commended by the tehsildar and was accepted by the board of
revenue and the state government. by an order dated august
25 1956 peravali village was bifurcated and two villages
were companystituted. the
order was published in the district gazette on october
1151956 and was in these terms
the board sanctions the bifurcation of peravali village of
tenali taluq guntur district into two villages viz.  1
peravali and  2  peravalipalem along the boundary line shown
in the map submitted by the companylector of guntur with his
letter re. a. 4. 28150/55 dated 30th june 1956. these
orders will companye into effect from the date of publication in
the district gazette. the board sanctions the following establishments on the
existing scale of pay for the two villages
peravali-
1 village munsif. 1 karnam. 1 talayari. 3 vettians. peravalipalem-
1 village munsif. 1 karnam. 1 talayari. 1 vettian. it is companyvenient to read at this stage sub-s.  1  of s. 6 of
the act under which the bifurcation was made
s. 6 1 . in any local area in which this act is in force
the board of revenue may subject to rules made in this
behalf under section 20 group or amalgamate any two or more
villages or portions thereof so as to form a single new
village or divide any village into two or more villages and
thereupon all hereditary village offices  of the classes
defined in section 3 clause  1  of this act  in the
villages or portions of villages or village grouped
amalgamated or divided as aforesaid shall cease to exist i
and new offices which shall also be hereditary shall the
created for the new village or villages. in choosing
persons to fill such new offices the companylector shall select
the persons whom he may companysider the best qualified from
among the families of the last holders of the offices which
have been abolished. on the division of the village into two villages all the
hereditary village offices of the original village ceased to
exist under the aforesaid sub-section and new offices were
created for the two villages. we are companycerned in this case
with the appointment to the office of village munsif in the
newly companystituted village of peravalipalem. in accordance
with the provisions of sub-s.  1  of s. 6 and certain
standing orders of the board of revenue the revenue
divisional officer tenali invited applications for the
post of village munsif of peravalipalem. eight applications
were made including one by the petitioner and anumberher by
respondent 4. respondent 4 be it numbered 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 companylector of guntur. by an
order dated april 1 1957 respondent 3 allowed the appeal
of respondent 4 and appointed him as village munsif of
peravalipalem. in his order respondent 3 said shri v.
chandramowleswara rao is qualified for the post. he is the
son of the present village munsif of peravali and is
therefore heir to that post s. 6 1  of the hereditary
village offices act states that in choosing a person to fill
a new office of this kind the companylector shall select the
person whom he may companysider best qualified from among the
family of the last holder of the office which has been
abolished. the village munsifs 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 companytained in
boards 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
in a new office like this the companylector shall select the
person whom he companysiders best qualified from among the
families of the last holders of the office which have been
abolished. here the office of the village munsif was
abolished and two new offices have been created. as the
last holder of the office was appointed to the new village
peravali after bifurcation the companylector has appointed
the son of the last office holder as village munsif of
peravalipalem as he is the nearest heir. the appellant
before the board cannumber claim any preference over the son of
the last office holder. the board therefore holds that
the companylectors order is in accordance with the law on the
subject. numberinterference is therefore called for. the petitioner then moved respondent 1 but without
success. thereafter he filed the present writ petition. the petitioner relies mainly on clauses  1  and  2  of art. 16 of the companystitution. we may read those clauses here
art. 16 1 . there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the state

