CWP No.11140 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11140 of 2009 Date of Decision: July 28, 2009 Kashmir Singh ...Petitioner VERSUS Financial Commissioner, Co-operation, Punjab and others ...Respondents Present: Mr. Rai Singh Chauhan, Advocate for the petitioner. ***** S.S. SARON, J. This petition under Articles 226/227 of the Constitution has been filed by the petitioners seeking quashing of the order dated 15.05.2009 (Annexure P-7) passed by the Financial Commissioner, Co-operation, Punjab, Chandigarh (respondent No.1). 2. The dispute in the case relates to the appointment of Lambardar of village Shahpur Dogran, Tehsil and District Kapurthala. The process for filling up the vacant post of Lambardar of aforesaid village Shahpur Dogran was initiated by the District Collector, Kapurthala vide order dated 03.09.2002. A proclamation was made in the village by the Halqa Patwari and applications were called for from amongst the interested persons by 30.10.2002. The petitioner Kashmir Singh and Paramjit Singh Josan (respondent No.4) along with others submitted their applications for consideration for appointment as Lambardar. The Naib Tehsildar recommended the CWP No.11140 of 2009 -2- name of Paramjit Singh Josan (respondent No.4) for appointment as Lambardar. The Tehsildar, Kapurthala, however, recommended the name of the petitioner vide his report dated 09.03.2004 (Annexure P- 1) by observing that Paramjit Singh Josan (respondent No.4) is a government teacher and is in service. The matter was then considered by the Sub-Divisional Magistrate/Assistant Collector Grade-I, who recommended the name of Paramjit Singh (respondent No.4). In the consideration process by the District Collector, Kapurthala, the petitioner was found to be most suitable candidate for appointment as Lambardar. Accordingly, the District Collector, Kapurthala in terms of his order dated 29.06.2004 (Annexure P-4) appointed the petitioner as Lambardar of village Shahpur Dogran. Respondent No.4 aggrieved against the said order of the District Collector, Kapurthala filed an appeal before the Commissioner, Jalandhar Division, Jalandhar, who vide order dated 28.03.2006 (Annexure P-5) dismissed the same and maintained the order passed by the District Collector, Kapurthala. It was observed that respondent No.4 was a government teacher and would not be available for the villagers for 24 hours. Besides, mere high qualification was not enough for the post of Lambardar. Respondent No.4 aggrieved against the same filed a revision petition before the Financial Commissioner, Cooperation, Punjab, who vide order dated 15.05.2009 (Annexure P-7) directed the District Collector, to re-hear the case after giving notice to the concerned parties and after examining the case record and documents, decide the case afresh. It was observed that from the evidence brought on record a criminal case had been registered against the petitioner. Besides, it had CWP No.11140 of 2009 -3- been verified against him that he was in illegal possession of the village common land. It was also observed that a question had been raised about the residence of Paramjit Singh (respondent No.4) i.e. Whether he was residing in the village. Considering the said circumstances, it was held that the case needed to be probed into deeply and as to what would be the effect of the criminal case registered against the candidates. Besides, the District Collector it was observed should reconsider as to what has been the final outcome of the criminal cases and as to whether it would affect the appointment of a person as Lambardar. Moreover, the allegations of illegal possession of the village common land, it was observed, was also required to be considered deeply. The petitioner aggrieved against the order of the Financial Commissioner has filed the present petition. 3. Learned counsel for the petitioner has contended that the fact that respondent No.4 is in government service and holding a transferable job besides working with an instrumentality of the State, is not entitled to be considered for appointment as Lambardar and a person like the petitioner, who is readily available in the village and his services can be availed of was liable to be appointed. It is submitted that the petitioner is a permanent resident of the village and he is 52 years of age. Besides, is well educated and has studied up to 8th Standard. He owns 20 acres of land. As against this it is submitted that respondent No.4 owns only 3 and half acres of land. It is also submitted that the District Collector had appointed the petitioner as Lambardar and his choice is not to be interfered with and is final. The same is, therefore, liable to be upheld. CWP No.11140 of 2009 -4- 4. