K. Veeraswami, C.J.
1. The fifth respondent by an order of the Revenue Divisional Officer dated 5th April, 1966, was appointed as the Village Karnam of Kugalur Village in Gobichettypalayam Taluk. The appellant, who was one of the applicants, however, succeeded in his appeal and he was appointed by the District Revenue Officer to the post by an order dated 12th June, 1966. There was a second appeal by the fifth respondent to the Board of Revenue which reversed the order of the District Revenue Officer and restored that of the Revenue Divisional Officer. The appellant's petition under Article 226 of the Constitution to quash the Board's order having failed he has preferred this appeal.
2. So far as the comparative merits of the fifth respondent and of the appellant are concerned, that cannot properly be the subject-matter of review in writ jurisdiction, and, in fact, no attempt has been made for the appellant to review the merits. The only question pressed before us is as to the maintainability of the second appeal before the Board. On that matter, there appears to be divergence of opinion, Kailasam, J., taking the view in Writ Petition Nos. 9 and 3917 of 1967 that no second appeal lay, and, Ismail, J., on the other hand, being of the view, in the instant case, that a second appeal would be maintainable.
3. The hereditary Village Kamam having resigned, his son, who was a minor, was appointed to the post but with a deputy. On 6th December, 1960, the Supreme Court in Dasaratha Rama Rao v. State of Andhra Pradesh : 2SCR931 , held that Section 6 (1) of the Madras Hereditary Village Offices Act, 1895, violated Article 16 (2) of the Constitution. Thereafter, pursuant to general instructions issued by the Board of Revenue, it appears the post of the Village Karnam was regarded as vacant and applications for filing it up were invited. Ismail, J., considered that the hereditary principle having been set at naught by the Supreme Court, regarding the office as non-hereditary, a second appeal from a reversing order of the District Revenue Officer would be competent before the Board, under B.S.O. No. 156 (3). He was also of the view that the vacancy in the office of the Village Karnam being a permanent one, although the appointment of the fifth respondent was temporary, it would not be regarded as a temporary vacancy, in which case, no appeal would lie even in the first instance. The learned Judge construed B.S.O. No. 156 (3), particularly in the light of the first sentence therein, and, was of opinion that it sustained the maintainability of the second appeal before the Board. Kailasam, J., In the earlier case, took just the opposite view that no such appeal lay.
4. The Madras Hereditary Village Offices Act, 1895, provided for succession to certain hereditary village offices in the Presidency and for hearing and disposal of claims to such offices or persons to hold such offices or the emoluments annexed thereto as well as for the appointment of persons to hold such offices and the control of the holders of the offices. Section 3 mentioned two classes of village offices to which the Act applied. Section 6 (1) contemplated amalgamation of two or more villages into a single new village and the manner of filling up the hereditary office. It proceeded on the basis that on such amalgamation the village offices would come to an end that a new office for the new village would be created and that in choosing persons to fill the new office the Collector should select the persons whom he might consider the best qualified from among the families of the last holders of the offices which have been abolished. The Supreme Court struck down Sub-section (1) of the section on the view that the hereditary principle implied in the procedure to be followed in filling up the office was in conflict with Article 16 (2). Observed the Supreme Court:
There can be no doubt that Section 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 Collector shall select the persons whom he may consider the best qualified 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 contrvention of Article 16 (2) of the Constitution.
Section 10 of the Act contained rules to be observed in making appointments to the hereditary offices. Sub-section (1) indicated the disqualification to the office and Sub-section (2) directed that the succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaries in Southern India. We shall assume that having regard to the principle of Dasaratha Rama Rao v. State of Andhra Pradesh : 2SCR931 , this provision too will be bad as being in conflict with Article 16 (2). So too would be the effect of the decision on the following sub-sections of Section 10, each one of which had been rested on descent, in a particular manner, to the village office.
5. The next sections that need notice are Section 20 and Section 23, of which, the former contained the rule making power. We may remark that Section 20 does not specify power to make a rule providing an appeal though the power as delegated would cover making rules and prescribing the procedure to be followed in disposing of suits and appeals. Appeals against orders of the Collector had been provided by Section 23 (1). It reads:
From every order passed by a Collector under Section 6 or 7, and from every decree or order passed by a Collector in a suit preferred under Section 13, an appeal shall lie, within one month, to the District Collector, or, if the said order or decree was passed by the District Collector, an appeal shall lie, within three months to the Board of Revenue. The decision, on appeal, of the District Collector or the Board of Revenue, as the case may be, shall be final.
