Narayana Pal, J.
(1) The point of controversy in this Writ Petition is the propriety of an order of appointment made in respect of the office of the patel of Anjar village, Udipi Taluk, South Kanara District. The last holder of the office, Narayana Hegde, died on the 16th of September, 1956. After his death, the petitioner Balkrishna Hegde, who is a member of his Aliya Santhana family, and the first respondent Shankara Hegde who is the son of deceased Narayana Hegde, were competing applicants for the appointment to the post rendered vacant by the death of Narayana Hegde.
The Revenue Divisional Officer by his order dated 10th of September, 1957 appointed the petitioner to the vacant post. Upon appeal by the first respondent, the Deputy Commissioner of South Kanara, set aside the order of the Revenue Divisional Officer and appointed the first respondent to the vacant post. In so appointing the first respondent, the Deputy Commissioner accepted the contention of the first respondent that after the passing of the Hindu Succession Act of 1956, he as the son of the deceased patel is the nearest heir and therefore entitled to the appointment upon the principles of hereditary succession. This order of the Deputy Commissioner was later confirmed by the Revenue Appellate Tribunal.
(2) In the pleadings as originally presented in this Petition, there was no controversy on the question whether the principles of hereditary succession should or should not apply. Both the parties proceeding on the basis that the principles of hereditary succession could properly be invoked and applied, each of them contended that he should have been determined as the nearer heir in preference to the other.
(3) It is common ground that in the District of South Kanara to which the Madras Hereditary Village Offices Act, 1895 (Madras Act 3 of 1895) did not apply, the principles of that Act were nevertheless observed and applied as a matter of custom. Accepting that principle there have been resolutions and instructions issued by the Madras Board of Revenue governing the manner of selection of persons for appointment to the hereditary posts of village offices.
(4) In a recent judgment of the Supreme Court of India in Petition No. 133 of 1959 : : 2SCR931 Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, the Constitutionality of the provisions of Madras Act 3 of 1895 applying the principles of hereditary succession to the village offices was considered. Their Lordships held that the offices held by village officers fell within the meaning of the expression 'office under the State' occurring in Clauses 1 and 2 of Article 16 of the Constitution and that the application of the principles of hereditary succession in the matter of selecting persons of fill those posts would amount to or involve denial of equality of opportunity to citizens in a matter relating to employment to such office under the State and also discrimination on the ground of descent.
(5) In the light of this clear pronouncement of the Supreme Court, the application of the principles of hereditary succession to this case must be held to be unconstitutional. This case therefore will have to be dealt with and decided without reference to the principles of hereditary succession.
(6) The officers and the authorities below having dealt with the matter in the light of the principles of hereditary succession and considered even the merits or demerits of the contending parties also in the light of those principles the proper order which we should make in this case is to set aside the orders already passed and remand the matter to the original appointing authority to consider the respective merits of the contending parties, irrespective of and without regard to the principles of hereditary succession.
(7) The learned counsel for the first respondent, however, contends that there is no such need to make an order of remand, because the order of the Deputy Commissioner of the District appointing him to the vacant post discloses that that appointment was based not merely upon a consideration of the principles of hereditary succession but also upon a consideration of the relative merits of the parties. He wants us to interpret paragraph 5 in the Deputy Commissioner's order as sufficiently indicative of the fact that the appointment of the first respondent can be supported on the grounds of merit alone without any reference to his original claim as heir to the deceased Patel. In that paragraph, the Deputy Commissioner after setting out that in the absence of any rule of succession, the Revenue authorities should select a person who in their opinion would serve the State best, makes the following observation :
'Viewed from this angle, I find that the appellant Sri Shankara Hegde having been in office as acting Patel since the death of the deceased Patel, his father, and being free from any blemishes which prevent him from holding the said office, is more suitable to hold the post than the respondent who is a newcomer.'
We are unable to hold that this single sentence occurring in the order of the Deputy Commissioner is sufficient to uphold the contention of the first respondent that his appointment can be supported on the ground of merit alone. Even the approach made by the Deputy Commissioner to the question in this sentence appears to be that the first respondent being an heir of the deceased Patel, the question for investigation was not whether he is a person entitled on his own merits to appointment but whether there are any blemishes or demerits justifying a rejection of his hereditary right. Apart from that, there is no indication whatever in the order that the Deputy Commissioner did apply his mind to the question of relative merits of the contending parties. By merely using the expression that the first respondent was more suitable than the petitioner whom the describes as a new comer, the Deputy Commissioner cannot be said to have actually considered the relative merits of the contending parties.
(8) In the result, we set aside all the orders passed by the lower authorities and direct the original appointing authority who, according to the rules, is the Assistant Commissioner of the Sub-Division, to take appropriate action for filling the vacancy in the post of the Patel of the village of Anjar, Udipi Taluk, South Kanara District, in accordance with law and in the light of the observations contained in this order.
(9) No order as to costs.
(10) Order accordingly.