IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.8969 of 2002 Date of Decision : 04.11.2011 Maha Singh … Petitioner Versus The Financial Commissioner, Haryana and others …Respondents CORAM : HON’BLE MR.JUSTICE PARAMJEET SINGH Present: Mr.Bikram Chaudhary, Advocate for the petitioner. Mr.Sandeep S.Mann, Sr.DAG, Haryana for respondents No.1 to 3. Mr.I.K.Mehta, Sr.Advocate with Mr.R.K.Dogra, Advocate for respondent No.4. Paramjeet Singh, J. The petitioner Maha Singh had filed the present writ petition under Articles 226/227 of the Constitution of India for quashing order dated 20.8.2001 (Annexure P-11) passed by the Financial Commissioner, Haryana whereby the order of the Commissioner, Ambala dated 16.5.2000 appointing petitioner as Lambardar has been set aside. Brief facts of the case are that on the death of Harkesh Lambardar father of Ratti Ram respondent no 4 of village Geong, Tehsil and District Kaithal, a vacancy for the post of Lambardar occurred. The District Collector through his subordinate revenue staff invited applications to fill the said post of Lambardar. The proclamation was made in the village. Three person namely Maha Singh petitioner, Ratti Ram, respondent No.4 CWP No.8969 of 2002 and Bachna Ram submitted applications for the said post. The Naib- Tehsildar after the last date of submission of applications, recommended the name of petitioner Maha Singh and forwarded to the Tehsildar. The Tehsildar recommended the name of respondent No.4 Ratti Ram and submitted recommendations to Sub Divisional Officer (Civil), Kaithal. The Sub Divisional Officer (Civil), Kaithal concurred with recommendations of the Tehsildar and forwarded it to the Collector, Kaithal. The Collector, Kaithal, considered the merits and demerits of all the candidates and appointed the respondent No.4 Ratti Ram as Lambardar of the village being better candidate vide order dated 7.01.2000 (Annexure P-1). Petitioner being aggrieved against the order of the Collector preferred appeal before the Commissioner. The Commissioner set aside the order of the Collector dated 7.1.2000 (Annexure P-1) vide his order dated 16.5.2000 (Annexure P-2). Ratti Ram respondent being aggrieved against the order of Commissioner filed appeal before the Financial Commissioner. Financial Commissioner set aside the order of the Commissioner dated 16.05.2000 vide impugned order dated 20.08.2001 (Annexure P-11) and uphold the order of the Collector. Hence , this writ petition. I have heard learned counsel for the parties and perused the record of the case. A reference to the relevant rule for appointment of Village Headman in Punjab Land Revenue Rules (`Rules' - for short) would be beneficial to decide the controversy. The said rule reads as under:- 2 CWP No.8969 of 2002 "15. Matters to be considered in first appointments.-- In all first appointments of headman, regard shall be had among other matters to-- (a) his hereditary claims; (b) extent of property in the estate possessed by the candidate; (c) services rendered to the State by himself or by his family; (d) his personal influence, character, ability and freedom from indebtedness; (e) the strength and importance of the community from which selection of a headman is to be made; (f) services rendered by himself or by his family in the national movements to secure freedom of India." A perusal of the above Rule 15 of the Rules shows that in first appointment of Headman i.e Lambardar regards shall be had among others to hereditary claims. The hereditary claim for appointment of Lambardar cannot be the sole factor for appointment of Lambardar. It is one of the factors that can be taken into consideration. The learned counsel for the petitioner contended that the order of the Financial Commissioner is non-speaking, cryptic and without reasons. The order of the Financial Commissioner is not detailed. The learned counsel for the parties admitted that Ratti Ram-respondent No.4 was appointed Lambardar on 7.1.2000, and is performing the duties of Lambardar since then. He had been performing the duty of collecting land revenue after the death of his father since 1989. 3 CWP No.8969 of 2002 The learned counsel for the petitioner submitted that Maha Singh petitioner is 51 years and his date of birth is 10.4.1949 and he is higher secondary pass and also RMP and practice as doctor in the village, has 210 Kanals 08 Marlas land in Patti Jot Ram and 10 Kanals 05 Marlas in Aggri Patti and also has NCC certificate. He has been helping in the family planning and welfare programmes of the government. Rati Ram is 46 years old and is illiterate person, no record of his age is available. He owns 09 acres of land in Aggri Pati and had been depositing money in small savings and he worked for collecting land revenue as stop gap arrangement, such experience cannot be taken into consideration. No benefit of hereditary claim can be given to the respondent Rati Ram. The order of Financial Commissioner is non-speaking and without application of mind. It is submitted by the counsel for the petitioner that Maha Singh is more meritorious. Now under the amended rule middle pass is qualification prescribed the post of lambardar . He does not possess minimum educational qualification. The Commissioner had rightly appointed him Lambardar. It is true that petitioner has higher educational qualification where as Rati Ram respondent is illiterate. No minimum educational qualification was provided in the Rules, when the applications were invited and Rati Ram was appointed Lambardar by the Collector. Subsequent change in the Rules cannot operate to the disadvantage of the Rati Ram, retrospectively. So illiteracy of Rati Ram cannot be a ground to hold that order is perverse. I am not in agreement with the contention of the learned counsel for the petitioner and same is rejected. 