The hereditary right to the post of Pradhan under Schedule V of the Santhal Parganas Manual must be considered before resorting to the election process under Section 5 of the Santhal Parganas Tenancy Act.

B. P. Jha, M. P. Varma, JJ.

1. The petitioner has filed a writ petition for appointment as Pradhan. He prays for quashing annexure8, Annexure 8 contains the order of the Commissioner in appeal.

2. The simple point for consideration in this application is : Whether the petitioner should be appointed as Pradhan on the facts and in the circumstances cf the case It (is clear from annexure 1 that the petitioners father was the pradhan of village Kamaldiha in the district of Santhal Pargaqas. Before he (father of the petitioner) died he submitted resignation for the post of Pradhan. The petitioner claims to be the Pradhan as being the next heir. In this connection paragraph 3 and 4 of schedule V of the Santhal Parganas Manual were referred to, which run as follows :

"3. The office of headman being hereditary, the next heir, who is fitted, should be headman. If the heir be a minor, he may be appointed headman with Sarbrakar to manage for him until he attains his majority. "if no suitable sarbrakar can be found, the right of the minor lapses.4. A person may be refused succession on the death of his father/mother if, for reasons to be recorded, he/she be considered unfit for the post. "

3. On a perusal of these Rules, it is clear that in case where a person claims to be Pradhan on the basis that he is next heir of the Pradhan, then in that case paragraphs 3 and 4 of schedule V shall apply. The applecation of schedule y is also covered by Rule 3 (5) of the Santhal Parganas Tenancy (Supplementary provisions) Rules (hereinafter referred to as the Rules), which runs as follows :

"in making the appointments of headman under Sec.5 or Sec.6 the deputy Commissioner shall, as far as possible, follow the rules prescribed in schedule V except where these rules, expressly or by necessary implication, provide otherwise. "

4. On a perusal of Rule 3 (5) of the Rules, it is clear that even in case of appointment of headman either under Sec.5 or under Sec.6, the Deputy commissioner will follow the rules prescribed in rule (5) except where these rules expressly provide otherwise. Relying on rule 3 (5) of the Rules, it is clear that even if a case may fall within the purview of Sec.5, the provisions of schedule V shall apply. In the present case the admitted position is that Kamaldiha has become khas village after the resignation of the Pradhan, who was the father of the petitioner. The petitioner applied to the S. D. O. for being appointed as pradhan, as he is the next heir of his father. The S. D. O. ought to have considered his case within the purview of paragraphs 3 and 4 of schedule V, which was not done by the S. D. O. vide annexures 4 and 5. This aspect was also not considered in appeal by the learned deputy Commissioner of Santhal Parganas vide annexure 6. The Deputy Commissioner was pleased to remand the case for fresh hearing before the S. D. O. Against that order respondent 5 preferred an appeal before the Commissioner and the appeal was disposed of by the learned commissioner, vide annexure 8. The learned Commmissioner upheld the order of the S. D. O. as contained in annexures 4 and 5 and set aside the order of the deputy Commissioner and appointed respondent 5 as Pradhan. The learned commissioner also failed to fclicw the guideline given in paragraphs 3 and 4 of schedule V. It is for this reason that the learned Commissioner committed an error in delivering the judgment, and as such, we quash the order of the Commissioner, as contained in annexure 8.

5. The scheme of the Santhal Parganas Tenancy Act is that a village headman should be appointed either on the basis of election or on the basis of hereditary right. Eeven in a case, where Sec.5 applies if there are two applications, namely, one on the basis of the hereditary right and the other on the basis of the election, the S. D. O. or the Deputy Commissioner ought to have first considered the case of the person, who claims on the basis of the hereditary right If his application is r