IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: February 08, 2011 1. Civil Writ Petition No.4863 of 2009 Bir Singh .....PETITIONER(S) VERSUS Financial Commissioner (Revenue), Punjab & others .....RESPONDENT(S) . . . 2. Civil Writ Petition No.5055 of 2009 Upinder Singh .....PETITIONER(S) VERSUS Financial Commissioner (Revenue), Punjab & others .....RESPONDENT(S) . . . 3. Civil Writ Petition No.1890 of 2008 Mohinder Singh .....PETITIONER(S) VERSUS Financial Commissioner (Revenue), Punjab & others .....RESPONDENT(S) . . . CWP No.4863 of 2009 [2] CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Vijay Lath, Advocate, for the petitioner. Mr. G.S. Attariwala, Additional Advocate General, Punjab, for respondent Nos.1 to 3. Mr. P.K. Gupta, Advocate, for respondent No.4. Mr. Jatinder Singla, Advocate, for respondent No.5. . . . AJAI LAMBA, J (Oral) 1. This shall dispose of three petitions viz. Civil Writ Petition No.4863 of 2009 titled ‘Bir Singh vs. Financial Commissioner (Revenue), Punjab & others’; Civil Writ Petition No.5055 of 2009 titled ‘Upinder Singh vs. Financial Commissioner (Revenue), Punjab & others’; and Civil Writ Petition No.1890 of 2008 titled ‘Mohinder Singh vs. Financial Commissioner (Revenue), Punjab & others’ in view of the fact that that three writ petitions have been filed by three contestants for the post of Lambardar for village Bhaglan, Tehsil Anandpur Sahib, District Rupnagar, that fell vacant on account of death earlier Lambardar, Raghunath Singh, father of Bir Singh (petitioner in CWP CWP No.4863 of 2009 [3] No.4863 of 2009) on 30.10.1998. 2. For reference to record and facts, Civil Writ Petition No.4863 of 2009 titled ‘Bir Singh vs. Financial Commissioner (Revenue), Punjab & others’ is being taken up. 3. The facts in brief are that three petitioners in the three writ petitions, were in the fray for appointment as Lambardar the other six having withdrawn their candidature. District Collector considered the comparative merit of the candidates and directed appointment of Mohinder Singh (respondent No.4) vide Order dated 10.11.2005 (Annexure P-2). Appeals were filed by the unsuccessful candidates which however were dismissed by Commissioner (Appeals), Patiala Division, Patiala vide Order dated 29.3.2007 (Annexure P-5). The order of Commissioner was challenged before the Financial Commissioner. Financial Commissioner has remanded the case to the Collector with the directions that applications be called afresh for appointment of new Lambardar in view of facts and circumstances of the case. 4. Learned counsel for the parties have referred to Para 7 of the writ petition to draw the attention of the Court towards comparative merit. 5. Learned counsel for Mohinder Singh CWP No.4863 of 2009 [4] (petitioner in CWP No.1890 of 2008) contends that without doubt, Mohinder Singh filed an application on 22.8.2005 before the District Collector withdrawing himself from the array of candidates for appointment as Lambardar. Learned counsel contends that vide Order dated 10.11.2005 (Annexure P-2), the application filed by Mohinder Singh was dismissed. 6. It has been argued that the other contesting candidates could have filed appeal against Order dated 10.11.2005 (Annexure P-2) which was not done and therefore, Mohinder Singh be appointed as Lambardar, and his petition viz. Civil Writ Petition No.1890 of 2008 be allowed. 7. Learned counsel for Upinder Singh (petitioner in Civil Writ Petition No.5055 of 2009) has argued that he is the best candidate being most educated being M.Sc. passed. Learned counsel contends that claim of Upinder Singh has been rejected only on the ground that he is a teacher. It has been argued that Upinder Singh is serving as a teacher in Himachal Pradesh, however, the village where Upinder Singh is posted, is on the border of Punjab and Himachal Pradesh, and therefore, there is no reason to believe that the said petitioner cannot discharge duties of a Lambardar effectively. CWP No.4863 of 2009 [5] 8. Learned counsel for petitioner, Bir Singh, has argued that there is no disability or ineligibility attached to the candidature of the petitioner. The petitioner is youngest of the three; has sufficient land required for appointment of a Lambardar viz. 38 kanals; 7th class passed; resident of same village of which he claims Lambardari; and has some experience of Lambardari being son of deceased Lambardar. 9. It has further been stated that the order of Financial Commissioner is per-se illegal vis-a-vis claim of the petitioner, in so much as, comparative merit of the petitioner has not been considered. It has been argued that there might be disability attached in the candidature for appointment of Mohinder Singh and Upinder Singh, however, no flaw could be traced in the claim of the petitioner, and therefore, rather than remanding the case, petitioner Bir Singh could have been appointed in place of Mohinder Singh. 10. I have considered the rival contentions in context of merits and demerits of candidates. 11. So far as claim of Mohinder Singh (petitioner in CWP No.5055 of 2009) is concerned, it cannot be considered for the reason that Mohinder Singh withdrew his candidature for appointment as CWP No.4863 of 2009 [6] Lambardar vide written application dated 22.8.2005. Perusal of application dated 22.8.2005, placed on record as Annexure P-2 (in CWP No.5055 of 2009) indicates that Mohinder Singh has given in writing that no other candidate is suitable for the post except Upinder Singh, and therefore, application of Mohinder Singh be dismissed as withdrawn in favour of Upinder Singh who may be appointed as Lambardar. 