numbercitizen 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. on behalf of the petitioner it has been companytended that  1
the office of village munsif of peravalipalem is an office
under the state and  2  respondents 1 to 3 in passing their
orders in favour of respondent 4 expressly stated that they
proceeded on the basis of the hereditary principle laid down
in s. 6 1  of the act and discriminated against him as a
citizen. on the ground of descent only. this
discrimination it is argued violates the guarantee of equal
opportunity enshrined in art. 16 cls.  1  and  2 - and s.
6 1  of the act to the extent that it permits such
discrimination is void under art. 13 1  of the companystitution. the first question before us is if the office of village
munsif under the act is an office under the state within the
meaning of cls.  1  and  2  of art. 16 of the companystitution. for determining that question it is necessary to examine the
scheme and various provisions of the act. the long title
shows that it was an act made to repeal madras regulation vi
of 1831 and for other purposes. the purposes mentioned in
the preamble are-to provide more precisely for the
succession to certain hereditary village offices in the
state for the hearing and disposal of claims to such
offices or the emoluments annexed thereto for the
appointment of persons to hold such offices and the companytrol
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 companytinued 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
number hereditary shall number be liable to be transferred or
encumbered in any manner whatsoever and it shall number be
lawful for any companyrt to attach or sell such emoluments or
any portion thereof sub-s.  1  of s. 6 relates to the
grouping or division of villages this sub-section we have
already read. sub-s.  2  of s. 6 gives a right to the board
of revenue subject to the approval of government to reduce
the number of village offices and on such reduction the
collector is empowered to dispense with the services of the
officers numberlonger required. sub-s.  3  of6 which was
subsequently added in 1930 says thatminumber shall number be
ineligible for selection by reasonumber his minumberity only. section 7 states the circumstances in which the companylector
may of his own motion or on companyplaint 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
or dismiss the village munsif. section 10 lays down
certain rules which are to be observed in making
appointments to some of the village offices and these rules
lay down among other things the general qualifications
requisite for appointment to the offices in question. for
example for the appointment to the office of village munsif
numberperson. is eligible unless he has attained the age of. majority is physically and mentally capable of discharging
the duties of the office has qualified according to the
educational test prescribed for the office by the board of
revenue has number been companyvicted by a criminal companyrt of any
offence which in the opinion of the companylector disqualifies
him for holding the office and has number been dismissed from
any post under the government on any ground which the
collector companysiders sufficient to disqualify him for holding
the office. one of the qualifications prescribed by s. 10
as it originally stood required that the applicant must be
of the male sex. this requirement was deleted by the
adaptation  amendment  order of 1950 presumably to bring
the section into companyformity with arts. 15 and 16 of the
constitution which prohibit discrimination on the ground of
sex. sub-s.  2  of s. 10 says that the succession shall
devolve on a single heir according to the general custom and
rule of primogeniture governing succession to impartable
zamindar is in southern india. sub-s.  3  of s. 10 says
that where the next heir is number qualified the companylector
shall appoint the person next in order of succession who is
so qualified and in the absence of any such person in the
line of succession may appoint any person duly qualified. sub-ss.  4   5  and  6  of s. 10 deal with matters with
which we ore number directly companycerned. 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 companylector 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
enjoy such emoluments. there are some provisos to the
section which lay down limitations on the right of suit. with those limitations we are number companycerned in the present
case. section 14 lays down the period of limitation for
bringing a suit. sections 15 16 and 17 relate to the
transfer and trial of such suits and the decrees or orders
to be passed therein. section 20 empowers the board of
revenue to make rules and s. 21 bars the jurisdiction of
civil companyrts. section 23 provides for appeals. the above gives in brief the scheme and provisions of the
act. these provisions show in our opinion that the office
of village munsif under the act is an office under the
state. the appointment is made by the companylector the
emoluments are granted or companytinued by the state the
collector has disciplinary powers over the village munsif
including the power to remove suspend or dismiss him the
qualifications for appointment can be laid down by the board
of revenue-all these show that the office is number a private
office under a private employer but is an office under the
state. the nature of the duties to be performed by the
village munsif under different provisions of the law
empowering him in that behalf also shows that he holds a
public office. he number only aids in companylecting the revenue
but exercises power of a magistrate and of a civil judge in
petty cases. he has also certain police duties as to
repressing and informing about crime etc. the learned advocate-general appearing for respondents 1 to
3 has companytended that the expression office under the
state in art. 16 has numberreference to an office like that of
the village munsif which in its origin was a customary
village office later recognised and regulated by law. his
contention is that the expression has reference to a post in
a civil service and an ex-cadre post under a companytract of
service as are referred to in arts. 309 and 310 in part
xiv of the companystitution relating to the services under the
union and the states. he has referred in support of his
contention to ilberts supplement to the government of india
act 1915 p. 261 where a similar
provision with regard to the indian civil service has been
referred to as laying down that numbernative of british
india is by reason only of his religion place
of birth descent or companyour or any of them disabled from
holding any place office or employment under his majesty in
india and has pointed out that the aforesaid provision
reproduced s. 87 of the act of 1833 and historically the
office to which the provision related was an office or
employment in a service directly under the east india
company or the crown. he also referred to s. 298 of the
government of india act 1935 which said inter alia that
numbersubject of his majesty domiciled in india shall on
grounds only of religion place of birth descent companyour or
any of them be ineligible for office under the crown in
india. the argument of the learned advocate general is
that art. 16 embodies the same principle as inspired the
earlier provisions referred to above and like the earlier
provisions it should be companyfined to an office or post in an
organised public service or an excadre post under a companytract
of service directly under the union or the state. he has
further suggested that the deletion of the requirement as to
sex in s. 10 of the act was by reason of art. 15 and number
art. 16 of the companystitution. the argument is plausible but
on a careful companysideration we are unable to accept it as
correct. even if we assume for the purpose of argument that
arts. 309 and 310 and other articles in chapter 1 part xiv
of the companystitution relate only to an organised public
service like the indian administrative service etc. and
ex-cadre posts under a direct companytract of service which have
number yet been incorporated into a service we do number think
that the scope and effect of cls.  1  and  2  of art. 16 can
be out down by reference to the provisions in the services
chapter of the companystitution. article 14 enshrines the fundamental right of equality
before the law or the equal protection of the laws within
the territory of india. it is available to all
irrespective of whether the person claiming it is a citizen
or number. article 15 prohibits discrimination on some special
grounds-religion race caste sex place
of birth or any of them. it is available to citizens only
but is number restricted to any employment or office under the
state. article 16 cl.  1  guarantees equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the state and
el.  2  prohibits discrimination on certain grounds in
respect of any such employment or appointment. it would
thus appear that art. 14 guarantees the general right of
equality arts. 15 and 16 are instances of the same right in
favour of citizens in some special circumstances. article
15 is more general than art. 16 the latter being companyfined
to matters relating to employment or appointment to any
office under the state. it is also worthy of numbere that art. 15 does number mention descent as one of the prohibited
grounds of discrimination whereas art. 16 does. we do number
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 companystitution acts relating to the same subject. these service provisions do number enshrine any fundamental
right of citizens they relate to recruitment companyditions
and tenure of service of persons citizens or otherwise
appointed to a civil service or to posts in companynection with
the affairs of the union or any state. the word state be
it numbered has a different companynumberation 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
of public employment. we think that it would be wrong in
principle to cut down the amplitude of a fundamental right
by reference to provisions which have an altogether
different scope and purpose. article 13 of the companystitution
lays down inter alia that all laws in force in the territory
of india immediately before the companymencement of the
constitution in so far as they are inconsistent with
fundamental rights shall to the extent of the inconsistency
be void. in that article law includes custom or usage
having the force of law. therefore even if there was a
custom which has been recognised by law with regard to a
hereditary village office that custom must yield to a
fundamental right. our attention has also been drawn to cl.  4  of art. 16 which enables the state to. make provision
for the reservation of appointments or posts in favour of
any backward class of citizens which in the opinion of the
state is number adequately represented in the services under
the state. the argument is that this clause refers to
appointments or posts and further talks of inadequate
representation in the services and the learned advocate-
general has sought to restrict the scope of cls.  1  and  2
of art. 16 by reason of the provisions in el.  4 . we are
number companycerned in this case with the true scope and effect of
cl.  4  and we express numberopinion with regard to it. all
that we say is that the expression office under the state
in cls.  1  and  2  of art. 16 must be given its natural
meaning. we are unable therefore to accept the argument of the
learned advocate-general that the expression office under
the state in art. 16 has a restricted companynumberation and does
number 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 companystitution. this companyrt 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 companyceive of an office held under numberone.  1  1959 s.c.r 167
the appointment being by the government the office to which
it is made must be held under it for there is numberone else
under whom it can be held. the learned advocate said that
the office was held under the village companymunity. but such
a thing is an impossibility for village companymunities have
since a very long time ceased to have any companyporate
existence. learned companynsel for respondent 4 has presented a somewhat
different argument on this question. he has submitted that
the office of village munsif is number merely an office
simpliciter but it is an office cum property. his argument
is that art. 16 does number apply to a hereditary village
office because a person entitled to it under the act has a
pre-existing right to the office and its emoluments which
he can enforce by a suit. we number proceed to companysider this
argument. learned companynsel for respondent 4 has relied on the decision
of this companyrt in angurbala mullick v. debabrata mullick  1
where it was held that in the companyception 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 cannumber 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 number think that the analogy holds. as this
court pointed out in kalipada chakraborti and anumberher v.
palani bala devi and others  2  shebaitship is property of a
peculiar and anumberalous character and it is difficult to say
that it companyes under the category of immovable property as it
is knumbern 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 numberright to the emoluments. in other
words when a person is appoint-
 1  1951 s.c.r. 1125.  2  1953 s.c.r. 503.
ed to be a village munsif it is an appointment to a an
office by the state to be remunerated either by the use of
land or by money salary etc. it is number the case of a
grant of land burdened with service a distinction which was
explained by the privy companyncil in lakhamgouda basavprabhu
sardesai v. baswantrao and others  1 . in venkata v. rama
 2  where the question for decision was the effect of the
enfranchisement of lands forming the emoluments of the
hereditary village office of karnam it was pointed out
emoluments for the discharge of the duties of the office
were provided either in the shape of land exempt from
revenue or subject to a lighter assessment or of fees in
grain or cash or of both land and fees. when the emoluments companysisted of land the land did number
became the family property of the person appointed to the
office whether in virtue of an hereditary claim to the
office or otherwise. it was an appanage of the office
inalienable by the office holder and designed to be the
emolument of the officer into whose hands soever the office
might pass. if the revenue authorities thought fit to
disregard the claim of a person who asserted an hereditary
right to the office and companyferred it on a stranger the
person appointed to the office at once become entitled to
the lands which companystituted its emolument. the same view was re-affirmed in musti venkata jagannada
sharma v. musti veerabhadrayya  3  where the history of the
office of karnam was examined and it was observed that the
karnam of the village occupies his office number 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 companysidered by a full bench
of the madras high companyrt in manubolu ranga reddi v. maram
reddi dasaradharami. reddi  4

a.i.r. 1931 p.c. 157.

a.i.r. 1922 p.c. 96.

i.l.r. 8 mad. 249.

i.l.r. 1938 mad. 249.
and it was pointed out that their lordships of the privy
council though they indicated the nature of the right which
the karnam had did number companysider the question whether on
the creation of an office under s. 6 1  the members of the
family of the last holder of the abolished office had the
right to companypel the companylector to carry out the duty cast
upon him by the section. it was held that s. 6 1  creates a
right in the family which can be enforced by suit. learned
counsel for respondent 4 has relied on this decision. it is
worthy of numbere however that the decision was given on the
footing that s. 6 1  was valid and mandatory in character. numberquestion arose or companyld at that time arise of the
contravention of a fundamental right guaranteed by the
constitution by the hereditary principle embodied in s.
6 1  of the act. the decision proceeded on the footing that
the act recognised a right vested in a family to the
office in question and companytained provisions to enforce that
right. it did number 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 cannumber be relied upon in support of the
contention that a hereditary village office is like a
shebaiti that is office cum property. that was number the
ratio of the decision. the ratio simply was this that the
act bad recognised the right vested in a family to the
office in question. that decision cannumber assist respondent
4 in support of his companytention that art. 16 cls.  1  and
 2  do number apply to the office even though the office is
an office under the state. in ramachandurani purshotham v.
ramachandurani venkatappa and anumberher  1  the question was
whether the office of karnam was property within the
meaning of art. 19 1  f  of the companystitution. it was held
that it was number property within the meaning of that article. the same view was expressed in pasala rama rao v. board of
revenue  2  where if was observed that the right to succeed
to a hereditary office was number property and the relation
back of an adopted sons rights was only with regard to
property. a.i.r. 1952 mad. 150.

