Punjab-Haryana High Court
Bijender vs Financial Commissioner on 6 February, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 2554 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 2554 of 2013
Date of Decision: 6.2.2013
Bijender
.....Petitioner.
Versus
Financial Commissioner, Revenue, Haryana and others
.....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Rajinder Singh Malik, Advocate
for the petitioner.
***
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
*** RAMESHWAR SINGH MALIK J.
The present writ petition is directed against the order dated 29.3.2012 (Annexure P-4), passed by the Financial Commissioner, Haryana, setting aside the order dated 22.1.2010 (Annexure P-3) passed by the Commissioner and restoring the order of the Collector, thereby appointing respondent No.4 as Lambardar.
Brief facts of the case, when put into narrow compass, are that Sh. Dayachand Lambardar died on 26.9.2006, because of which one post of Lambardar fell vacant in village Bhaura Rasoolpur, District Sonepat. Proceedings were initiated to fill up the post. Tehsildar Ganaur, recommended that name of respondent No.4 for Civil Writ Petition No. 2554 of 2013 2 appointment to the post of Lambardar. However, the Sub Divisional Officer (Civil), Ganaur, recommended the name of the petitioner. The Collector, after minutely discussing and comparing merits and demerits of both the candidates, appointed respondent No.4 as Lambardar, vide his order dated 4.6.2009 (Annexure P-2).
Dissatisfied, the petitioner filed his appeal before the Commissioner, who accepted the same vide his order dated 22.1.2010 (Annexure P-3). The order of the Commissioner was challenged by respondent No.4 before the Financial Commissioner, who allowed the appeal of respondent No.4, setting aside the order passed by the Commissioner and the order passed by the Collector was restored.
Feeling aggrieved against the above said order passed by the Financial Commissioner dated 29.3.2012 (Annexure P-4), the petitioner has approached this Court by way of instant petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for quashing the impugned order. That is how, this Court is seized of the matter.
Learned counsel for the petitioner submits that the Financial Commissioner has illegally ignored the hereditary claim of the petitioner. In this regard, he relies upon the instructions Annexure P-5. Regarding criminal case against the petitioner, learned counsel submits that since he had been acquitted in that case long ago, the same could not have been considered against the petitioner. He concluded by submitting that once both the candidates were almost equal in merit, the petitioner ought to have been Civil Writ Petition No. 2554 of 2013 3 appointed as Lambardar, giving preference to hereditary claim and ignoring involvement of the petitioner in the criminal case. He finally prays for acceptance of the writ petition and setting aside the impugned order.
Having heard the learned counsel for the petitioner, after going through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that present petition is misconceived and without any substance. To say so, reasons are more than one, which are being recorded hereinafter.
A bare reading of the impugned order passed by the Financial Commissioner as well as the order passed by the Collector would show that both the candidates i.e. petitioner as well as respondent No.4 were almost on equal footing. However, when minutely compared with each other, the Collector rightly found that respondent No.4 was having an edge over the petitioner. The petitioner had been found involved in a criminal case wherein he was ordered to be acquitted on the basis of compromise.
The operative part of the order dated 4.6.2009 passed by the Collector, appointing respondent No.4 as Lambardar, reads as under:--
"After hearing all the parties and making a comparative study, it is observed that candidate Bijender & Dara Singh are younger to Lichha Ram, all the 3 candidates are educated, all have good impression over the people. Candidate Dara Singh has more land Civil Writ Petition No. 2554 of 2013 4 than other candidates & he encouraged 38 persons for family planning for which he was honoured on Republic Day. Tehsildar has recommended the name of Sh. Dara Singh & SDO Officer has recommended the name of Bijender Singh for opportunity as Lambardar. In police record character of Lichha Ram & Dara Singh has been found satisfactory. But in Police Station Ganaur, a criminal case u/s 325/307 IPC in FIR No. 96/19-03-92 was found to be registered against Bijender in which he was acquitted only after a compromise. From all this, it is clear that Dara Singh is young, educated, having more land, has done good work in various welfare schemes of govt. for which he was also given a commendation certificate, have good impression on people, good by character and the report dated 07.06.08 submitted by him shows he has no illegal possession over the land. Tehsildar Ganaur has recommended his name for Lambardar. Therefore, for above mentioned reasons Dara Singh s/o Dharam Singh is considered as a better candidate and is appointed as Lambardar in general category place of deceased Lambardar Sh. Daya Chand s/o Sh. Prithi Singh of the village Bhaura Rasoolpur, Tehsil Ganaur, Distt. Sonepat. The record of this order be sent to concerned Department. Sanad Lambardari be issued after limitation of the appeal. File be submitted in record room."