12. It has rather been pointed out that Mohinder Singh earlier also gave an application on 9.9.2002 withdrawing his application for appointment as Lambardar that has been placed on record as Annexure P-1 with the record of CWP No.5055 of 2009. 13. It is thus evident that Mohinder Singh is an unwilling candidate and therefore, it would be wholly unreasonable to presume that such a person can discharge duties of a Lambardar as given out in Rule 20 of the Punjab Land Revenue Rules. In such circumstances, I am of the considered opinion that order of the District Collector for appointment of Mohinder Singh, despite his written withdrawal of application for appointment of Lambardar is without consideration of relevant facts and parameters, and therefore, is illegal and perverse. CWP No.4863 of 2009 [7] 14. So far as claim of Upinder Singh (petitioner in CWP No.1890 of 2008) is concerned, clearly the claim of Upinder Singh for appointment as Lambardar for village Bhaglan, could not have been considered favourably in view of the fact that he is serving as a teacher in Government employment in Himachal Pradesh. It is a transferable post. The issue has been considered by this Court. The following has been held in judgment dated 25.1.2011 rendered by this Court in Civil Writ Petition No.1395 of 2011 titled ‘Bhag Singh vs. Financial Commissioner, Appeals-II, Punjab & others’:- “11. I am, however, not convinced with the argument in so much as the petitioner is serving on a transferable post, though within the district. The issue of availability of Lambardar in the village is required to be considered in context of duties to be discharged by such functionary. Duties to be discharged by a headman/ Lambardar are given out in Rule 20 of the Punjab Land Revenue Rules which when extracted, read as under:- “20. Duties of headman.- In addition to the duties imposed upon headman by law for any purpose, a headman shall— (i) collect by due date all land revenue and all sums, recoverable as land revenue from the estate, or sub-division of an estate in which he holds office, and pay the same personally or by revenue money order or by remittance of currency notes through the post [or at places where treasury business is conducted by the {State Bank of India or any Scheduled Bank as notified by the State Government from time to time}, by cheque on a local Bank] at the CWP No.4863 of 2009 [8] place and time appointed in that behalf to the Revenue Officer or assignee empowered by Government to receive it; (ii) collect the rents and other income of the common land, and the account for them to the persons entitled thereto; (iii) acknowledge every payment received by him in the books of the landowners and tenants; (iv) defray joint expenses of the estate and render accounts thereof as may be duly required of him; [(v) report to the Tehsildar the death or any assignee of land revenue or Government pensioner residing in the estate, or the marriage or re-marriage of a female drawing a family pension and residing in the estate, or the absence of any such person for more than a year]; [(vi) report to the Tehsildar and Collector all encroachments on and injury to the roads, public streets and Government, Nazul and Panchayat land;] (vii) report any injury to Government buildings made over to his charge; (viii) carry out, to the best of his ability, any orders that he may receive from the Collector requiring him to furnish information or to assist in providing on payment supplies or means of transport for troops or for officers of Government on duty; (ix) assist in such manner as the Collector may from time to time direct at all crop inspections, recording of mutations, surveys, preparation of records of right, or other revenue business carried on within the limits of the estate; (x) attend the summons of all authorities having jurisdiction in the estate, assist all officers of the Government in the execution of their public duties, supply, to the best of his ability any local information which those officers may require, and generally act for the landowners, tenants and residents of the estate or sub-division of the estate in which he holds office in their relations with Government; (xi) report to the Patwari any outbreak of disease among animals [or human beings]; (xii) report to the Patwari the deaths of any right- holders in their estates; CWP No.4863 of 2009 [9] (xiii) report any breach or cut in a Government irrigation canal or channel to the nearest canal officer, or canal Patwari; (xiv) under the general or special directions of the Collector, assist by the use of his personal influence and otherwise all officers of Government and other persons, duly authorised by the Collector, in the collection and enrolment of recruits for military service whether combatant or non-combatant; (xv) render all possible assistance to the village postman, while passing the night in the village, in safeguarding the cash and other valuables that he carried.” 