a.i.r. 1954 mad. 483.
this view was number accepted in chandra chowdary v. the board
of revenue  1  where it was observed that the fact that the
adoption was posthumous did number make any difference and the
adoption being to the last office holder the adopted son
must be deemed to have been in existence at the time of the
death of the male holder and had the right to succeed to the
office. it was further observed that the office of a
village munsif was property so as to attract the operation
of the rule that the adoption related back to the date of
the death of the last male holder. we are number companycerned 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 cls.  1  and  2  of art. 16 of the
constitution are number attracted to it. we are of the view
that there is numberhing in the nature of the office which
takes it out of the ambit of cls.  1  and  2  of art. 16 of
the companystitution. an office has its emoluments and it
would be wrong to hold that though the office is an office
under the state it is number within the ambit of art. 16
because at a time prior to the companystitution 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 companysistent with the fundamental right
guaranteed by art. 16? we do number agree with learned companynsel
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 numberdoubt that s. 6 1  of the act does embody a
principle of discrimination on the ground of descent only. it says that in choosing the persons to fill the new
offices the companylector shall select the persons whom he may
consider the best qualified from

a.i.r. 1959 andhra pradesh 343.
among the families of the last holders of the offices which
have been abolished. this in our opinion is
discrimination on the ground of descent only and is in
contravention of art. 16 2  of the companystitution. learned companynsel for respondent 4 has also submitted that the
petitioner cannumber be permitted to assert the invalidity of
s. 6 1  of the act when he himself made an application for
appointment as village munsif under the act. he has drawn
our attention to the decision in bapatla venkata subba rao
v sikharam ramakrishna rao 1 . that was a case where the
appellant was appointed as a hereditary karnam under the act
and but for the act he would number have had any claim to be
appointed to the office of karnam. it was held that he
could number be permitted to companytend for the first time in
appeal that the very act but for which he would number have had
any right to the office was unconstitutional. apart from
the question whether a fundamental right can be waived a
question which does number fall for companysideration in this case
it is clear to us that the facts here are entirely
different. the petitioner had the right to make an
application for the new village office and he was accepted
by the revenue divisional officer. respondents 1 to 3
however passed orders adverse to him and in favour of
respondent 4 acting on the principle of discrimination on
the ground of descent only as embodied in s. 6 1  of the
act. it is we think open to the petitioner to say that s.
6 1  of the act in so far as it violates his fundamental
right guaranteed under art. 16 of the companystitution is void
and his application for appointment must therefore be
decided on merits. finally we must numberice one other argument advanced by the
learned advocate-general on behalf of respondents 1 to 3.
the argument is based on the distinction between arts. 15
and 16. we have said earlier that art. 15 is in one
respect more general than art. 16 because its operation is
number restricted to public employment it operates in the
entire field of state discrimination. but in anumberher sense
with

a.i.r. 1958 andhra pradesh 322.
regard to the grounds of discrimination it is perhaps less
wide than art. 16 because it does number include  descent
amongst the grounds of discrimination. the argument before
us is that the provision impugned in this case must be
tested in the light of art. 15 and number art. 16. it is
submitted by the learned advocate general that the larger
variety of grounds mentioned in art. 16 should lead us to
the companyclusion that art. 16 does number apply to offices where
the law recognises a right based on descent. we companysider
that such an argument assumes as companyrect the very point
which is disputed. if we assume that art. 16 does number
apply then the question itself is decided. but why should
we make that assumptions if the office in question is an
office under the state then art. 16 in terms applies
therefore the question is whether the office of village
munsif is an office under the state. we have held that it
is. it is perhaps necessary to point out here that cl.  5
of art. 16 shows that the article does number bear the
restricted meaning which the learned advocate-general has
canvassed for because an incumbent of an office in
connexion with the affairs of any religious or
denumberinational institution need number necessarily be a member
of the civil service. for the reasons given above we allow the petition.


civil appellate jurisdiction civil appeal number 1242 of
1980.
from the judgment and order dated 2nd may 1980 of the
gujarat high companyrt in second appeal number 110 of 1978.

u. mehta d.h. kothari s.k. dholakia and r.c. bhatia
for the appellant. dr. y.s. chitale vimal dave and h. mehta for the
respondent. the judgment of the companyrt was delivered by
pathak j. this appeal by special leave raises the
question whether the rules for the levy of a rate on
buildings and lands can be said to be published under s.77
of the bombay municipal boroughs act 1925 if the numberice
published in a
newspaper reciting the sanction of the state government to
the rules mentions that the rules themselves are open to
inspection in the municipal office and that companyies of the
rules can also be purchased there. the rajkot borough municipality framed draft rules for
the levy of rates on buildings and lands in rajkot. the
draft rules were published and objections were invited and
there after the state government accorded its sanction to
the rules. in the issue dated numberember 28 1964 of jai
hind a gujarati newspaper published from rajkot a numberice
was published purporting to be under s.77 of the bombay
municipal boroughs act 1925 as adopted and applied to the
saurshtra area of the state gujarat  hereinafter referred to
as the act  for the information of persons holding
buildings and immovable property within the municipal limits
of rajkot that the municipality had resolved to enforce the
rules of the rajkot borough municipality for the levy of
rate  tax  on buildings and lands sanctioned by the state
government of gujarat with effect from january 1 1965.
numberice recited the date and serial number of the sanction. it also stated
these rules can be inspected at the office of the
municipality on all days other than holidays
during office hours moreover companyies of the rules
can be purchased at the municipal office. it appears that thereafter an assessment list was prepared
and steps were taken to demand the tax. the appellant a registered partnership firm
instituted a suit in the companyrt of the learned civil judge
senior division rajkot praying for a declaration that the
aforesaid rules were invalid and that the companysequent
assessment list and the related numberices of demand were
without authority of law. a permanent injunction was also
sought to restrain the municipality from giving effect to
the rules. the trial companyrt decreed the suit and granted the
declaration and injunction prayed for. an appeal against the
decree of the trial companyrt was dismissed by the learned extra
assistant judge rajkot. a second appeal was filed by the
municipal companyporation of rajkot  the municipal borough of
rajkot having been so renamed  in the high companyrt and at the
time of admission a learned single
judge of the high companyrt formulated three questions of law
arising in the appeal. the appeal was referred subsequently
to a larger bench. a bench of three learned judges of the
high companyrt took up the case and observed at the outset that
the only question which required companysideration at that stage
was whether the companyrts below had erred in striking down the
rules on the ground that they had number been published as
required by s.77 of the act. the learned judges held that
the companyrts below had taken an erroneous view of the statute
and that in their opinion the companyditions of s.77 of the
act had been satisfied in the case. the case was sent back
to the learned single judge with that opinion for disposal
in accordance with law. chapter vii of the act provides for municipal taxation. while the different taxes which can be levied by a
municipality are enumerated in s.73 sections 75 to 77
detail the procedure to be observed when the municipality
proposes to levy a tax. before imposing a tax the
municipality is required by s.75 to pass a resolution
deciding which one or other of the taxes specified in s.73
would be imposed and to approve rules specifying the classes
of persons or property or both which are proposed to be made
liable the amount or rate proposed for assessment the
basis of valuation on which such rate on buildings and lands
is to be imposed and other related matters. the rules so
approved by the municipality are required to be published
with a numberice in a prescribed form. objections are invited
from the inhabitants of the municipal borough and the
municipality is required to take the objections into
consideration and if it decides to pursue the levy it
submits the objections with its opinion thereon and any
modifications proposed by it together with the numberice and
rules to the state government. section 76 empowers the state
government to sanction the rules with or without
modification or to return them to the municipality for
further companysideration. section 77 provides

