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Krishna Rao Deshpande and ors. Vs. the Deputy Commissioner, Chitradurga District and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 532 to 537, 1611 to 1613 and 1616 to 1619 of 1969
Judge
Reported inAIR1971Kant235; AIR1971Mys235; (1971)1MysLJ287
ActsMysore State Civil Services (Recruitment of Local Candidates to Class III Posts) Rules, 1966 - Rule 2; Mysore Land Revenue Act, 1964 - Sections 2(39) and 16(2)
AppellantKrishna Rao Deshpande and ors.
RespondentThe Deputy Commissioner, Chitradurga District and ors.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateR.N. Byra Reddy, High Court Govt. Adv.
DispositionPetition dismissed
Excerpt:
.....contained in clause (39) of section 2 of the land revenue act, a village accountant is a village accountant appointed or deemed to have been appointed under section 16. the actual appointment referred to in the definition is said to relate to those appointed under sub-section (1) and the expression 'deemed to be appointed' is said to relate to sub-section (2). 12. we do not think that there is firm basis for clearly relating the second part of the definition to sub-section (2). in the case of persons appointed or deemed to be appointed to a post, their right to hold the post flows from the appointment itself or an appointment fictitiously regarded as existing by the use of the expression 'deemed to be appointed' in the definition. 14. we are, therefore, clearly of the opinion..........working as such by virtue of their personal rights in accordance with the provisions of the mysore village offices act, 1908. for the reasons and in the circumstances to which we shall make reference presently, they ceased to be hereditary officers but continued to work as shanbhogues by virtue of sub-section (2) of section 16 of the mysore land revenue act, 1964. in these petitions they claim that their services under the government should be regularised in accordance with the mysore stale civil services (recruitment of local candidates to class in posts) rules, 1966.2. there is no dispute about the facts. as already stated, the village offices held by these petitioners were hereditary offices, the appointment to which was governed by rules of succession applicable under their.....
Judgment:

A. Narayana Pai, C.J.

1. The petitioners in these cases were hereditary Shanbhogues or Village Accountants working as such by virtue of their personal rights in accordance with the provisions of the Mysore Village Offices Act, 1908. For the reasons and in the circumstances to which we shall make reference presently, they ceased to be hereditary officers but continued to work as Shanbhogues by virtue of Sub-section (2) of Section 16 of the Mysore Land Revenue Act, 1964. In these petitions they claim that their services under the Government should be regularised in accordance with the Mysore Stale Civil Services (Recruitment of Local Candidates to Class in Posts) Rules, 1966.

2. There is no dispute about the facts. As already stated, the village offices held by these petitioners were hereditary offices, the appointment to which was governed by rules of succession applicable under their personal law. After the promulgation of the Constitution, questions arose about the constitutionality or propriety of continuing the principle of hereditary succession in the matter of public offices. The Supreme Court in the case of Dasaratha Rama Rao v. State of Andhra Pradesh, : [1961]2SCR931 declared that application of hereditary principle would be an infringement of Article 16, The said authoritative declaration of the law put an end to the continuance of hereditary succession to public offices.

3. In 1961, the State of Mysore enacted an Act called Mysore Village Offices (Abolition) Act whereby all the hereditary village offices were abolished. They also promulgated in the same year 1961 rules under the proviso to Article 309 of the Constitution called the Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules 1961. Though the rules came into force from 1st December 1961, the Abolition Act was brought into force much later, that is, on 1st February, 1963. Various Writ Petitions were filed in this Court challenging the constitutional validity of the Act, This court upheld the validity of the Act and dismissed those Writ Petitions. Appeals against the orders of this Court as well as writ petitions directly presented to the Supremo Court were dismissed by the Supreme Court on 21st January, 1966. The judgment of the Supreme Court is reported in : (1967)IILLJ751SC , Shankaranarayana v. State of Mysore.

4. As the State Government had, even as early as 1961, taken the decision to abolish the offices and provide for direct recruitment to those offices in the normal way, necessary statutory provisions were made in Section 16 of the Mysore Land Revenue Act, 1964. That section reads:--

'16. Village Accountant-- (1). The Deputy Commissioner may, subject to the general orders of the State Government and the Divisional Commissioner, appoint a Village Accountant for a Village or group of villages and he shall perform all the duties of a Village Accountant prescribed in or under the Act or in or under any other law for the time being in force, and shall hold office under and be governed by such rules as may be prescribed.

(2) Persons holding the office of a Village Accountant for a Village or group of villages immediately prior to the commencement of this Act shall be deemed to be Village Accountants for such village or group of villages till another person is appointed under Sub-section (1)',

5. Under the Recruitment Rules of 1961 already referred to, recruitment had already commenced. There was also training specially provided for in one of the rules in the said Recruitment Rules. On account of the pendency of litigation the trained persons were not immediately posted to workas Village Accountants but were accommodated in other available offices like Secretaries of Panchayats. When, after the termination of all controversies by the decisions of the Supreme Court, the State Government started taking steps to remove from office Village Accountants who continued to work as such by virtue of Sub-section (2) of Section 16, various writ petitions were filed questioning the propriety of the appointments. 'They were dismissed on 15th February 1967. The judgment of this court is reported in C. S. Narasimha Murthy v. State of Mysore, (1968) 2 Mys LJ 366. The present batch of writ petitions is the next attempt by the hereditary Village Officers to continue in service. Their present claim, as already summarised at the commencement of this order, is that they are entitled to the benefit of the Mysore State Civil Services (Recruitment of Local Candidates to Class III Posts) Rules, 1966.

