tion No 5723 of 1982  219 of 1986
Under Article 32 of the Constitution of India
Mrs Pinky Anand and DN Goburdhan for the Petitioners
BB Singh Pramod Swarup JP Verghese LJ
Vadakare and Ms Kamini Jaiswal NP for the Respondents
The following Order of the Court was delivered These two petitions under article 32 of the Constitution challenge the provisions of the Chhota Nagpur Tenancy Act which confines succession to property to the male line by contending that the provision is discriminatory against women and therefore ultra vires the equality clause in the Constitution
Petitioner No 1 in the first writ petition is the editor of a magazine while petitioners nos
2 and 3 are two ladies of the Ho  tribe admittedly one of the sched uled tribes residing in Singhbhum district of Bihar
The petitioners in the other writ petition belong to the Oraon  tribe of the Chhota Nagpur area
Challenge is essentially to sections 7 and 8 of the Chhota Nagpur Tenancy Act of 1908
Sec tions 7 and 8 of the Act provide 71 Meaning of raiyat having khunt khatti rights 
Raiyat having khunt katti rights means a raiyat in occupation of or having any subsisting title to land reclaimed from jungle by the original founders of the village or their descendants in the male line when such raiyat is a member of the family which rounded the village or a descendant in the male line of any member of such family Provided that no raiyat shall be deemed to have khunt katti 479 rights in any land unless he and all his predecessors in title have held such land or obtained a title thereto by virtue of inheri tance from the original founders of the vil lage
2 Nothing in this Act shall prejudicially affect the rights of any person who has law fully acquired a title to a khunt kattidari tenancy before the commencement of this Act
Meaning of Mundan Khunt khattidar
Mundari khuntkattidar means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family and includes a the heirs male in the line of any such Mundari when they are in possession of such land or have any subsisting title thereto and b as regards any portions of such land which have remained continuously in the possession of any such Mundari and his descendants in the male line such descendants
 Reliance has been placed on a Division Bench decision of the Patna High court in the case of Jitmohan singh Munda vs Ramaratan Singh  Anr in support of the proposition that the Patna High Court had more than 30 years back taken the view that the provision was not operative and a widow was also entitled to inherit
When analysed the judgment of the Patna High Court does not seem to provide prop for the argument raised in the writ petitions
In paragraph 4 of the judgment the High Court indicated The contention based on section 8 also terminologically cannot be accepted in the first place in defining khunt kattidari interest
As quoted above the word used is includes whereafter occur clauses a and b containing reference to the male in the male line of a Mundari
The word includes cannot be taken to be exhaustive
It only states that the heirs in the male line alone are in the category of a Mundari khunt kattidari in their possession but in implication it may well be that the heirs of the deceased Mundari who are females will not be entitled to succeed to it
That does not mean that the section is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land during 480 her life time
Moreover clause a refers to the heirs male in the male fine
The word line is also significant be cause it evidently refers to a person who has descended from the deceased Mundari whose interest may be in question
Even therefore if these words the heirs male in the male line were to be given exclusive meaning then also it would mean only the persons who are descended from him or repre sent another male line altogether
There is no reference whatsoever to the exclusion of the widow of the particular Mundari
In my opinion the position in respect of the interest of the widow of the deceased Mundari is the same in respect of this property as it would be her position in regard to the other properties of her late husband
Since the court below has accepted that the family has followed the Hindu rites and Hindu religion the widow of Kartik Singh would be entitled to be in possession
Section 8 as I have discussed is not inconsistent with this position of the widow and as such the court below took the correct view in holding that the plaintiff could not recover posses sion of the property during the life time of defendant No 1 but he is entitled to a declaration that he will succeed after the death of the widow
 The interpretation given of section 8 in the Division Bench decision therefore does not provide full support to the point raised before us by the writ petitioners in the two cases
It was a case confined to its own facts and the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding that the family had adopted Hindu law and was not bound by its own caste custom
At an earlier stage while one of these writ petitions was heard we had given time to the State of Bihar to consid er the feasibility of carrying out an amendment in the offending sections and to clearly provide that succession was not confined to the male in the male line
A committee appears to have been set up by the State of Bihar to examine this question and it has come to the conclusion that by custom prevalent among the scheduled tribes a female heir is excluded from succession and in case the law was otherwise interpreted or changed and property was allowed to go into the hands of female heirs there would be great agitation and unrest in the area among the scheduled tribe people who have custom based living
Scheduled tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution
It may be that the 481 law can provide reasonable regulation in the matter of succession to property with a view to maintaining cohesive ness in regard to Scheduled Tribes and their properties
But exclusion from inheritance would not be appropriate
Since this aspect of the matter has not been examined by the State of Bihar and the feasibility of permitting inheritance and simultaneously regulating such inheritance for the purpose of ensuring that the property does not go out of the family by way of transfer or otherwise we arc of the view that in the peculiar facts of the case the State of Bihar should re examine the matter
In these circumstances instead of disposing of the two writ petitions by a final order we adjourn the hearing thereof for three months and direct the State of Bihar to immediately take into consideration our order and undertake the exercise indicated and report to the Court by way of an affidavit and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar
This matter shall not be considered as part heard and shall be next listed before a Bench where Justice Kuldip Singh is one of the members
RP Petitions adjourned


Summary:
The Respondent State invited applications for recruit ment of Assistant Engineers Civil and Mech for the Public Works Department
According to the rules governing the recruitment viz Karnataka State Civil Services Direct Recruitment by Selection Rules 1973 the marks obtained In the qualifying examination and the marks secured in the interview would be the basis for selection
The total marks for qualifying examination was kept at 100 and 50 marks were kept for interview
Thus the marks allotted for interview was 333 of the total marks
Appellant No 1 who applied for the post of Assistant Engineer Civil secured 2950 marks out of 50 marks in the interview his marks in the qualifying examination were 6996 totalling in all 9946 marks out of 150
The second appellant a candidate for the post of Assistant Engineer Mech secured 2483 marks in the interview and his marks in the qualifying examination being 6640 he got 9123 marks out of the total of 150 marks
Both the appellants were not selected as they got less marks titan the last candidate selected and they filed a petition before the State Administrative Tribunal challenging the rides on the ground that the percentage of marks for viva voce fixed at 333 was excessive
The Tribunal having dismissed the peti tions the appellants have preferred the present appeal by special leave
Allowing the appeal this Court HELD 1 50 marks for interview out of 150 are clearly in violation of the settled law on this point
Some candi dates have been selected though 494 they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose
If the marks for interview were kept even at 15 of the total marks and merit list was prepared accordingly then both the appellants would have been selected and a large number of selected candidates would have gone much lower in the merit list than the appellants
495 G 496 A B Ashok Kumar Yadav  Ors
vs State of Haryana  Ors
 1988 Supp
SCR 657 Mohinder Sain Garg vs State of Punjab  Ors JT  relied on
Though the Karnataka State Civil Services Direct Recruitment by Selection Rules are clearly in violation of the dictum laid down by this Court since the result of the selections was declared in 1987 and the selected candidates have already joined the posts it would not be just and proper to quash the selections on the above ground
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there Is no allegation of any malafides in the matter of selections
496 C D 3
The respondents are directed to give appointment to the two appellants on the post of Assistant Engineer Civil and Assistant Engineer Mech respectively in Public Works Department within a period of two months in case the appel lants are found suitable In all other respects according to the Rules
496 E 4
Since the appointments under the Rules were made way back in 1987 the case of other candidates cannot be considered as they never approached for redress within reasonable time
The relief is thus restricted only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time
496 F G