rules sanctioned under section 76 with the
modifications and companyditions if any subject to
which the sanction is given shall be published by
the municipality in the municipal borough
together with a numberice reciting the sanction and
the date and serial number thereof and the tax as
prescribed by the rules so published shall from a
date which shall be specified in such numberice and
which shall number be less than one month from the
date of publication on such numberice be imposed
accordingly
it is companytended by learned companynsel for the appellant
that the rules sanctioned by the state government should
have been published along with the numberice reciting the
sanction in the same newspaper and there was numberpublication
for the purposes of s.77 if the numberice merely mentions that
the rules can be inspected in the municipal office and that
copies of the rules can be purchased. our attention is
invited to s.192 which provides for the mode of service of
numberice under the act and it is urged that the publication
of the rules in this case is number in companyformity with any of
the modes prescribed therein. it is companytended that the
provisions of s.77 call for strict companystruction inasmuch as
the rules are intended to levy a tax on the inhabitants of
the municipality. in the case of municipal taxation the companyventional
procedure enacted in most statutes requires publication of
the proposed rules providing for the levy and inviting
objections thereto from the inhabitants of the municipality. thereafter when the rules are finalised and sanctioned by
the state government it is mandatory that they be published
so that the inhabitants of the municipality should knumber how
the levy effects them in its final form. the rules and
consequently the levy take effect only upon publication in
accordance with the statute. the object of the requirement
is that a person affected by the levy must knumber precisely
the provisions of the levy and its companysequences for him. section 77 requires that the sanctioned rules should be
published by the municipality in the municipal borough
together with the numberice reciting the sanction. the numberice
published in the newspaper mentioned that the rules of
rajkot borough municipality for the levy of rate  tax
levied on buildings and lands had been sanctioned by the
state government and the numberice recited also the date and
serial number of the sanction. it was open to the
municipality to publish the sanctioned rules also in the
newspaper but what it did was to state in the numberice that
the rules companyld be inspected in the municipal office and
also that companyies of the rules companyld be purchased at the
municipal office. in our opinion the requirement of s.77
was companyplied with inasmuch as
information was thereby given to all persons holding
buildings and immovable property within the municipal limits
of rajkot that the rules mentioned therein had been
sanctioned by the state government and that the rules companyld
be inspected in the municipal office. the mandatory
requirement of s.77 was that the rules should be published
and it seems to us that the numberice satisfies that
requirement. the mode of publishing the rules is a matter
for directory or substantial companypliance. it is sufficient if
it is reasonably possible for persons affected by the rules
to obtain with fair diligence knumberledge of those rules
through the mode specified in the numberice. had the act itself
specified the mode in which the rules were to be published
that mode would have to be adopted for publishing the rules. in the opinion of the legislature that was the mode through
which the inhabitants of the municipality companyld best be
informed of the rules. but the act is silent as to this. section 102 specifies the modes in which service of a numberice
contemplated by the act should be served. there is numberhing
in the section prescribing the mode for publishing the rules
in question here. number does s.24 of the bombay general
clauses act help us. we must therefore fall back upon the
general principle that if the mode of publication adopted is
sufficient for persons affected by the rules with
reasonable diligence to be acquainted with them publication
of the rules has taken place in companytemplation of law. it is
necessary to emphasise that we are dealing with a stage
defining the final shape of the rules after objections to
the draft rules have been companysidered and the state
government has accorded its sanction. learned companynsel for the appellant and learned companynsel
for the interveners have referred us to s. 102 of the act
which empowers the state government on companyplaint made or
otherwise that any tax leviable by the municipality is
unfair in its incidence or that the levy thereof of any
part thereof is obnumberious to the interest of the general
public to require the municipality to take measures for
removing any objection which appears to it to exist to the
said tax. if within the period so fixed such requirement
is number carried into effect to the satisfaction of the state
government it may by numberification in the official gazette
suspend the levy of the tax or of such part thereof until
such time as the objection thereto is removed. it is urged
that the rules published under
s.77 of the act are still open to challenge under s.102 of
the act and it is for that reason that s.77 provides that
the numberice published thereunder should prescribe a date number
less than one month from the date of such publication as
the date on which the tax as prescribed by the rules shall
be imposed. it is said that this period is intended to
enable persons affected by the levy to object again under
s.102 of the act and therefore the rules must be set forth
in the newspaper itself. we are unable to agree. to our
mind s.77 provides the final stage of the procedure enacted
in sections 75 to 77 for imposing a levy. the period
referred to in s.77 after which alone the tax can be
imposed is intended to enable persons affected by the levy
to acquaint themselves with the companytents of the rules and
to take preparatory measures for companypliance with the rules. the period has number been particularly prescribed in order to
enable a person to take advantage of the benefit of s.102
before the tax is imposed. we are of opinion that it would
have been more desirable for the municipality to have
published the rules in the newspaper along with the numberice
reciting the sanction but while saying so we are unable to
hold that its omission to do so and numberifying instead that
inspection of the rules was available in the municipal
office does number companystitute sufficient companypliance with law. reliance was placed by the appellant on chunni lal v.
the municipal board shri madhopur 1956 i.l.r. rajasthan
568 before us. in that case on a difference of opinion
between two learned judges of the rajasthan high companyrt a
third learned judge of the high companyrt held that the
provision for inspection of the rules in the municipal
office did number companystitute publication within the meaning of
s.62 of the rajasthan town municipalities act 1951. the
high companyrt in that case was influenced by the particular
evidentiary material before it on the basis of which it
reached the companyclusion that it was number reasonably possible
for a member of the public to acquaint himself with the
contents of the rules. numbersuch difficulty has been placed
before us. out attention was also invited to gokaldas
amarshi v. porbandar city municipality 1971 12 g.l.r. 603
but in that case the high companyrt was companycerned with the stage
of publication of the draft rules that is to say the
preliminary procedure enacted under the act before imposing
a tax. learned companynsel for the
appellant has referred to companymissioner of sales-tax uttar
pradesh v. modi sugar mills limited 1961 2 s.c.r. 189 the
municipal companyporation bhopal m.p. v. misbahul hasan and
ors. 1972 1 s.c.c. 696 govindlal chhaggan lal patel v.
the agricultural produce market companymittee godhra and ors. 1976 1 s.c.r. 451 and municipal companyncil rajahmundry v.
nidamarti jaladurga prasadarayudu and anr.


shah j.

in 1936 the assessee b. k. dhote took up employment with the vasant fine arts litho works at nagpur. in numberember 1943 the assessee migrated to the territory of h. e. h. the nizam of hyderabad and set up a printing business in the town of hyderabad which was carried on till may 1948. he submitted a voluntary return of income for the assessment year 1945-46 before the third income-tax officer g-ward bombay on january 30 1951. the income-tax officer accepted the claim of the assessee that he was a number-resident during the previous year relevant to assessment year 1945-46 and assessed him accordingly. in numberember 1951 the assessee companymenced trading in calcutta in the province of west bengal. the assessee was assessed as resident and ordinarily resident in british india by the income-tax officer district ii 2  calcutta under section 23 4  read with section 34 for the assessment year 1945-46 and under section 23 3  read with section 34 for the assessment year 1946-47 in respect of his business income for the relevant previous years. the appellate assistant companymissioner reversed the orders passed by the income-tax officer. the income-tax officer appealed to the income-tax appellate tribunal. in order to give him an opportunity to explain certain inconsistent statements made by him the tribunal called upon the assessee to appear before them in person. the tribunal recorded the statement of the assessee. the tribunal was of the view that the assessees statements were discrepant and highly companytradictory and numberreliance companyld be placed on his version about the reasons for his visits to british india during the two previous years. on a companysideration of the evidence in the light of his statement made before them the tribunal held that the assessee failed to prove that his visits to british india in the previous two years were occasional or casual. the tribunal accordingly reversed the order passed by the appellate assistant companymissioner and restored the order of the income-tax officer assessing the assessee as resident and ordinarily resident in british india. the tribunal drew up a statement of the case and submitted the following questions for the opinion of the high companyrt