6. It is obvious that they could claim the benefit of these rules only if they come within the definition of 'local candidate' given in the said rules. By the definition, with which we shall presently deal, a local candidate is one who has been appointed by an appointing authority which expression is also separately defined under the rules. These definitions are found in Clauses (a) and (b) of Rule 2 of the said rules. Those clauses read as follows:--

'(a) 'appointing authority' means the appointing authority as defined in Clause (a) of Rule 2 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957;

(b) 'local candidate' means any person appointed to any of the categories of Class III posts by an appointing authority by direct recruitment otherwise than in accordance with Rule 4 of the Mysore State Civil Services (General Recruitment), Rules, 1957, or the special rules of recruitment applicable to such category of Class II posts, but does not include any person,--

(i) selected for any Class ITT post by a State Level Recruitment Committee or a Divisional Level Recruitment Committee whose selection has been validated by the Mysore State Civil Services Class III Posts Recruitment (Validation) Act, 1965 (Mysore Act 17 of 1965); or

(ii) selected by the Mysore Public Service Commission; or

(iii) appointed temporarily for a fixed period or for any item of work.

7. It is first urged on behalf of the petitioners that the Village Accountants' Recruitment Rules to which we have already referred, classify these posts as belonging to Class III.

8. It is next urged that because they continued by virtue of Sub-section (2) of Section 16 of the Mysore Land Revenue Act, they are persons appointed otherwise than in accordance with Rule 4 of theMysore State Civil Services (General Recruitment) Rules, 1957 or by the special Rules for recruitment applicable to the category of Village Accountants, namely, the Rules of 1961 referred to above.

9. These circumstances, according to the argument, are sufficient to bring them within the definition of 'local candidate' extracted above,

10. The entire matter, therefore, depends upon the interpretation and true effect of Sub-section (2) of Section 16 of the Mysore Land Revenue Act

11. Under the said sub-section, persons holding the office of Village Accountants immediately prior to the commencement of the Act are deemed to be Village Accountants of the villages to which the office relates. The Section does not say that they should be deemed to have been appointed to those posts. Omission to use the word 'appoint' in this sub-section is depended upon by the Government Advocate in support of his contention that this is not a case of appointment at all, and that therefore the petitioners can never come within the description of persons appointed by an appointing authority otherwise than in accordance with the relevant recruitment rules. Mr. Datar for the petitioners contends that, by the definition contained in Clause (39) of Section 2 of the Land Revenue Act, - a Village Accountant is a Village Accountant appointed or deemed to have been appointed under Section 16. The actual appointment referred to in the definition is said to relate to those appointed under Sub-section (1) and the expression 'deemed to be appointed' is said to relate to Sub-section (2).

12. We do not think that there is firm basis for clearly relating the second part of the definition to Sub-section (2). In the case of persons appointed or deemed to be appointed to a post, their right to hold the post flows from the appointment itself or an appointment fictitiously regarded as existing by the use of the expression 'deemed to be appointed' in the definition. In, the second case therefore, there must be a provision of law which creates a fiction of appointment. If any provision of law says that in certain circumstances a certain person shall be deemed to have been appointed as a Village Accountant, such would be the person who falls within the second part of the definition in Clause (39) of Section 2. When such a fiction is created, it has necessarily to be assimilated to the appointment under Sub-section (1) of Section 16.

13. But Sub-section (2) of Section 16 does not create a legal fiction of appointment at all. It does not say that the persons described therein shall be deemed to have been appointed but deals with persons already appointed by virtue of hereditary succession and who were actually holding the office of Village Accountant at the commencement of the Act, and provides thatthey shall be deemed to be Village Accountants. The reason therefor is quite obvious. They had already been appointed and working as Village Officers having come to hold the office by virtue of the principles of hereditary succession. When that principle was declared unconstitutional, they would lose the right to hold that office which would at once become vacant. It would involve some time to make recruitments to the offices by applying principles other than those of hereditary succession. All that the law did was to provide for the interregnum by continuing the Village Officers who had come by hereditary succession by creating a legal fiction that, though in consequence of the constitutional provision they had no right to hold the offices, they must be deemed to continue to hold the offices until provision is made for appointment in the normal way. The deeming provision of the statute refers only to the continuance of the office. That is to say, persons who have lost their right to hold the offices must be regarded as still having the said right--related to a source other than the one which could be regarded as unconstitutional. The original source of their right was the principle of hereditary succession; that became unavailable; hence a new source is substituted for the same by the deeming provision of Sub-section (2) of Section 16 of the Land Revenue Act.

14. We are, therefore, clearly of the opinion that persons in the position of the petitioners who continue to hold the office by virtue of Sub-section (2) of Section 16, cannot he described as persons appointed to that post. They cannot therefore come within the scope of the definition of local candidate' in the rules of 1966 referred to above.

15. The Government Advocate has also suggested that even if they may he regarded as appointed, they come within the exception set out in Clause (iii) of the definition, because they should in that circumstance be regarded as having been appointed temporarily for a fixed period or for any item of work. The first part of the exception may not be clearly applicable because 'fixed period' is a period with certain specific terminals, and two views are possible as to the manner of fixing the terminal points viz., that they should be specified date or dates ascertain able with reference to the happening of events. However, there is some force in the other suggestion that they may be regarded as persons appointed for a certain item of work.

16. As the petitioners do not, forthe reasons already set out, come within the definition of local candidate', they are not entitled to the benefit of regularisation under the Mysore State Civil Services (Recruitment of Local Candidates to Class III Posts) Rules, 1966.

17. All the petitions are accordingly dismissed.


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