Punjab-Haryana High Court
Ranbir Singh vs State Of Punjab And Others on 1 May, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.4297 of 2011 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CWP No.4297 of 2011
Date of Decision: 01.05.2013
Ranbir Singh
..... PETITIONER
VERSUS
State of Punjab and others
..... RESPONDENTS
. . .
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
. . .
PRESENT: - Mr. S.S.Tiwana, Advocate
for the petitioner.
Mr.Suresh Singla, Additional Advocate General,
Punjab.
Mr.Sherry K.Singla, Advocate
for respondent No.3.
. . .
RAMESHWAR SINGH MALIK, J (Oral)
Feeling aggrieved against the order dated 10.12.2010 (Annexure P-9) passed by Financial Commissioner (Revenue) Punjab, thereby setting aside the appointment of the petitioner as Lamberdar, made by the Collector and upheld by the Commissioner, petitioner has approached this Court by way of instant writ petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing of the impugned order.
Consequent upon the death of late Sh. Gareeb Singh, CWP No.4297 of 2011 2 Lambardar, one post of Lambardar fell vacant in the village of the parties. Proceedings were initiated to fill up this post. Tehsildar Payal as well as SDM Payal recommended the name of the petitioner for appointment to the post of Lambardar. District Collector, Ludhiana after considering comparative merits of both the candidates i.e. petitioner and respondent No.3, found the petitioner as the best choice for appointment to the post of Lambardar. Accordingly, the petitioner was appointed as Lambardar vide order dated 22.08.2006 (Annexure P-1), passed by District Collector, Ludhiana. Certificate of Lambardar was also issued in favour of the petitioner vide Annexure P-2 dated 31.10.2006. Dis-satisfied respondent No.3 filed his appeal (Annexure P-3) before the Divisional Commissioner, Patiala, which was dismissed vide order dated 21.08.2007 (Annexure P-4). Respondent No.3 filed his revision (Annexure P-5) before the Financial Commissioner, who vide order dated 10.02.2009 (Annexure P-6) remanded the matter back to the Collector for fresh decision. Petitioner approached this Court by way of CWP No.7688 of 2009 challenging the order dated 10.02.2009 (Annexure P-6). The abovesaid order passed by Financial Commissioner was set aside by this Court vide order dated 01.10.2010 (Annexure P-8). The matter was remanded back to the Financial Commissioner to examine the record and pass appropriate orders afresh, in accordance with law. Thereafter, vide impugned order dated 10.12.2010 (Annexure P-9), Financial Commissioner set aside the orders passed by Collector and Commissioner, vide which the petitioner was appointed. Respondent No.3 was appointed as Lamberdar by the Financial Commissioner. Hence this writ petition.
While issuing notice of motion, this Court passed the following CWP No.4297 of 2011 3 order on 10.03.2011:
"Learned counsel contends that the petitioner being 32 years of age; 9th class pass; owning 21 bigha 2 biswas of land; and having a good social standing having been recommended by a large number of residents, had better merit as compared to respondent No.3, Bant Singh who is 65 years of age; 5th class pass; and owns 48 bigha 16 biswas of land.
Learned counsel has drawn the attention of the Court towards Annexure P-8 i.e. decision of this Court wherein it has been made clear by the revenue officers that Lambardar is to be appointed for the village and not for Dullon Patti. Learned counsel contends that the petitioner having been appointed by the Collector, the order of Collector was endorsed by the Commissioner in appellate jurisdiction. The Financial Commissioner however has remanded the case on the pretext that Lambardar for Dullon Patti has to be appointed. Notice of motion for 5.4.2011.
Respondent Nos.1 and 2 have been served in Court through Mr.Manoj Bajaj, Additional Advocate General, Punjab. Requisite number of copies of the petition have been supplied to him.
Respondent No.3 be served by way of dasti process and registered AD post.