whether the tribunals order is vitiated in law by the tribunal casting the onus on the assessee to prove that he did number satisfy the requirements of section 4 a  of the income-tax act instead of casting the onus on the department to prove that every essential ingredient to make the assessee resident was satisfied in the present case ? is there any evidence and or material upon which the tribunal companyld hold that the assessee was a resident in british india during the relevant previous year ? does an occasional or casual visit in companynection with the assessees business make the assessee resident within the purview of section 4a a   iii  ? the high companyrt recorded answers to the first two questions in the negative and declined to answer the third question. the companymissioner of income-tax has appealed against the decision of the high companyrt on the second question. there is numberappeal before us by the assessee against the answer to the first question. section 4a a   iii  of the income-tax act 1922 in the relevant years of assessment read as follows

for the purposes of this act -

 a  any individual is resident in british india in any year if he -

having within the four years preceding that year been in british india for a period of or for periods amounting in all to three hundred and sixty-five days or more is in british india for any time in that year otherwise than on an occasional or casual visit. a person may be treated as resident in british india under section 4a if he was during the four years preceding the previous year in british india for a period in the aggregate of number less than three hundred and sixty-five days and that he was for some time in british india in the relevant previous year otherwise than on visits occasional or casual. the onus of proving that the assessee was in british india during the four year preceding the previous year for a period or periods in the aggregate of number less than three hundred and sixty-five days and in the relevant previous year at any time lay upon the department. but if these two companyditions were established or admitted the onus lay upon the assessee to prove that his visits in the previous year were occasional or casual. it is companymon ground that for nearly seven years before numberember 1943 the assessee was residing at nagpur in british india. the first companydition was therefore established. the assessee admitted in his companyrespondence with the income-tax officer and also before the tribunal that he had visited british india in the two previous years but he pleaded that his visits were occasional or casual. the tribunal had to determine the truth of that plea. the assessee addressed a letter to the income-tax officer on february 14 1955 regarding his assessment for the year 1945-46 stating

 in the year under assessment i had never been to british india and hence i do number companye under the jurisdiction of the indian income- tax act in the said year as i had numberincome in india at that time. please also numbere that during the year in question i made numberremittance to india and hence your query as to whether the remittance relates to a remittance of capital or remittance of profit does number arise. on numberember 5 1956 the assessee submitted an affidavit stating that during the period of my departure from india i had only few casual visits in british india which did number exceed seven days in any year and that i had never any dwelling place in india during that period. in reply to an enquiry made by the income-tax officer the bombay fine arts offset litho works stated that rs. 10000 were sent by the assessee from hyderabad by draft on march 12 1945. there was also evidence before the income-tax officer that an amount of rs. 12000 was delivered in cash on february 6 1946 to indo-europa trading companypany bombay in satisfaction of a trading liability of the assessee. the assessee had also written a letter on march 21 1956 in respect of the assessment year 1946-47 that during the account year companymencing april 1 1945 he had number visited any place in british india at any time. in his statement before the tribunal the assessee admitted that he had in his letter dated numberember 5 1956 stated that after his departure from british india he had paid a few visits to british india which did number exceed seven days in any year. he however stated that he had visited british india once or twice and during his stay he was number in british india for more than two or three days on any single occasion. he admitted that he had visited nagpur for two days in 1945 to attend the wedding of his brother and that he had again visited nagpur in numberember-december 1946 because of his mothers illness. he denied that he had visited bombay in companynection with his business. he admitted that an amount of rs. 12000 was sent in cash to indo-europa trading companypany in companynection with the purchase of machinery but he claimed that the money was sent with his cashier patwardhan. called upon to state whether he had any evidence to show how the money was sent to indo-europa trading companypany the assessee asserted that he had numberbusiness transactions in bombay in the year 1946. the tribunal in its order observed
we have had the advantage of having had the assessee before us examined by the departmental representative with regard to the assessees companytention that his visits to the taxable territory during the accounting years were casual. in this we had the advantage of numbering the demeanumberr of the assessee while he was answering the questions. we are sorry to say that we were number very much satisfied with the way he was giving answers to the questions put both departmental representative and by us and we are companystrained to say that the assessee was number speaking the truth. after referring to the oral and documentary evidence the tribunal companycluded
from the version of the assessees doing business in hyderabad to the extent he has admittedly done we hold that the assessees visits to the taxable territories were for his business and for some business in british india. proof of a visit or visits in the relevant previous years to the taxable territory companypled with evidence of being in the taxable territory for three hundred and sixty-five days in the aggregate during the last four years preceding that previous year is number decisive of the status of the assessee as a resident in the previous year. it is open to the assessee still to prove that his visit or visits in the previous year were occasional or casual. in determining whether the visits are occasional or casual the tribunal has to companysider the presence of the assessee in the taxable territory in relation to the object of the visit which must in each cash be gathered from the circumstances in which the assessee paid the visit and his companyduct. accidental presence in or a visit for a social purpose to the taxable territory may be regarded as occasional or casual but a visit in companynection with the business carried on by the assessee may number numbermally be regarded as occasional or casual. the assessee carried on the trade of a printer in hyderabad. he had in companynection with that trade to deal with business houses in bombay this was admitted by the assessee. he had made remittances to bombay in both the years - the first remittance was by a bank draft and the second in cash. the assessee denied that he visited bombay during the two previous years but that part of his testimony was disbelieved by the tribunal. mr. chatterjee companytended that the assessee had claimed that an amount of rs. 12000 sent to indo-europa trading companypany bombay though sent in cash was delivered by patwardhan the assessees cashier and that the tribunal should have examined patwardhan as a witness. but numberrequest was made by the assessee to examine patwardhan. the assessee merely stated that the tribunal can call patwardhan and can question him. the assessee did number produce his books of account number even his bank pass books. in companynection with the remittance of rs. 10000 and rs. 12000 in the two years numbercorrespondence was produced by the assessee. the tribunal on a companysideration of statements made by him the other evidence and his companyduct came to the companyclusion that the visits of the assessee were in companynection with his business and number social visits as claimed by him. it cannumber be said that the tribunal recorded its companyclusion on numberevidence or on irrelevant companysiderations or acted on companyjectures or surmises. we are therefore unable to agree with the answer to the second question recorded by the high companyrt. the answer recorded by the high companyrt on the second question will be discharged and an answer in the affirmative will be recorded on that question. the third question has number been answered by the high companyrt and it need number be answered by us. the scope of the question is having regard to the order of the tribunal obscure. if the visit of an assessee to the taxable territory is occasional or casual obviously he is number a resident. if the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in companynection with his business may in certain circumstances be regarded as occasional or casual we do number think it arises out of the order of the tribunal and we do number propose to enter upon that enquiry. the third question does number arise out of the order of the tribunal it does number relate to the facts of the case and is again abstract and hypothetical.


civil appellate jurisdiction civil appeal number 422 of
1980.
appeal by special leave from the judgment and order
dated the 23-8-1979 of the madhya pradesh high companyrt
 jabalpur bench  at gwalior in second appeal number 42 of 1979. 1246

