Civil Writ Petition No.14122 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.14122 of 2011 Date of Decision:20.10.2011 Rajbir ...Petitioner Versus The State of Haryana & Ors. ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Vikram Punia, Advocate for the petitioner. M ehinder S ingh S ullar , J . (Oral) The crux of the facts, which require to be noticed, for the limited purpose of deciding the sole controversy, involved in the instant writ petition and emanating from the record is that, in the wake of death of Hoshiar Singh, the post of Lambardar of village Garhi Sisana, Tehsil Kharkhoda, Distt.Sonepat had fallen vacant. After obtaining the necessary permission, the Naib Tehsildar got conducted the proclamation (Munadi) in the village. Consequently, five candidates, namely, Rajbir son of Hoshiar Singh (petitioner), Sanjay, Jitender Dahiya, Surender Singh and Bal Kishan son of Dharambir (respondent No.4) applied and lodged their respective claims for the indicated post of Lambardar. Lateron, Sanjay, Jitender Dahiya & Surender Singh withdrew their claims from the contest and petitioner and respondent No.4 remained in the fray. They appeared and the Tehsildar, after hearing them, recommended the name of Bal Kishan respondent No.4 for the post of Lambardar and they were specifically directed to appear before the SDO (C) on 16.10.2008 for further proceedings, by virtue of order dated 26.9.2008 (Annexure P1). 2. Inspite of specific direction to appear, since no body appeared on behalf of petitioner, so, the SDO (C) accepted the report of Naib Tehsildar & Civil Writ Petition No.14122 of 2011 -2- Tehsildar and recommended the name of Bal Kishan (respondent No.4) for the post of Lambardar, by way of order dated 16.10.2008 (Annexure P2). 3. Accepting the recommendation of Tehsildar & SDO ©, the Collector (respondent No.3) appointed respondent No.4 as Lambardar of the village, by means of order dated 31.12.2008 (Annexure P3). 4. Dissatisfied with the order (Annexure P3), the petitioner filed the appeal, which was dismissed as well, by the Commissioner, Rohtak Division (respondent No.2), through the medium of impugned order dated 19.11.2010 (Annexure P4). 5. Aggrieved by the orders (Annexures P3 and P4), the petitioner filed the revision petition, which was also dismissed by the Financial Commissioner (respondent No.1), by virtue of impugned order dated 1.3.2011 (Annexure P5). 6. The petitioner still did not feel satisfied with the impugned orders and preferred the instant writ petition, invoking the provisions of Articles 226/227 of the Constitution of India. 7. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the present writ petition in this context. 8. Ex facie, the argument of learned counsel that no opportunity of being heard was provided to the petitioner and since his counsel did not appear before the SDO (C) and Collector, so, he should not be allowed to suffer on account of negligence of his counsel, is neither tenable nor the observations of Hon'ble Apex Court in case Ram Kumar Gupta & Ors. v. Har Prasad & Anr. 2010 (1) RCR (Civil) 3 and of this Court in case Kanshi Ram v. Haryana State & Ors. 2004(4) RCR (Civil) 102 are at all applicable to the facts of the instant case. 9. As is clear, in Ram Kumar Gupta's case (supra), while deciding the application for restoration and considering the fact that no delay was caused by the petitioner in filing the application for restoration, who had been diligently Civil Writ Petition No.14122 of 2011 -3- prosecuting the litigation since 1982 and on the peculiar facts and in the special circumstances of that case, it was observed that it would be improper to punish the petitioner for non-appearance of his counsel. 10. Sequelly, in Kanshi Ram's case (supra), it was ruled that if the suit was dismissed in default for non appearance, due to illness of the petitioner, then it is a sufficient cause for its restoration. 11. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the petitioner in the present controversy. 12. As is evident from the record that, the petitioner and respondent No.4 appeared and after hearing them, the Tehsildar recommended the name of respondent No.4 and further directed both the candidates to appear before the SDO (C) on 16.10.2008 for further proceedings, by means of order (Annexure P1). On that day, neither the petitioner nor any body else appeared on his behalf and the SDO (C) recommended the name of respondent No.4 for the post in question and further directed him to appear before the court of Collector on 5.11.2008. Till that date, since no body appeared on behalf of petitioner and position remained the same, so, finding no alternative, the Collector appointed respondent No.4 on the post of Lambardar in question. 13. Assuming for the sake of argument (though not admitted), if the petitioner had engaged his counsel, who did not appear before the SDO (C) on 16.10.2008, then his natural conduct would have been to ascertain the date of hearing in his case before the SDO (C) and the Collector. He ought to have been more vigilant and exercised due diligence in this relevant connection. No cogent explanation is forth coming on record, as to why he did not inquire about the next date of hearing and participate in his case. The explanation put forth by the petitioner appears to be an after thought and the contrary contentions of his counsel “stricto sensu” deserve to be and are hereby repelled under the present set Civil Writ Petition No.14122 of 2011 -4- of circumstances. 