However, when the petitioner filed his appeal before the Commissioner, no patent illegality or perversity was pointed out in the Civil Writ Petition No. 2554 of 2013 5 order of the Collector, but still the Commissioner set aside the order of the Collector granting benefit of hereditary claim to the petitioner, observing as under:-
"I have heard arguments from both the sides and perused the record brought on the file. Though I agree with the observations of the Collector that both the candidates have equal education qualifications and have given sufficient contribution towards the policies and programmes of the Govt. but still I find the appellant to be more suitable than the respondent for appointment as Lambardar because he is younger in age and being son of deceased Lambardar, has sufficient experience of Lambardar work. His grandfather was also a Lambardar and as per settled law when other qualifications are equal, the candidate having hereditary claim should be preferred. Moreover, SDO (civil) has recommended name of the respondent. On these grounds I find force in the present petition and accordingly the impugned order of Collector is set aside and the applicant Bijender be ordered to be appointed as Lambardar against the said vacancy by accepting the appeal."
When the matter was brought before the Financial Commissioner by respondent No.4, by way of his appeal, the Financial Commissioner rightly came to the judicious conclusion that the hereditary claim was no more available to the petitioner. He further rightly observed that the Commissioner did not point out any Civil Writ Petition No. 2554 of 2013 6 procedural irregularity in the order of the Collector, in the absence of which, the Commissioner should not have upset the choice of the Collector. While passing the order dated 29.3.2012 (Annexure P-4), the Financial Commissioner held as under:-
"I have gone through the facts and circumstances of the case. In so far as hereditary claim of the respondent is concerned, the same has been held unconstitutional by Punjab and Haryana High Court, which has been duly implemented by the State Government by issuing an appropriate notification. No disqualification or adverse remark against the petitioner has been put-forward. No procedural irregularity by the Collector has been pointed out. Accordingly I find that learned Commissioner has substituted his judgment for that of the Collector finding the respondent more suitable. He has not proved the orders of the Collector to be perverse in any manner. It is a settled law that choice of the Collector cannot be overturned unless found perverse. Collector is best suited to evaluate relative usefulness and qualifications of the contesting parties for the benefit of village community. Higher Revenue Authorities are supervisory authorities to ensure that the Collector functions in accordance with the settled principle of law and rules in such matters. Commissioner is not empowered to substitute his evaluation of relative merits of the candidates for that of the Collector. Since Commissioner has not proved the orders of the Collector to be Civil Writ Petition No. 2554 of 2013 7 perverse. I accept this appeal and set aside the orders of the Commissioner and uphold the orders of the Collector."
So far as the hereditary claim is concerned, the Financial Commissioner committed no error of law, while holding that hereditary claim has been declared unconstitutional by this Court. Further, minus the hereditary claim of the petitioner, respondent No.4 was rightly found having an edge over the petitioner. The instructions (Annexure P-5), relied upon by the learned counsel have been rightly ignored by the Financial Commissioner as the same cannot override the provisions of law and also the judgment rendered by this Court in Karnail Singh versus State of Haryana and others, 1974 PLR 67. The order passed by the Commissioner has been rightly set aside by the Financial Commissioner because the Commissioner has failed to record any reason or finding to the effect that the order passed by the Collector was suffering from any patent illegality or perversity.
It is the settled principle of law that choice of the Collector should not be interfered with by the Commissioner, until and unless the order passed by the Collector has been found to be suffering from patent illegality or perversity. This is not even the pleaded or argued case on behalf of the petitioner, nor any such finding has been recorded by the Commissioner that there was a patent illegality in the order of the Collector. Having said that, this Court feels no hesitation to conclude that the Financial Commissioner committed no error of law, while passing the impugned order.
No other argument was raised.
Civil Writ Petition No. 2554 of 2013 8Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the present writ petition is bereft of any merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition is ordered to be dismissed.
(RAMESHWAR SINGH MALIK) JUDGE 6.2.2013 AK Sharma