There is a proviso to the sub-section which provides for a second appeal to the Board of Revenue against a decision on appeal of the Collector, but, only in respect of a matter arising out of a suit preferred under Section 13, or relating to dismissal or removal of village officers. From the main part of Sub-section (1) it is evident that an appeal has been provided only from an order passed by a Collector under Section 6 or 7, or from a decree or order passed by a Collector in a suit preferred under Section 13.
6. As we said, the vacancy in this case arose because of the application of the rule in Dasaratha Rama Rao v. State of Andhra Pradesh : 2SCR931 . But, on that account, it cannot be said that it was one which would have been filed under Section 6 (1) for, there was no amalgamation of two villages. Neither Section 7 had any application, and, there was no suit either under Section 13. The question, therefore, arises by what power the appointment of the fifth respondent was made. Section 10 authorised; the Collector to fill up the vacancy, but in doing so, he had to comply with the provisions of the sub-sections. Once the hereditary principle is out of the question, the Collector was not under an obligation to follow any of Sub-sections (1) to (6). In our view, however, the power still remains with the Collector to fill up the vacancy though, by reason of Dasaratha Rama Rao v. State of Andhra Pradesh : 2SCR931 , he could not adopt the rules which would apply in filling up the hereditary offices. On the fact, therefore, that Section 10 enabled the Collector to make the appointment to the office, regarding it as non-hereditary, no second appeal to the Board eventually appears to be warranted by Section 23 (1).
7. Confining our attention to Section 20 and Section 23, it appears to us to be even doubtful whether even a first appeal would lie from an order of the Revenue Divisional Officer to the District Revenue Officer. No doubt B.S.O. No. 148 (7) provides for an appeal even where the office is hereditary. It says that against every order of selection made in the circumstances referred to in Clauses (2) and (3) of paragraph 1 of the Board's Standing Order a single appeal lies within the specified period to the Collector if the officer making the selection is a Divisional Officer, or, to the Board of Revenue within the specified time if the original order had been made by she Collector. There is indication in this rule that this provision had been made for an appeal in relation to Section 23 (1). The rule further says that there is no appeal in regard to appointments made in a vacancy of the description mentioned in Clause (1) of this Board's Standing Order, and, there is no second appeal in any case. We need not pause to consider whether in view of the limited rule making power under Section 20 B.S.O. No. 148 (7) providing for a single appeal in matters not covered by Section 23 (1) would be valid. Assuming that it is valid, we are of opinion that clearly there is no warrant for a second appeal to the Board from an order of the District Revenue Officer in a case of an appointment under Section 10 (1) without of course following the hereditary principle.
8. The effect of Dasaratha Rama Rao v. State of Andhra Pradesh : 2SCR931 , in our view, is, not to set at naught or render invalid the entire provisions of the Madras Hereditary Village Offices Act, 1895, except Section 6 (1), and the related provisions involving the hereditary principle. It appears to us that, on that view, the office in question, when filled, would still be governed by the Act until it is repealed. In any case, we do not think that as a result of striking down Section 6(1) in Madras Act III of 1895, ipse juri B.S.O. No. 148 would be superseded and B.S.O. No. 156 (1) would become applicable to what had been hereditary or statutory offices. Certain hereditary offices, including that of the Karnam, were dealt with by the Madras Hereditary Village Offices Act, 1895, and those offices which were governed by the statutory provisions would not, by the striking down of the hereditary principle, become non-statutory offices in order to attract the procedure prescribed by B.S.O. No. 156 applicable to appointments to non-statutory offices, in the sense of offices not governed by any statute. B.S.O. No 156, having regard to its original scheme, is not in our opinion intended to cover offices which fall within the purview of Madras Act III of 1895. The first sentence in paragraph 3 of B.S.O. No. 156 does not mean or imply that it is also applicable to cases governed by that Act. Claimants would be enabled to get redress by the institution of suits under that Act only if the offices were not hereditary in character. The first sentence in paragraph 3 emphasises only that aspect. In other words, it indicates that appointments to non-hereditary offices only will fall within the purview of paragraph 3. We are, therefore unable to find any justification for the view that paragraph 3 of B.S.O. No. 156 would extend also to cases normally covered by B.S.O. No. 148 (3) read with Section 23 (1) of Madras Act III of 1895.
9. The result is the second appeal filed by the fifth respondent before the Board was incompetent. It follows that the order of the District Revenue Officer, would stand. The appeal is allowed. No costs.