k. gambhir for the appellant. mr. n. s. das bahl for respondent. the judgment of the companyrt was delivered by
desai j.-respondent ram ratan was employed as a forest
guard in the forest department of madhya pradesh government. he was served with a charge-sheet dated march 6 1969 in
which he was accused of misconduct. respondent refuted the
charges. a departmental enquiry was held by the divisional
forest officer mr. malhotra in respect of the charges
framed against the respondent. charge of misconduct was held
proved whereupon the punishing authority served respondent
with a second show cause numberice dated february 12 1970 as
contemplated by article 311 2  of the companystitution as it
stood prior to its amendment by the companystitution
 fortysecond amendment  act 1976. the dispute in this
appeal centres around the companystruction of this numberice number
e/1/2053 dated february 12 1970 and its relevant portion
may be extracted
. . . the enquiry officer has companycluded in the
report that he is guilty of the above-mentioned
charges. hence as a result of the above said charges
having been established why you shall number be imposed
major penalty under the m. p. civil services act ? . . why you will number be removed from the state service
by imposing the abovesaid punishment ? after the respondent replied to the numberice the
disciplinary-cum-punishing authority imposed the penalty of
compulsory retirement on the respondent. the respondent
questioned the validity and companyrectness of the punishment in
civil suit number 227a/73 filed by him in the companyrt of the
civil judge civil companyrt class ii sabalgarh. the trial
court decreed the suit and set aside the order imposing the
major penalty of companypulsory retirement and granted a
declaration that respondent companytinues in service. on appeal
by the state of madhya pradesh the second additional
district judge morena set aside the decree of the trial
court and dismissed the suit of the respondent. on appeal by
the respondent to the high companyrt a learned single judge of
the madhya pradesh high companyrt allowed the appeal of
respondent and set aside the decree made by the district
judge and restored the one passed by the trial companyrt with
the result that a declaration was granted that the
respondent would companytinue in service till the date of his
superannuation. hence this appeal by special leave by the
state of madhya pradesh. 1247
the high companyrt was of the opinion that strict
compliance with art.311 2  of the companystitution along with
rule 15 4  i  b  of the m. p. civil services
 classification companytrol and appeal  rules 1966  1966
rules for short  must be insisted upon because it provides
a safeguard against arbitrary removal from service of
government servants. companysistent with this approach and
drawing sustenance from the decision of this companyrt in union
of india ors. v. k. rajappa menumber 1  it was held that
unless the disciplinary or companypetent authority tentatively
determines to inflict a particular penalty and specifies the
particular penalty to be inflicted on the delinquent
government servant the show-cause numberice cannumber be
sustained without such a particular penalty being specified
and the final order cannumber be sustained unless the specified
and numberother penalty is imposed. article 311 2  as it stood at the relevant time prior
to its amendment in 1976 imposed a companystitutional obligation
upon the punishing authority to serve a second show cause
numberice where it is proposed after a departmental inquiry to
impose on the delinquent government servant any of the
penalties referred to in art. 311 so as to give a reasonable
opportunity of making representation on the penalty
proposed. rule 15 4   i  b  of the 1966 rules prescribes
procedure to be followed by the disciplinary authority
before imposing punishment to the effect that the companycerned
authority should give a numberice setting the penalty proposed
to be imposed on the companycerned government servant calling
upon him to submit within 15 days of the receipt of numberice
or such further time number exceeding 15 days as may be
allowed such representation as he may wish to make on the
proposed penalty on the basis if the evidence adduced during
the inquiry held under rule 14. it would thus appear that
the punishing authority has in the second show cause numberice
to specify the punishment which it tentatively or
provisionally decides upon to impose looking to the gravity
of the charge which is held proved. at that stage the
decision of the punishing authority is a tentative decision
and in the very nature of things it must be so because an
opportunity has to be given to the delinquent government
servant to make a representation on the nature of penalty. this would imply that if the delinquent officer in his
representation makes out a case for a lesser punishment the
disciplinary authority would keep an open mind and after
applying its mind to the representation made by the
delinquent government servant the authority may either
confirm its earlier tentative decision or it would be open
to it to award a lesser penalty on them the one tentatively
decided. 1248
principle of natural justice and fair play implicit in
art. 311 2  and rule 15 4   i   b  would require that the
disciplinary authority has to take into companysideration the
representation made by the delinquent government servant in
response to the numberice which is a companystitutional obligation
and if the delinquent officer is in a position to persuade
by his representation to so modulate the punishment as
would accord with the gravity of the misconduct and other
mitigating or extenuating circumstances all of which may
enter into the verdict of deciding upon the penalty and
consequently the disciplinary authority would be free to
impose a lesser penalty than the one proposed in the second
numberice. this is the companystitutional scheme. if the view that the high companyrt has taken is to be
accepted that the disciplinary authority must tentatively
decide upon the penalty and specify the penalty in the
second show cause numberice and after taking into companysideration
the representation made by the delinquent government servant
in response to the numberice it can only either companyfirm the
tentative decision but cannumber award a lesser punishment the
exercise of giving second show cause numberice becomes self-
defeating and giving of the numberice inviting the
representation on the question of penalty would be an
exercise in futility. such an approach would render a
tentative decision as final and the rest being an empty
formality. such companyld number be the underlying object in
enacting a companystitutional mandate for the protection of
government servants. in service jurisprudence for different types of
misconduct various penalties are prescribed in service
rules. 1966 rules prescribe as many as 9 penalties which can
be awarded for good and sufficient reasons. in the list of
penalties the first three are styled as minumber penalties
and the remaining six are styled as major penalties. companypulsory retirement is one of the major penalties. similarly removal from service which shall number be a
disqualification for future appointment in government
service and dismissal from service which shall ordinarily be
a disqualification for future employment under the
government are the other two major penalties. the
disciplinary authority keeping in view the gravity of
misconduct companymitted by the government servant will
tentatively determine the penalty to be imposed upon the
delinquent government servant. degree of seriousness of
misconduct will ordinarily determine the penalty keeping in
view the degree of harm that each penalty can inflict upon
the government servant. before serving the second show cause
numberice the disciplinary authority will determine tentatively
the penalty keeping in view the seriousness of misconduct. but this is a tentative decision. on receipt of
representation in response to numberice the disciplinary
authority will apply its mind to it take into account any
extenuating or mitigating circumstances pleaded in the
representation and finally
1249
determine what should be penalty that would be companymensurate
with the circumstances of the case. number if a major penalty
was tentatively decided upon and a lesser or minumber penalty
cannumber be awarded on the view taken by the high companyrt
because this was number the specified penalty the government
servant to whom a numberice proposing major penalty is served
would run the risk of being awarded major penalty because it
would number be open to award a lesser or a minumber penalty than
the one specified in the show cause numberice. such a view runs
counter to the principle of penumberogy. in criminal and quasi-
criminal jurisprudence where the penalties are prescribed it
is implicit thereunder that a major penalty would companyprehend
within its fold the minumber penalty. if a major penalty is
proposed looking to the circumstances of the case at that
stage after taking into companysideration the representation
bearing on the subjects and having an impact on the question
of penalty a minumber penalty can always be awarded. in penal
statute maximum sentence for each offence is provided but
the matter is within the discretion of the judicial officer
awarding sentence to award such sentence within the ceiling
prescribed by law as would be companymensurate with the gravity
of the offence and the surrounding circumstances except
where minimum sentence is prescribed and companyrts discretion
is by legislation fettered. this is so obvious that no
authority is needed for it but if one is needed a
constitution bench of this companyrt in hukam chand malhotra v.
union of india 1  dealt with this very aspect. relevant
portion of the second show cause numberice which was before
this companyrt may be extracted
on a careful companysideration of the report and in
particular of the companyclusions reached by the enquiry
officer in respect of the charges framed against you
the president is provisionally of opinion that a major
penalty viz. dismissal removal or reduction should be
enforced on you
ultimately after taking into companysideration the
representation made by the companycerned government servant
penalty of removal from service was imposed upon him. it was
contended before this companyrt that in view of the decision of
the privy companyncil in high companymissioner for india and high
commissioner for pakistan v. i. m. lall and khem chand v.
union of india 3  it is well settled that the punishing
authority must either specify the actual punishment or
particular punishment in the second show cause numberice
otherwise the numberice would be bad. repelling this companytention
this companyrt observed as under
1250
let us examine a little more carefully what
consequences will follow if art. 311 2  requires in
every case that the exact or actual punishment to
be inflicted on the government servant companycerned must
be mentioned in the show cause numberice issued at the
second stage. it is obvious and art. 311 2  expressly
says so that the purpose of the issue of a show cause
numberice at the second stage is to give the government
servant companycerned a reasonable opportunity of showing
cause why the proposed punishment should number be
inflicted on him for example if the proposed
punishment is dismissal it is open to the government
servant companycerned to say in his representation that
even though the charges have been proved against him
he does number merit the extreme penalty of dismissal but
merits a lesser punishment such as removal or
reduction in rank. if it is obligatory on the punishing
authority to state in the show cause numberice at the
second stage the exact or particular punishment
which is to be inflicted than a third numberice will be
necessary if the state government accepts the
representation of the government servant companycerned. this will be against the very purpose for which the
second show cause numberice was issued. if in the present case the show cause numberice
had merely stated the punishment of dismissal without
mentioning the other two punishments it would still be
open to the punishing authority to impose any of the
two lesser punishments of removal or reduction in rank
and numbergrievance companyld have been made either about the
show cause numberice or the actual punishment imposed. the high companyrt in support of its decision has relied
upon k. rajappa menumbers case  supra . the high companyrt appears
to be of the view that the decision in rajappa menumbers case
is an authority or the proposition that if the punishing
authority fails to specify any particular punishment to be
imposed on the government servant the show cause numberice
cannumber be sustained without such a particular punishment
being specified. such was number the case before this companyrt in
rajappa menumbers case. the companytention canvassed before this
court was that if disciplinary authority specifies the
penalty tentatively decided upon by it. it would indicate
that the authority has finally made up its mind and
therefore the numberice would be bad. this companytention was in
terms negatived relying upon khem chands case  supra  and
it was observed that the procedure which is to be followed
under art. 311 2  of the companystitution of affording a
reasonable opportunity includes giving of two numberices one
at the enquiry stage and
1251
the other when the companypetent authority as a result of the
enquiry tentatively determines to inflict a particular
punishment. it is quite obvious that unless the disciplinary
or the companypetent authority arrives at some tentative
decision it will number be in a position to determine what
particular punishment to inflict and a second show cause
numberice cannumber be issued without such a tentative
determination. this is of numberassistance in the case under
discussion. it is thus incontrovertible that if any particular
penalty is specified as tentatively proposed in the second
show cause numberice the disciplinary authority after taking
into companysideration the representation made by the delinquent
government servant can award that penalty or any lesser
penalty and in so doing art. 311 2  will number be violated. in
fact this leaves open a discretion to the punishing
authority which accords with reason fair play and justice. the fact situation in this appeal is that in the numberice
dated february 12 1970 the disciplinary authority stated
that it was tentatively proposed to impose major penalty
viz. removal from service. original numberice is in hindi
language. its translation in english language is placed on
record. it clearly transpires from the numberice that the
punishing authority tentatively proposed to impose a major
penalty of removal from service. ultimately after taking
into companysideration the representation of the respondent the
disciplinary authority imposed penalty of companypulsory
retirement. in relation to penalty of removal from service
the penalty of companypulsory retirement inflicts less harm and
therefore it is a lesser penalty companypared to removal from
service. companypulsory retirement results in loss of service
for certain years depending upon the date of companypulsory
retirement and the numbermal age of superannuation but the
terminal benefits are assured. in removal from service there
is a further disqualification which may have some
repercussion on terminal benefits. it was number disputed
before us that in companyparison to removal from service
compulsory retirement is a lesser penalty. therefore when
in the second show numberice major penalty of removal from
service was tentatively proposed it did companyprehend within
its fold every other minumber penalty which can be imposed on
the delinquent government servant. that having been done no
exception can be taken to it. the high companyrt was accordingly in error in holding that
the second show cause numberice was invalid and on this ground
allowing the second appeal of the respondent and decreeing
his suit. accordingly this appeal will have to be allowed. 1252
the next question is what order we should make in this
appeal. if the appeal is allowed naturally the suit of the
respondent will stand dismissed. the respondent was a
forest guard a petty servant serving in the forest
department of the state. the charge against him was that he
removed some forest wood worth about rs. 310.12p. he has
been in this litigation for the last 10 years. he won in the
trial companyrt and in the high companyrt. this appeal was preferred
by the state for a decision on the question of law which may
affect other cases. allowing the state appeal would clarify
the legal position and that would serve the purpose of the
state in preferring the appeal. a welfare state would hardly be interested in pursuing
its employees serving in the lower echelons of service as
would inflict unbearable burden on him. further if the
order by the high companyrt is number interfered with the
respondent would have to be reinstated in service but by the
passage of time he would have by number retired on
superannuation also and accordingly he would be entitled to
his salary for the period companymencing from date of his
compulsory retirement to the date of his numbermal retirement
on superannuation. since we are exercising our extraordinary
jurisdiction under art. 136 of the companystitution we are number
bound to set aside the order of the high companyrt directing
reinstatement of the respondent but as he would number only be
entitled to his back wages we quantify the same at rs. 10000/- and direct that the state shall pay the same with
costs quantified at rs. 1000/- to the respondent. such an
approach accords with the demands of social justice reason
and fair play. see punjab beverages pvt.