District Collector, Ludhiana, is directed to specifically clarify as to whether post of Lambardar is open for village Bhurthala Randhawa or Lambardar is to be appointed only for Dullon Patti.
It has been contended that Sannad has been issued. In the meantime, operation of order dated 10.12.2010 (Annexure P-9) shall remain stayed till the next date of hearing."
In response to the above said order, written statement was filed on behalf of respondent No.3 and a short affidavit dated 05.04.2011 was CWP No.4297 of 2011 4 filed by Deputy Commissioner, Ludhiana.
Learned counsel for the petitioner submits that while passing the impugned order, the Financial Commissioner has committed patent error of law, altogether ignoring the order dated 01.10.2010 (Annexure P-8) passed by this Court, wherein it was made clear that the Lambardar was to be appointed for the village and not only for Dullon Patti. He further submits that the Financial Commissioner has also violated the settled principle of law that ordinarily choice of the Collector was not liable to be interfered with unless suffering from patent illegality or perversity. He next contended that respondent No.3 was not even eligible for appointment being a person of 65 years in the year 2006, who was more than 69 years of age at the time of passing of the impugned order by the Financial Commissioner. Finally, he prays for setting aside the impugned order, allowing the present writ petition.
Per contra, learned counsel for respondent No.3 submits that the impugned order passed by the Financial Commissioner was not suffering from any illegality. The appointment of the petitioner made by the Collector and upheld by the Commissioner was illegal because he was belonging to the Jogi Patti whereas the post of Lambardar in question was belonging to Dullon Patti. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned order passed by the Financial Commissioner is not only contrary to the facts but also against law, which cannot be sustained. The writ petition deserves to be allowed for more than one CWP No.4297 of 2011 5 following reasons.
It is undisputed on record that the petitioner was 32 years of age and 9th pass. He was permanent resident of the village and was having 21 bigha and 2 biswas of land. On the other hand, respondent No.3 was 65 years of age, he was 5th pass and was having 48 bigha and 16 biswas of land. District Collector, Ludhiana has duly considered all these relevant factors while passing his order dated 22.08.2006 (Annexure P-1), while appointing the petitioner as Lambardar. Relevant part of the order passed by the District Collector, reads as under:
"I have heard the arguments of the candidates present. The file received from the lower court has been perused. After analyzing everything, I have reach to the conclusion that out of the two candidates I consider Ranbir Singh to be a better and appropriate candidate for the appointment of lambardar. First Ranbir Singh is more educated than the other candidate. Secondly Ranbir Singh is of less age and is young whereas on the other hand Bant Singh is of 65 years of age thirdly 129 respected persons that includes the village panchayat have wished him to be appointed as nambardar of the village. Fourthly Tehsildar/Sub Divisional Magistrate Payal have also recommended the name of Ranbir Singh Candidate. On account of the forgoing reasons I while considering Ranbir Singh, Candidate as better and eligible candidate thereby appoint him as new lambardar of village Bhurthala Randhava, Tehsil Payal, District Ludhiana in place of deceased Garib Singh."
The matter was re-considered by the Commissioner, who did not find any illegality in the order passed by the Collector and dismissed the appeal of respondent No.3, vide order dated 21.08.2007 (Annexure P-4) and operative part thereof, reads as under:
CWP No.4297 of 2011 6
"I have gone through the written arguments submitted by both the parties and have also gone through the record of the lower court. The perusal of the record reveals that the respondent is more meritorious than the appellant. All the lower revenue officers have recommended the candidature of the respondent and in my opinion the District Collector has rightly given the weightage to the recommendation of the lower revenue officers who are working at cutting edge level and are in a position of assess the suitability of the candidate, are to be given serious consideration. It is a settled law that the choice of the District Collector need not be disturbed unless and until it is suffers from patent illegality or irregularity. The District Collector has not committed any illegality or irregularity by appointing the respondent as lambardar. In view of the above, I do not find any merit in the appeal of the appellant and the same is hereby dismissed."