4 CWP No.8969 of 2002 The availability of the Lambardar for the residents of the village is the basic requirement as the Lambardar is required to assist the villagers, government officials and render service to the State. He is supposed to identify the persons at the time of execution and attestation of documents such as sale, mortgage deed and other conveyance deed etc. before the Sub Registrar and other authorities. There is a categorical finding by the Collector that the availability of the petitioner for the village works is less since he is practicing the profession of doctor being a RMP. A RMP doctor cannot leave his patients and go to Tehsil and other places for works of the villagers. The Rati Ram respondent will be available to villagers and government officials. This fact has not been even rebutted by the Commissioner in his order. I am of the considered opinion that availability is also a crucial factor for making choice of Lambardar. Next contention of the learned counsel for the petitioner is that the Collector had appointed respondent No.4 on the ground that he is son of deceased Lambardar and has ancestral claim. Admittedly, ancestral claim has been held unconstitutional and only preference can be given to the candidates on this ground when the merit is taken into consideration. In the present case the Collector has not appointed respondent No.4 solely on the ground of ancestral claim to the post of Lambardar rather, he considered the merit of the respondent No.4 and the petitioner. Basically, the Collector had relied upon the factum of non-availability of the petitioner and to the contrary availability of respondent No.4 in the village and to the villagers and officials. Besides this, the factum of being son of the deceased Lambardar has also been taken into consideration. 5 CWP No.8969 of 2002 Admittedly, respondent No.4 Rati Ram is performing the duties of collecting land revenue since 1989 after the death of his father. The Financial Commissioner passed the order more than 11 years ago and respondent is performing the duties of Lambardar since then, nothing adverse against the respondent has been pointed by the State counsel as well as the counsel for the petitioner. Experience itself is a qualification specifically for the Lambardar who had to deal with the villagers and Government officials. This fact too cannot be lost sight. So, the contention of the learned counsel for the petitioner that respondent no.4 had gained experience as a stop gap arrangement cannot be taken into consideration, is not sustainable. Experience prior to advertisement of the post of Lambardar can certainly be taken into consideration. The Collector took this factor also into consideration while considering the merit of respondent no.4. It is admitted on record that petitioner as well as respondent No.4 have been depositing money in small saving schemes and also assisting the government officials in various family planning and other programmes of the government. So, in this regard, both the petitioner and respondent no.4 are at the same pedestal. It is settled law that choice of the Collector cannot be set aside lightly. It can only be set aside when his order is perverse, illegal and suffer from material irregularities and is violative of the rules and the procedures. The Commissioner while setting aside the order of the Collector had not recorded reasons in his order how the order of the Collector suffers from patent illegality and is perverse. He had only written the order of the Collector is perverse. It is, therefore, not a case where the finding of the Collector can be said to be perverse. It has also not been established that the 6 CWP No.8969 of 2002 Collector while taking a decision failed to take into consideration the relevant factors or based its decision on extraneous considerations or on irrelevant factors. In case of Mahavir Singh v. Khiali Ram and Others reported in 2009(3) SCC 439, the Hon’ble Apex Court has considered the controversy relating to appointment of Lambardar under Punjab Land Revenue Act, 1887 and rules framed there under. The Apex Court held that with regard to the appointment of a Lambardar in the State of Punjab, age of a candidate is a relevant factor. The Apex Court noticed few old cases of Lahore High Court which throw some light on the subject as under:- “In Lt. Malik Abbas Khan v. Ghulam Haidar (1940 Lahore Law Times 25), it was stated: “…It is certainly not wise, save in very exceptional circumstances, to appoint for the first time, an inamkhor or Zaildar whose age is 60” 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 7 CWP No.8969 of 2002 order is based on a misrepresentation of facts, there should still be no interference.” The Financial Commissioner had noticed the contentions of the parties and had recorded a finding that respondent (petitioner herein) has not brought out any point which prove that order of the Collector is patently perverse or illegal. Keeping in view of the settled law that choice of the Collector cannot be lightly set aside and also in view of the totality of the circumstances of this case, the remand of the case at this stage to the Financial Commissioner would result into unnecessary delay in deciding the controversy. In view of the above discussions, the present writ petition is dismissed being devoid of merit. No order as to cost. (PARAMJEET SINGH) JUDGE 04.11.2011 sd 8