12. Consideration of the nature of duties indicates that a Lambardar is required to remain present, by and large at all hours, in the village for discharge of his duties. The duties involve active interaction with the villagers/ residents of the area. Headman/ Lambardar is required to be aware of the deaths in the village for various reports to be made. He is required to be aware of the pensioners residing in the estate; marriage/ re-marriage of a female drawing family pension residing in the estate or in case any such person goes absent from estate. He is also required to be aware of the encroachments on roads or Government buildings within the boundaries of estate. He is required to conduct crop inspections so as to assist the Collector. He is further required to attend the summons of authorities having jurisdiction in the estate and assist all officers of the Government in execution of their public duties. 13. In case the petitioner is appointed as Lambardar, other than the fact that petitioner is required to serve as teacher for fixed hours during the day and is serving on transferable post, he CWP No.4863 of 2009 [10] might not be available so as to effectively discharge the duties, as given out in Rule 20 of Punjab Land Revenue Rules, as extracted above, which require day to day presence in the area. So as to give assistance to the officers visiting the village, hypothetically, the presence of Lambardar may be required, however, the petitioner in view of his nature of service might be required to remain present in the school and therefore, would fail in the performance of duties of a headman/ Lambardar. 14. In Sukhminder Singh’s case (supra), it has been said that a Government servant is fully eligible for appointment as Lambardar and he cannot be ignored only on that account if he is otherwise eligible and suitable for that post. 15. In view of nature of duties and the discussion above, petitioner might be eligible, however, he is not suitable for being appointed as Lambardar. In such circumstances, the conclusions drawn by District Collector and the Financial Commissioner do not suffer from any legal infirmity and call for no interference in extraordinary writ jurisdiction. It is the District Collector who is to extract work from a headman in village in terms of his duties under the Rules. He is the best authority to see suitability of the person. A circumstance has been taken into account which is not de hors reasons. No interference in the order passed by District Collector was called for at the instance of Commissioner, and therefore, order passed by Financial Commissioner is legally tenable. 16. No ground for interference CWP No.4863 of 2009 [11] in extraordinary writ jurisdiction is made out.” 15. Considering the above extracted portion, it is clear that Upinder Singh could not have been considered for appointment as Lambardar for village where he is not ordinarily residing, rather his job compulsions require his presence during the day/ office hours in a village in Himachal Pradesh. Likelihood of Upinder Singh being transferred can also not be ruled out and therefore, it would also be wholly unreasonable to consider Upinder Singh as Lambardar. Clearly Upinder Singh is not suitable for appointment of Lambardar for village Bhaglan, he might although be eligible. 16. So far as the case of Bir Singh, petitioner, is concerned, no disability/ ineligibility in his claim can be traced. Suitability/ ineligibility of Bir Singh for appointment as Lambardar has not been considered by the Financial Commissioner while dealing with the issue. Merely because counsel for Bir Singh was not present before the Financial Commissioner, would not mean that while exercising revisional jurisdiction, the record in relation to claim of Bir Singh was not to be considered. CWP No.4863 of 2009 [12] 17. Since there were three candidates and some kind of a problem in eligibility or disability could be traced in the claim of two candidates, it was imperative for the Financial Commissioner to consider the claim of 3rd candidate viz. Bir Singh. If Bir Singh is found eligible and suitable, there is no reason to remand the case to the level of District Collector for inviting fresh applications for appointment as Lambardar. In regard to claim of Bir Singh, I find the order passed by the Financial Commissioner to be without reasons and therefore, illegal. 18. Lambardari for the village came open in the year 1998. Substantial time has elapsed without a regular Lambardar. In such circumstances, this Court considers it appropriate to remand the matter to the Financial Commissioner. 19. Impugned order dated 11.1.2008 (Annexure P-7) is hereby quashed. All the three petitions are allowed. 20. The matter is remanded back to the Financial Commissioner (Revenue), Punjab to enable him to consider the issue and pass appropriate orders as required by law in view of what has been held above. CWP No.4863 of 2009 [13] 21. Parties are directed to appear before the Financial Commissioner (Revenue), Punjab, on 1.3.2011. In view of the delay already caused, the Financial Commissioner is requested to dispose of the case within two months of the date fixed. 22. Copy of the order be given under signatures of Reader of the Bench. (AJAI LAMBA) February 08, 2011 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?