When the order dated 10.02.2009 Annexure P-6 passed by the Financial Commissioner remanding the case to the Collector for fresh decision, was challenged by the petitioner by way of CWP No.7688 of 2009, this Court set aside the order dated 10.02.2009 passed by the Financial Commissioner. The matter was remanded to the Financial Commissioner to decide the case afresh. The relevant observations made by this Court in order dated 01.10.2010 (Annexure P-8), read as under:
"In compliance with this order, the District Collector, Ludhiana, has filed an affidavit dated 25.9.2010. Paras 2,3 and 4 of the affidavit read as follows:-
"That official correspondences and record relating to this matter has been perused by the answering respondent. Nowhere in the official correspondences/record relating to this case, it has been mentioned that applications for appointment for the post of Lambardar be invited for patti Dullon.CWP No.4297 of 2011 7
That also clarification had been seeked from the office of Financial Commissioner (Revenue) as to whether there exist any notification which says that Lambardar will be appointed for Patti of village and in reply the office of Financial Commissioner (Revenue) had replied that no such notification exists which says Lambardar may be appointed for Patti of village.
That in view of above it can be conducted that applications were not invited for appointing a Lambardar for a specific patti."
A perusal of the affidavit, appears to prima facie suggest that applications were invited for the post of lambardar for entire revenue estate of village Bhurthala Randhawa and not from shareholders of Patti Dullon, alone.
In this view of the matter and in order to resolve this factual controversy, the writ petition is allowed, the order dated 10.2.2009 is set aside and the matter is remitted to the Financial Commissioner, Revenue, Punjab, to examine the record afresh and pass appropriate orders in accordance with law, within three months from receipt of a certified copy of this order." Inspite of the above said specific observations made by this Court, on the basis of affidavit dated 25.09.2010 filed by District Collector, Ludhiana, Financial Commissioner has failed to appreciate the material aspect of the matter that the appointment to the post of Lambardar was being made for entire revenue estate of village Bhurthala Randhawa and not for Patti Dullon alone. The operative part of the impugned order dated 10.12.2010 passed by the Financial Commissioner, reads as under:
"I have given thoughtful consideration to the whole case, it is not the disputed fact that when there is one post of lambardar of the village he is to work for the entire village and he is to collect the revenue/chowkidara etc. for the entire village, but CWP No.4297 of 2011 8 when there are more than one posts of lambardars for that village, the work is distributed among them area wise and these village areas are known as different "patties". In the instant case it is not denied by counsel for the respondent that respondent Ranbir Singh is the resident of Jogi patti and owns house and land in Jogi patti whereas the vacancy of the lambardar, which is required to be filled now, was caused due to death of Garib Singh lambardar who belonged to Doolon patti of the village obviously if the vacancy has occurred from the Doolon patti the preference needs to be given to the resident of that patti. Otherwise also resident of the same patti personally knows all the residents of that patti and can be more helpful for the identification etc. of the residents of that patti. Further it is settled law that persons owning land in the same patti deserve preference. This point has been over looked by the courts below which seems patent illegality in the instant case. Otherwise also petitioner Bant Singh is a matured person as compared to the respondent and for the post of village headman, a mature person, resident of Doolon patti and owns land in this patti. Obviously he is more suitable. I accordingly accept the present revision petition, set aside the impugned order of Collector and A.C.I. And appoint the present petitioner Bant Singh."
The combined reading of the abovesaid orders would make it crystal clear that the Financial Commissioner, Punjab fell in serious error of law while passing the impugned order, which cannot be sustained. Firstly, the specific observations made by this Court in its order dated 01.10.2010 reproduced above, have not been kept in view by the Financial Commissioner. Had the abovesaid observations made by this Court been kept in view, there would have been no scope left with the Financial Commissioner to pass the impugned order, because the issue of Jogi CWP No.4297 of 2011 9 Patti/Dullon Patti had been discussed and clarified in detail, that too after the District Collector, Ludhiana has filed his affidavit dated 25.09.2010. Having said that, this Court feels no hesitation to conclude that the impugned order passed by the Financial Commissioner was contrary to the observations made by this Court in favour of the petitioner. Thus, the impugned order cannot be sustained.
