IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1306 of 2011(O&M) Date of decision: 16.08.2011 Mohinder Singh …..Appellant versus Financial Commissioner, Appeals-II, Punjab and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Baldev Raj Mahajan, Advocate for the appellant Jasbir Singh, J. (Oral) CM No.3638 of 2011 In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed and 51 days delay in filing the appeal stands condoned. LPA No.1306 of 2011 This appeal has been filed against a judgment passed by the learned Single Judge on 28.1.2011, allowing CWP No.12738 of 2008, filed by respondent No.4. Dispute herein pertains to an appointment to the post of a Lambardar in village Thinda, tehsil Garhshankar, district Hoshiarpur. As per facts on record, after getting report from the lower revenue staff, the Collector appointed respondent No.4 as a Lambardar vide order dated 19.4.2005. The Collector, when rejecting claim of the appellant for the post, has noted that when in service, the appellant had committed an embezzlement and on account of that he was removed from service. The appellant went in appeal, which was allowed by the Commissioner vide order dated 9.3.2006. The Commissioner took notice only of a fact that the LPA No. 1306 of 2011(O&M) appellant was not dismissed from service, to the contrary he was retired from service and accordingly an order passed by the Collector was reversed. Respondent No.4 went in revision, which was dismissed by the Financial Commissioner vide order dated 23.1.2008. When dismissing the revision petition filed by respondent No.4, it was only said that the appellant has an edge over respondent No.4. Nothing more was discussed. Respondent No.4 came to this Court by filing CWP No.12738 of 2008, which was allowed by the learned Single Judge vide the impugned order in this appeal. The learned Single Judge has thoroughly examined the facts of this case. It was noted, as a matter of fact, that during a departmental enquiry, the appellant was held guilty of causing loss to the government, however, thereafter, on a representation filed by him before the Chief Minister Punjab, order of removal from service of the appellant was modified to the extent that from the basic pay of Rs.11660/, which he was drawing on 9.11.2000 in the pay scale of Rs.7220-11660, four annual increments be deducted so as to fix his pay at Rs.10300/-. It was further ordered that the reduction in pay shall remain effective till the date of his retirement. In the meantime, the appellant had already retired from service. Above facts clearly indicate that the taint which was leveled against the appellant, was not removed. He was punished for committing an embezzlement when he was in service. It is contended by counsel for the appellant that against respondent No.4, a criminal case was registered as such he is also not eligible for the post in dispute. We have seen a judgment passed by the Additional Sessions Judge on 27.8.2002 (Annexure A-1), it shows that the complainant did not support the case of the prosecution and after recording evidence of the prosecution, without recording statement of respondent 2 LPA No. 1306 of 2011(O&M) No.4 under Section 313 Cr.P.C., he was ordered to be discharged. Above said fact clearly indicates that there was no taint against respondent No.4. The learned Single Judge when giving relief to respondent No.4, after noting above said facts, has observed as under:- “In view of the statute position giving out the duties of a Headman, case law and the facts and circumstances of this case, it follows that the respondent no.4 committed misconduct while in service by way of committing embezzlement. The said respondent was removed from service. A review application against penalty of removal from service was filed. The quantum of punishment/ penalty has been reduced while passing order Annexure P-6, portion whereof has been extracted above. The finding of misconduct, however, stands endorsed. Only the sentence/ penalty has been modified. The nature of misconduct involves moral turpitude. This important and relevant circumstances could not have been ignored by the authorities while considering the issue of appointment of Lambardar, in context of the duties to be discharged by Lambardar. Despite such facts being available on record, the Commissioner and the Financial Commissioner have directed appointment of the respondent no.4 as Lambardar, while setting aside the order passed by the District Collector. Thus the important and relevant circumstance in regard to the character of respondent No.4 has been ignored. This 3 LPA No. 1306 of 2011(O&M) has caused manifest injustice rendering the impugned orders perverse and arbitrary.” We feel that the order passed is perfectly justified. The Collector is the best judge in the case of appointment to the post of a Lambardar. His decision can be interfered with only if it is perverse in law and on facts. No such illegality has been indicated. The Commissioner and the Financial Commissioner have passed orders in a very cursory manner. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 16.08.2011 (Augustine George Masih) gk Judge 4