1. This is an application under Article 226 of the Constitution against the order dated 13-4-57 of the Member, Board of Revenue, Sambalpur setting asidethe order of the Additional Collector, Bolangir under the following circumstances:
2. Petitioner's father Giridhari Bariha was the Jhankar (village watchman) of Tara village, P. S. Belpara in the District of Bolangir. The appointment and conditions of service of Jhankars in Bolangir district were regulated by the rules framed by the Patna State on 8-8-1942 in pursuance of Section 109 of the Patna State Land Revenue Act, 1940 which have been continued in force after the merger of Patna State with the old province of Orissa. Giridhari was convicted in a murder case (Sessions case No. 9-B of 1954) and sentenced to 14 years rigorous imprisonment by the Sessions Judge of Bolangir. Under Clause (c) of rule 5 of the said rules, he became ineligible for the post of village watchman after his conviction and the revenue authorities considered the question of appointing a successor to his post. Rule 6 which is relevant for our purpose may be quoted.
Dated the 8th August, 1942.
X XX XX On a vacancy occurring in the post of village watchman, a Revenue Officer of the first grade shall appoint a successor from the family of the previous incumbent the nearest relative being selected who is eligible undsr sub-rule 5 of the Rule:
Provided that if the vacancy be caused by the dismissal of the previous incumbent, for bad character misconduct or disobedience, and the effect of the dismissal is likely to be lost where a member of his family is appointed to succeed him, a Revenue Officer of the First grade may appoint an outsider:
Provided also that if the nearest relative be disqualified only on the ground of youth, the Revenue Officer of the First Grade may appoint him to be village watchman in which case he shall appoint an agent and may fix the amount of Agent's remuneration.
3. From a scrutiny of the aforesaid Rule, it will be clear that whenever there is a vacancy the first preference is given to the nearest relative from the members of the family of the outgoing watchman. But, the second proviso to the said rule says that if the nearest relative is disqualified on account of his youth, he may be appointed as a village watchman with an agent to assist him. The first proviso however, says that if the vacancy is caused by the dismissal of the previous watchman for bad character or misconduct and the effect of the dismissal is likely to be lost where a member of his family is appointed to succeed him, the appropriate Revenue Officer may appoint an outsider to the post.
4. On 27-5-1955, the then Revenue Officer Shri S. Panda in Rev. case No. 80/1 of 1954 appointed one Dharma Singh Patro as Jhankar of the village rejecting the claim of the minor son of Giridhari named Ganthia Barhia. He observed in his order that the agent of the minor son named Kalidas Bariha was a drunkard and that the local Police had reporded strongly in favour of an outsider named Dharamsingh Patro.
5. On appeal, the Additional Collector in Rev. Appeal No. 16 of 1955-56 reversed the order of the Revenue Officer and directed that the minor son Ganthia Barhia should be appointed as watchman with his uncle Kalidas Bargia as his agent. He examined the question as to whether the appointment of a relative of a dismissed watchman would have the effect of rendering the dismissal nugatory and held that it would not have such an effect inasmuch as, Giridhari committed the crime of murder in a sudden quarrel with a third person over a landdispute. A second appeal was filed to the Member, Board of Revenue against the decision of the Additional Collector and the learned Member set aside the judgment of the Additional Collector and restored the judgment of the Revenue officer.
He observed that the murder committed by Giridhari was a premeditated murder and was not the result of a sudden quarrel. He further pointed out that a watchman is expected to show more restrain in his behaviour towards other villagers and one of the important controlling factors for this purpose would be his knowledge that if he loses his temper and commits offences of this type even his descendants may have to suffer. If this restraining influence is removed the effect of the dismissal ofthe previous watchman would be lost.
6. Mr. H.G. Panda on behalf of the petitioner raised an interesting constitutional question and urged that the first proviso to Rule 6 of the said rules is invalid as being opposed to Article 16(2) of the Constitution. According to Mr. Panda the disqualification of a member of the family of a dismissed watchman imposed by the said proviso would be a disqualification based solely on the ground of descent and as such, it would offend Article 16(2). Article 16(2) says,
'No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminate against in respect of, any employment or office under the State'.
Doubtless, the post of a Jhankar is an office under the State and if it could be held that the appellant was discriminated against only on the ground that he was the son of his father, there may be some room for argument that Article 16(2) is attracted. But, the relevant rule says clearly that the discrimination is not only on the ground of descent. The applicant was not considered fit for the post by the member, Board of Revenue not on the ground that he was the son of his father, but on the main ground that his father committed premeditated murder and if the son be appointed in the post from which his father was removed, the effect of dismissal of his father was likely to be lost. The rule, in question expressly says that under ordinary circumstances the nearest relative of the dismissed watchman should be appointed to the post and it is only when such appointment would have the effect of rendering the order of dismissal of the previous incumbent nugatory that the Revenue Officer is given discretion to select an outsider. Hence, the said rule instead of discriminating against a person on the ground of his descent may be said to be discriminating in his favour on that ground except when the special circumstances mentioned in the first proviso are attracted.
7. It is always open to the appointing authorities to lay down certain qualifications for the post of a watchman of a village, and if they consider that a watchman will discharge his duty more satisfactorily if he knows that any misconduct on his part would not only entail his dismissal but may also have the effect of forfeiting the rights of his descendants to succeed to the post, it is open to them to provide in the rules for such restraining influence on the conduct of the watchman. Such a provision cannot be held to be unreasonable bearing in mind the duties which a watchman is expected to perform. It is his primary function to prevent commission of Crime and if he himself commits premeditated murder, the authorities are entitled to hold that the appointment of his son to the post would have the effect of rendering his dismissal from service practically nugatory.
8. The emphasis in Clause (2) of Article 16 is on the word 'only'. Where there is discrimination only on the ground of descent that clause of the article may be attracted, but where discrimination is based partly on the ground of descent and partly on the other considerations which are relevant for the purpose of appointment to the post, there will be no contravention of that clause.
9. I would therefore dismiss this application. But there will be no order for costs.
10. I agree.