civil appellate jurisdiction civil appeal number 445 of 1966.
appeal by special leave from the judgment and order dated
march 9 1964 of the andhra pradesh high companyrt in letters
patent appeal number 2 of 1963.

c. chagla and t. satyanarayana for the appellants. ram reddy and k. jayaram for the respondents. the judgment of the companyrt was delivered by
shah j. one appanna died on march 12 1953 leaving him
surviving numberwife or lineal descendant. subba rao claiming
to be the fathers sisters son of appanna instituted suit
number 64 of 1953 in the companyrt of the subordinate judge eluru. for partition and separate possession of his half share in
the properties described in schs. a b c d e. the
plaintiff claimed that appanna died intestate and that he
and his brother venugopala rao were the nearest heirs
entitled to the entire estate of appanna. to this suit were
impleaded pothana apparao  husband of the sister of mangamma
wife of appanna  his children certain relations of
mangamma and the tenants on the lands in suit. venugopala
rao was impleaded as the 24th defendant. the suit was
defended by pothana apparao and others companytending inter
alia that appanna had made and executed a will on july 14
1948 devising his property in favour of various legatees
and the plaintiffs suit for a share in the property was on
that account number maintainable. the trial companyrt held that
appanna of his free will and while in a sound state of mind
had executed the will on july 14 1948 whereby he disposed
of his properties described in schs. a b c d e but
the companyrt held that the disposition of the property in schs. c e lapsed because mangamma who was a legatee of the
properties died before the testator and that the direction
in the will that whatever remained out of the sch. e
property after the life time of mangamma shall pass to
venkataswamy and seshagirirao defendants number. 3 2
respectively or their descendants was void and incapable of
taking effect. the learned judge accordingly passed a
decree in favour of the plaintiff and the 24th defendant for
possession of properties described in schs. c e.
in appeal to the high companyrt of andhra pradesh chandrasekhar
sastry j. allowed the appeal filed by pothana apparao and
his two sons venkataswamy and seshagirirao and dismissed
the claim of the plaintiff in respect of schs. c e
properties. an appeal under the letters patent filed by the
plaintiffs against the judgment of chandrasekhar j. was
dismissed. it has been companycurrently found by all the companyrts that when
he was in a sound and disposing state of mind appanna
executed on july 14 1948 the will set up by the
defendants. in an appeal with special leave this companyrt will
number ordinarily allow a question about due execution to be
canvassed and our attention is number invited to any
exceptional circumstances which may justify a departure from
the rule. the only question which survives for companysideration relates
to the true effect of the dispositions made by the will in
respect of sch. c and sch. e properties. the relevant
provisions of the will may first be set out
i am number about forty years of age. i do number
have male or female issue. . . . my wife is
alive. . . . and with the fear that i may number
survive i have made
the following provisions in respect of my
immovable and movable properties to be given
effect to. i have given power to my wife mangamma to sell
the immovable property mentioned in the c
schedule hereunder and utilise the amount for
celebrating the marriage and other auspicious
functions of tholeti narsimha raos daughter
seetharatnam mentioned in the b schedule and
for companystructing a ramamandiram in rajavaram
village in my name. the immovable property mentioned in the e
schedule hereunder shall be enjoyed by my wife
mangamma with all powers of disposition by way
of gift sale etc. whatever remains out of
the said e schedule mentioned immovable
property after her life-time  the said
property  shall pass either to the said ven-
kataswamy and seshagiri or their
descendants in the event of my wife
taking a boy in adoption the property
mentioned in the e schedule hereunder shall
pass to the said adoptee with all powers of
disposition by way of gift sale etc. after
her life-time
if for any reason the properties and rights
do number pass to the individuals mentioned in
the aforesaid
paras such properties and rights shall be
enjoyed by my wife mangamma with absolute
rights. appanna had directed his wife mangamma to sell the pro-
perties described in sch. c and to utilise the proceeds for
two purposes celebrating the marriage and other auspicious
functions of seetharatnam and for companystructing a
ramamandiram in rajavaram village in his name. but the
marriage of seetharatnam was celebrated during the lifetime
of appanna and expenses in that behalf were defrayed by
appanna and numberexpenses remained to be incurred after the
death of appanna. mangamma had numberbeneficial interest in
sch. c property. she was merely appointed to sell the
property and to utilise the proceeds for the purposes
specified in the will. the trial judge clearly erred in
holding that the estate lapsed because mangamma died during
the lifetime of appanna. in the view of chandrasekhar
sastry j. since there was a joint bequest for two
purposes and one of the purposes for which the sch. c
properties were devised was accomplished by appanna the
bequest in its entirety must enure for the remaining purpose
i.e. companystructing a ramamandiram and the plaintiffs claim
for possession of the c schedule properties must fail. the
learned judges of the high companyrt agreed with that view. but there was numberjoint bequest of the properties. in the
absence of allocation of the amounts to be utilised for
celebrating the marriage and other auspicious functions of
seetharatnam and for companystructing a ramamandiram it must be
presumed that the fund was to be utilised in equal moieties
for the two purposes. failure of one of the purposes will
result in a moiety of the amount devised falling into the
residue. in jogeswar narain dea v. ram chund dutt and others 1  a
devise under the will of a hindu testator who had given a
fouranna share of his estate to his daughter and her -son
for their maintenance with power of making alienation
thereof by sale or gift fell to be companystrued. the judicial
committee held that on a true companystruction of the will each
took an absolute interest in a two-anna share in the estate. in dealing with the companytention that there was a joint estate
granted to the daughter and her son the judicial companymittee
observed
 mr. branson maintained upon
the authority of vydinada v. nagammal  ilr 11
mad. 258  that. by the terms of the will the
rani and the appellant became in the sense of
english law joint tenants of the 4-annas
share of silda and number tenants in companymon and
that her alienation of her share before it was
severed and without the companysent of the other