Again, the settled principle of law that ordinarily the choice of the Collector is not to be interfered with in case of appointment of Lamberdar, has been violated by the Financial Commissioner. The Collector as well as the Commissioner have committed no error of law while passing their respective orders in favour of the petitioner. However, the Financial Commissioner fail to appreciate the true factual as well as legal aspect of the matter while passing the impugned order. In this view of the matter, it is un-hesitatingly held that the impugned order passed by the Financial Commissioner suffers from patent illegality and the same cannot be sustained.
It is an admitted position on record that respondent No.3 was more than 69 years of age at the time of the passing of the impugned order dated 10.12.2010 (Annexure P-9). Thus, Financial Commissioner also violated the law laid down by the Hon'ble Supreme Court while appointing a person of 69 years of age as Lambardar for the first time. The Hon'ble Supreme Court in the case of Mahavir Singh Vs. Khiali Ram and others, 2009 (1) RCR (Civil) 757, while referring to relevant judgments of the Lahore High Court, observed as under:
"14. It is now a well-settled principle of law, keeping in view the decisions in regard to the appointment of Lambardar in the CWP No.4297 of 2011 10 State of Punjab, that age of a candidate is a relevant factor. In Lt. Malik Abbas Khan Vs. Ghulam Haidar (1940 Lahore Law Times 25), it was stated:
"...It is certainly now wise, save in very exceptional circumstances, to appoint for the first time, an inamkhor or zaildar whose age is 60 or more."
In Kalyan Singh v. Haidar (1928 Lahore Law Times 33), the Financial Commissioner held that ordinarily the Collector's choice appointing a Zaildar or Sufedpost should not be interfered with even though the appellate authority believes that his choice was not the best choice.
Similar view was expressed in Lila Ram v. Asa Ram (1955 Lahore Law Times 29) in the following terms:
"...While it is now an established principle that there should be no interference with the choice made by the Collector, it does not follow that where the Collector's order is based on a misrepresentation of facts, there should still be no interference."
The abovesaid view was reiterated by the Hon'ble Supreme Court in the case of Ishwar Singh Vs. Satbir Singh and others, 2009(3) RCR (Civil) 955. Following above said judgments of the Hon'ble Supreme Court, this Court, in the case of Mohinder Singh Vs. Financial Commissioner, Co-operation, Punjab, Chandigarh and others, 2009(3) PLR 92 and Major Singh Vs. Financial Commissioner, Cooperation, Punjab, Chandigarh and others, 2009(4) PLR 487 held that age was one of the relevant factors and a person of 47 years was appointed as Lambardar in preference to a person aged 60 years.
Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court as well as this Court, it is held that the District Collector came to a just conclusion while CWP No.4297 of 2011 11 appointing the petitioner as Lambardar. Further, Commissioner rightly upheld the order passed by the District Collector. Thus, the orders passed by the District Collector and Commissioner deserve to be upheld, whereas the impugned order passed by the Financial Commissioner is contrary to the facts of the case, as well as against the law settled by the Hon'ble Supreme Court. Thus, the impugned order cannot be sustained.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned order passed by the Financial Commissioner is patently illegal and cannot be sustained. The order dated 10.12.2010 (Annexure P-9) passed by the Financial Commissioner (Revenue), Punjab is hereby ordered to be set aside. Order dated 22.08.2006 (Annexure P-1) passed by the District Collector and order dated 21.08.2007 (Annexure P-4) passed by the Divisional Commissioner are restored.
Resultantly, the instant writ petition stands allowed. No order as to costs.
( RAMESHWAR SINGH MALIK )
May 01, 2013 Judge
jt