Punjab-Haryana High Court
Sarwan Kumar vs The Financial Commissioner Appeals-I, ... on 18 December, 2001
JUDGMENT G.S. Singhvi, J.
1. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for quashing order Annexure P.9 dated 29.11.2001 passed by the Financial Commissioner Appeals-I, Punjab (respondent No.1) and for restoration of order Annexure P-7 dated 7.8.2001 passed by the Commissioner, Jalandhar Division, Jalandhar.
2. The facts necessary for deciding the writ petition are that in pursuance of the proclamation made in village Miani through Halqa Patwari, the petitioner is said to have submitted application dated nil to the Naib Tehsildar for appointment of Lambardar of the village. Five other candidates including respondent No.3 also applied in response to the proclamation. Their applications were forwarded by Naib Tehsildar-cum-Assistant Collector, Grade-11, Tanda to the Tehsildar, Dasuya vide Annexure P-l dated nil. He recommended that respondent No.3 be appointed as Lambardar. The relevant extract of the recommendations made by the Naib Tehsildar reads as under: -
"Antecedents of these candidates were duly verified from the police which are attached with the file and found satisfactory. Therefore, keeping in view the aforesaid facts, the name of Shri Subhash Chander Ex-Naik son of Bhagat Ram resident of village Miani is recommended for the appointment of Lambardar because he belongs to Ad-dharmi caste and younger in age as 37 years old. He is having his vote and ration car in the village. He owns his own kothi in the village and is owner of 3 shops. He retired front the Army and is drawing his pension. He does not participate in any political party and has not taken any loan and moreover, no case is pending against him. He knows the working of Lambardar."
3. The Tehsildar, Dasuya approved the recommendations made by the Naib Tehsildar and vide Annexure P.3 dated 26.4.1999, he forwarded the case to the Sub Divisional Magistrate with the following remarks:
"all the candidates are permanent resident of village Miani and belong to Harijan caste. The record was perused and the candidates were heard. Thereafter, 1 have come to the conclusion that out of the candidates, Shri Subhash Chander son of Bhagat Ram is suitable for the appointment of Lambardar. I agree with the report of Naib Tehsildar, Tanda and recommend the name of Subhash Chander son of Bhagat Ram, resident of village Miani for the appointment of Harijan Lambardar."
4. The Sub Divisional Magistrate-cum-Assistant Collector 1st Grade, Dasuya agreed with the recommendations made by the Naib Tehsildar and Tehsildar and submitted the case to the Deputy Commissioner, Hoshiarpur for appointment of Lambardar by recording the following observations:
"Aforesaid six candidates appeared in the Court. They have been heard and every candidate has intimated about them and their qualifications. Shri Subhash Chander, Ex-Naik has stated that during his service he participated in different operations and has been awarded with Siachin-glacier. An entry to this effect also found in the Discharge Book attached with the file. He has also stated that his father was also previously a Lambardar and has also known the work of Lambardari. File has been pursued. The records of Naib Tehsildar, Tanda and Tehsildar, Dasuya have been perused. Amongst these candidates, I found suitable Shri Subhash Chander, Ex. Naib. Therefore, agreeing with the reports of Naib Tehsildar Tanda and Tehsildar Dasuya. I recommend the name of Subhash Chander Ex-Naik for the appointment of new Harijan Lambardar of village Miani in place of Shri Bhagat Ram, discharged Lambardar. Candidates are directed to appear before learned Deputy Commissioner, Hoshiarpuron 26.7 1999.
5. After considering the report of Sub Divisional Magistrate, Dasuya and hearing the candidates and their Advocates, District Collector, Hoshiarpur passed order Annexure P.5 dated 3.5.2000 for appointment of respondent No. 3 as Lambardar. The relevant extracts of the order passed by the District Magistrate are reproduced below:-
"I have gone through the record brought on file very carefully and have heard the candidates and their learned Counsel.
Shri Subhash Chander is no doubt son of a dismissed Lambardar who was dismissed due to wrong verification but it has virtually no effect on the selection of Shri Subhash Chander. Stigma or unfair action of father cannot come in the way of his selection as a Lambardar as he has an unblemished record in army and earned medals for his performances in the Wars especially when the other candidates are not better than him it has been argued against Shri Sarwan Ram that his application was time barred. He submitted on 28.2.1998 after expiry of date fixed for making request and the last date was 18.2.1998. Owning of land cannot be given any dominant consideration while making appointment of Harijan Lambardar as such this factor does not go against Shri Subhash Chander. It has been held by higher courts in so many cases that the land is not the sole criteria in deciding Harijan Lambardari case. Shri Subhash Chander quite contrary to this is an Ex-serviceman and he is expected to be more responsible and disciplined persons who is stated to have gained experience of Lambardari from his father.
After giving thoughtful consideration to arguments and pleadings of the parties, I feel that Shri Subhash Chander who is choice of the lower courts is certainly a better candidate and accordingly appoint him as Lambardar of village Miani, Tehsil Dasuya, District Hoshiarpur."