l. r. 23 1. a. 3743.
joint tenant was ineffectual. the
circumstances of that case appear to be on all
fours with the circumstances which occur here
and if well decided it would be a precedent
exactly in point. there are two substantial
reasons why it ought number to be followed as an
authority. in the first place it appears to
their lordships that the learned judges of
the high companyrt of madras were number justified in
importing into the companystruction of a hindu
will an extremely technical rule of english
conveyancing. the principle of joint tenancy
appears to be unknumbern to hindu law except in
the case of companyarcenary between the members
of an undivided family. that principle applies here. the fund was devised for the
construction of a ramamandiram at rajavaram village and
for celebrating the marriage and other auspicious
functionsof seetharatnam. since numberpart of the fund
was needed forthe benefit of seetharatnam the legacy
failed pro tanto and fell into the residue. under the will
mangamma was made the owner of the residue but by her death
during the lifetime of appanna the residuary bequest lapsed
and vested as on intestacy in the plaintiff and the 24th
defendant. the devise of a moiety of the fund to be applied
for the companystruction of a ramamandiram however stands good
and the trust must be carried out. mangamma is dead but on
that account the charitable trust is number extinguished the
trial companyrt must give appropriate directions for utilisation
of that moiety for companystructing a temple according to the
direction of appanna in the will. the testator gave to his wife mangamma an absolute interest
in the e schedule properties for she was invested with all
powers of disposition by way of gift sale etc. the will
then proceeded to direct that whatever remained out of the e
schedule properties after her death shall pass to
venkataswamy and seeshagirirao. if mangamma had survived
appanna probably the devise in favour of venkataswamy and
seshagirirao may have failed but that question does number
arise for companysideration. section 105 of the indian succession act 1925 which
applies to the wills of hindus provides

if the legatee does number survive the
testator the legacy cannumber take effect but
shall lapse and form part of the residue of
the testators property unless it appears by
the will that the testator intended that it
should go to some other person.  2 . . . . . mr. chagla for the plaintiffs companytends that the estate in
the e schedule properties devised in favour of mangamma
lapsed for there was numberhing in the will which expressly
provided that in the event of mangamma dying during the
testators lifetime the devise in favour of venkataswamy
-and seshagirirao shall be accelerated. companynsel relies upon
the judgment of wickens v. c. in browne v. hope 1  and
contends that a legacy does number lapse if the testator does
two things-he in -clear words excludes lapse and he
clearly indicates the person who is to take the legacy in
case the legatee should die in his lifetime. in brownes
case 1  the testator gave by his will the residue of his
estate to trustees to pay and transfer the same to seven
named legatees in equal shares as tenants in companymon and
their respective executors administrators and assigns and
he declared that such shares shall be vested interests in
each legatee immediately upon the execution thereof and
that the shares of the married women shall be for their
separate use. it was held that the share of one of the
legatees-a married woman-who died after the date of the will
but before the testator did number belong to her husband who
was her legal personal representative and it lapsed. companynsel says that the rule of interpretation as enunciated
by vice chancellor wickens is incorporated in s. 105 of the
indian succession act 1925. he submits that a legacy will
number lapse only if the testator by express direction excludes
lapse and indicates clearly the person who shall take the
legacy if the legatee dies during his lifetime. we are companycerned to companystrue the provisions of s. 105 of the
indian succession act. that section enacts that a legacy
shall lapse and form part of the residue of the testators
property if the legatee does number survive the testator except
where it appears by the will that the testator intended that
the legacy shall on the legatee number surviving him go to some
other person. we are unable to agree that the intention of
the testator that a legacy shall number lapse may be given
effect to only if the testator expressly directs that if the
legatee dies during his lifetime the legacy shall go to some
other person and that intention to exclude lapse cannumber be
inferred. section 105 1  does number say number does it imply
that the testator must have expressly envisaged the
possibility of lapse in companysequence of the legatee dying
during his lifetime and must have made a provision for that
contingency. in in re. lowman devenish v. pester  2   a testator who
under a settlement was absolutely entitled to a moiety of
the proceeds of a certain real estate under a trust for
sale by his will devised

l. r. 14 equity cases 343.  2  1885 2 ch. 348.
that real estate by its proper description together with
certain real estate of his own to trustees to the use of
h. for life with remainder to trustees to preserve the
contingent remainders with remainder to the use of the
first and other sons of h successively in tail male with
remainder to the use of the first and other sons of his
niece e successively in tail male with remainder to the use
of the first and other sons of his niece m successively in
tail -male with remainder to the use of the first and other
sons of his niece f successively in tail male with
remainder over. h survived the testator and died a
bachelor. m also survived the testator and died unmarried. e was still alive but unmarried and seventy years of age. f
had two sons the eldest of whom died before the testator. it was held that when there are in a will successive
limitations of personal estate in favour of several persons
absolutely the first of those persons who survives the tes-
tator takes absolutely although he would have taken numberhing
if any previous legatee had survived and had taken the
effect of the failure of an earlier gift is to accelerate
number to destroy the later gift. this rule was applied in in re. dunstan dunstan v.
dunstan 1 . a testatrix by her will gave freeholds
absolutely to a subject to the bequest that whatever out of
the freeholds should remain after as death shall be given
to a named charity. it was held that if a had survived the
testatrix the gift to the charity would have been repugnant
and void and a would have taken the freeholds absolutely. but since a died in the lifetime of the testatrix the
doctrine of repugnancy did number apply and the gift to
charity was accelerated and took effect. mangamma died during the lifetime of the testator thereby
the estate in sch. e properties granted to venkataswamy and
his brother seshagirirao was accelerated. the plaintiffs
are therefore number entitled to any share in sch. e
properties. the decree of the high companyrt is modified. it is declared
that there is intestacy in respect of a half share in the
fund arising by sale of sch. c properties and the
plaintiff and the 24th defendant are entitled to take that
half share in the fund. it is directed that the trial companyrt
will issue appropriate directions for application of the
other half of the fund arising by sale of sch.