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and have perused the record. It is well known that indeed in the matter of appointment of Lambardar the choice of the District Collector is to be generally accepted. The Supreme Court in the case of Mahabir Singh Vs. Khayali Ram, 2009 (1) Recent Apex Judgement (SC) 442, held that where the Collector after considering the relevant merits of the candidates and observing the rules had appointed a particular candidate to the post of Lambardar, there is no ground to set aside the order of the Collector, which is not perverse. In the said case it was, however, also observed that the High Court in exercise of its powers of judicial review exercises a limited jurisdiction and is ordinarily concerned with the decision making process and not with the merits of the decision. Learned counsel for the petitioner has referred to the case of Sucha Singh Vs. Bhalwan, 1999(1) RCR (Civil)-614 (P&H), where this Court has held that if the evidence on record was sufficient to enable the Appellate Court to pronounce the judgment, the appellate Court may after resettling the issue, if necessary, decide the same even if the trial Court had proceeded on some other grounds. It was also observed that it was not proper for the Appellate Court to remand the case for a fresh finding on the ground that the party affected may not lose right to appeal. Therefore, according to the learned Counsel for the petitioner, the Financial Commissioner was not liable to remand the case. A reference has also been made to the case of Amarjit Singh Vs. Financial Commissioner, 2000(2) PLJ-456(DB) (P&H), CWP No.11140 of 2009 -5- where this Court held that mere factum of employment with the State government or any of its instrumentalities cannot per se be a disqualification for appointment. However, the onus of determining the person suitable for appointment as Lambardar rests with the prescribed authority (Collector). It was observed that the authority has the discretion to appoint a civil servant to work as Lambardar. That however cannot mean that a civil servant or a person working with the State instrumentality has an indefeasible right to be appointed. The only right of an applicant is that his claim should be considered. Learned counsel for the petitioner has also referred to the case of Nirbhey Singh Vs. Financial Commissioner, 2008(1) Local Acts Reporter Page 1 (DB) (P&H), to contend that it is well established that the person to be appointed on the post of Lambardar should be enjoying good reputation and an un-blemished image. Besides, he should have personal influence in the locality. It is submitted that the petitioner who was appointed as Lambardar by the District Collector, did enjoy good reputation and has an unblemished image. Besides, the petitioner has personal influence in the locality. Therefore, his appointment has erroneously been set aside. 5. There is no dispute to the propositions as of law as have been raised by the learned counsel for the petitioner. However, it may be noticed that the learned Financial Commissioner, in his impugned order dated 15.05.2009 (Annexure P-7) noticed the contention that Kashmir Singh (petitioner) was sentenced in a criminal case i.e. in case FIR No.63 dated 13.04.1968 for the offence under Section 325 Indian Penal Code. Apart from that Kashmir Singh (petitioner) was acquitted in a criminal case, besides a criminal CWP No.11140 of 2009 -6- case was pending against him. It was also noticed that Paramjit Singh (respondent No.4) is a government servant and apart from that he had been proceeded against in proceedings under Section 109 of the Code of Criminal Procedure, in which he was discharged. Besides, the grandfather of Paramjit Singh (respondent No.4) was Lambardar. It is in the said context that the Financial Commissioner, Cooperation, Punjab found that the matter needs to be deeply probed. The effect of the criminal cases that are pending or have been disposed of is a relevant factor which requires consideration in the decision making process. Besides, the fact that Paramjit Singh (respondent No.4) is a government employee and working as a teacher also requires to be considered in the decision making process. The said circumstances indeed are relevant factors which are required to be considered by the Collector, Kapurthala. Therefore, in the facts and circumstances no ground for interference with the order passed by the Financial Commissioner, Cooperation, Punjab is made out. The Supreme Court in Mahabir Singh's case (supra) has held that a writ Court could interfere with the findings of facts when the same inter alia are found to be perverse. It was held that while exercising the powers of judicial review, the High court exercises a limited jurisdiction and is ordinarily concerned with the decision making process and not with the merits of the decision. In the decision making process the Financial Commissioner has ordered the matter to be re-considered and take into consideration other relevant factors including the criminal case registered against the petitioner and its effect on his appointment as Lambardar. Besides, also consider the effect of respondent No.4 CWP No.11140 of 2009 -7- being employed as a teacher and the proceedings initiated against him under Section 109 of the Code of Criminal Procedure. This indeed is not an order, which can be said to be perverse or which otherwise prejudices the rights of the parties. Therefore, there is no merit in the present petition and the same is dismissed and the District Collector, Kapurthala, shall consider the matter a fresh in the light of the observations of the Financial Commissioner, Cooperation, Punjab. The District Collector in the consideration process shall, however, decide the case on the basis of evidence and material as adduced before him uninfluenced by any observation as regards the merits of the case as made in the order of Financial Commissioner or in the present order. The District Collector also consider the question as to who shall continue in the interregnum till the matter is finally disposed of and for the said purpose shall consider the fact that the petitioner has been working as Lambardar. July 28, 2009 (S.S. SARON) vcgarg JUDGE