6. The petitioner challenged the appointment of respondent No. 3 by filing an appeal under Section 13 of the Punjab Land Revenue Act. The same was allowed by Commissioner, Jatandhar Division, Jalandhar vide order Annexure P.6 dated 7.8.2001. Paragraphs 12 to 15 of the order passed by the Commissioner read as under:
"12. As per the record available on the file, Shri Subhash Chander is 7th class pass and having served army from 1988-97 is drawing pension Rs. 1200/-. He is son of the dismissed Lambardar. The dismissal of his father will not go agiant Shri Subhash Chander.
13. Sarwan Kumar is 48 years of age. He owns 12K-10M of land. He served in General Regiment Engineer Force from 1972 to 1992 and retired as J.C.O. and is presently drawing pension of Rs. 2800/-. Besides, he is a matriculate. GREF is also an organization of Defence Ministry. The learned Counsel for Shri Subhash Chander has produced a document giving the definition of ex-serviceman. Defence Security Crops. General Reserve Engineering Force and Para-military Forces are outside the definition of ex-serviceman. This definition is in the context of some benefits to be granted to the ex-servicemen. GREF is also an equally reputed wing of the Defence Department.
14. Sarwan Kumar has, therefore, better qualification. He has 20 years of service against 17 years of Shri Subhash Chander. He retired as Junior Commissioned Officer whereas Shri Subhash Chander retired as Ex-Naik. He is drawing more pension than Shri Subhash Chander. He owns more land than Shri Subhash Chander even though land ownership is not very relevant for a scheduled caste Lambardar. The application of Sarwan Kumar was not time barred as held by the Deputy Commissioner. No doubt, the application of Sarwan Kumar was undated but it was entertained and taken cognizance by the Naib Tehsildar. Even the order of Naib Tehsildar itself is undated. Just because no date has been put on the application does not mean that the application is time barred. Observation of learned Deputy Commissioner that Subhash Chander had taken part in 4 wars and also won 4 medals is also not correct. Subhash Chander served in the army from 1980 to 1997 and there was no war during this period. He had participated in some army operations/exercises.
15.1 accordingly accept the appeal of Sarwan Kumar and set aside the order of the Deputy Commissioner dated 3.5.2000 and hold that Sarwan Kumar be appointed as Lambardar. The other appeal by Shiv Kumar is accordingly dismissed."
7. Aggrieved by the order of the Commissioner, respondent No. 3 filed appeal before the State Govemmenl which was allowed by respondent No. 1 vide order dated 29.11.2001 by observing that the Commissioner had failed to correctly appreciate the issue relating to eligibility of respondent No. 3. He further held that the order passed by the Collector for appointment of respondent No. 3 did not suffer from any legal infirmity warranting interference by the Commissioner and the latter had illegally cancelled the stay order.
8. Learned counsel for the petitioner argued that the order passed by the Commissioner, Jalandhar Division, Jalandhar did not suffer from any illegality and, therefore, respondent No. 1 was not justified in upsetting the direction given by him for appointment of the petitioner. He further argued that the reasons assigned by respondent No. 1 for interfering with the well-reasoned order passed by the Commissioner, i.e., delayed submission of application by the petitioner is wholly untenable because the Naib Tehsildar, Tehsildar and Sub Divisional Magistrate had not rejected the petitioner's application on the ground that it had been submitted after the due date. Learned counsel then submitted that non-mentioning of dale on the application of the petitioner and the report submitted by the Naib Tehsildar cannot lead to an inference that the former had submitted the application after the fast date specified in the proclamation issued for the purpose of appointment of Lambardst.
9. In our opinion, there is no merit in the arguments of the learned Counsel and the writ petition is liable to be dismissed summarily because in our considered view, the orders passed by the District Collector and respondent No. 2 do not suffer from any jurisdictional infirmity or patent legal error warranting issuance of a writ in the nature of certiorari. The petitioner has not produced any evidence before the Court to controvert the finding recorded by respondent No. 1 that the application submitted by the petitioner and the report of the Naib Tehsildar did not bear any date and that there was every likelihood of manipulative insertion of his application after the expiry of cut-oft" date, i.e., 17.12.1998. Therefore, order dated 29.11.2001 passed by respondent No. 1 cannot be termed as erroneous, requiring interference by this Court.
10. We are further of the view that the Commissioner, Jalandhar Division, Jalandhar had committed a serious illegality by interfering with the concurrent recommendations made by the Naib Tehsildar, Tehsildar and Sub Divisional Magistrate in favour of respondent No. 3 which were duly approved by District Collector, Hoshiarpur. The Commissioner, Jalandhar Division, Jalandhar did not find any infirmity in the order of the Collector, but on re-evaluation of the record, he thought that the petitioner was a better candidate and only on that ground, he allowed the appeal of the petitioner and directed his appointment in place of respondent No. 3. This, in our considered view, the Commissioner could not have done and, therefore, the order passed by respondent No. 1 setting aside the direction given by the Commissioner does not call for interference by this Court under Article 226 of the Constitution of India.
For the reasons mentioned above, the writ petition is dismissed.
Sd/- M.M. Kumar, J.