14. Moreover, the Collector is the appointing authority of the Lambardar. The appointment of Lambardar is administrative function and is prerogative of the District Collector, being In-charge of the Administration. It is the duty of the Collector to appoint such persons in the office of Lambardar, who are eligible and competent to carry out the duties efficiently. He is in an advantageous position to examine the merits and demerits of the candidates. The choice of the Collector in the matter of appointment of village Lambardar should not normally be interfered with, unless the Collector has taken a perverse view and has not exercised his choice judiciously. 15. To my mind, the Collector has rightly appointed respondent No.4 as Lambardar of the village, vide order (Annexure P3), which is (paras 2 & 3) as follows:- “2. The candidate is present and has been heard. He has stated that he is 37 years of age, 12th pass, statements of 37 persons are in his favour, has while participating in the welfare programmes of the Government has contributed 5 cases of family planning, has got deposited Rs.4,75,000/- in the small savings scheme by encouraging the people, knows the work of Lambardari, is a permanent resident of the village and does not participate in party faction and seeks appointment as Lambardar of the village. 3. After hearing the candidate and perusing the record of the file the statement made by the candidate has been found to be correct. The character of the candidate has been found to be good. The Naib Tehsildar, Tehsildar Kharkhoda and the SDO (Civil), Sonepat have recommended his appointment. Therefore, keeping in view the recommendations of the lower revenue officers Shri Balkishan son of Dharambir is hereby appointed the general category Lambardar of village Garhi Sisana in place of the deceased Lambardar Hoshiar Singh son of Ram Sarup. An entry of the present order may be made in the records of the concerned departments and after the expiry of the limitation for filing appeal the Sanad Lambardari may be issued. The file may be consigned to the record room after due compliance.” 16. Not only that, having considered the comparative pros and cons of the petitioner and respondent No.4, the Commissioner came to the conclusion that Civil Writ Petition No.14122 of 2011 -5- respondent No.4 is more meritorious than the petitioner and has rightly upheld the choice of the Collector, vide impugned order (Annexure P4), which, in substance, is (para 4) as under:- “4. I have heard the arguments of ld.counsels of both the parties and have also taken into consideration the record of the case available on the file. From a perusal of the file it is clear that the respondent is more suitable candidate than the appellant. The respondent has participated in the welfare programmes of the Government and has also contributed towards the small savings scheme. The respondent is more young person compared to the appellant and is more educated whereas the appellant is 50 year old and is 5th class. After a perusal of the file it is found that the lower revenue officials have also recommended the appointment of the respondent as the Lambardar and the appellant does not have any solid proof whereby he could be considered as a better candidate than the respondent. In this manner, I have understood that the order passed by the Collector is based upon facts and there is no illegality surrounding the same. Therefore, I am in agreement with the reasoning of the ld. Counsel for the respondent that the choice of Collector cannot be interfered with unless there is some material irregularity in the same. As a result finding no force in the appeal of the appellant the same is hereby dismissed.” 17. The indicated order of Commissioner was further upheld by the Financial Commissioner, by way of impugned order (Annexure P5). The learned counsel for the petitioner did not point out any legal violation and material, much less cogent, to show as to how and in what manner, the impugned orders are illegal and would invite any interference in this relevant behalf. 18. No other meaningful argument has been raised by the learned counsel for the petitioner to assail the impugned orders. All other celebrated arguments, now sought to be urged on his behalf in this relevant direction, have already been duly considered and dealt with by the authorities below. 19. Meaning thereby, the authorities below have recorded the cogent grounds in this relevant connection. Such orders, containing valid reasons, cannot possibly be interfered with by this Court, while exercising the extraordinary Civil Writ Petition No.14122 of 2011 -6- jurisdiction of this Court under Articles 226/227 of the Constitution of India, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned orders (Annexures P3 to P5) deserve to be and are hereby maintained, in the obtaining circumstances of the case. 20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the petitioner. 21. In the light of aforementioned reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. (Mehinder Singh Sullar) 20.10.2011 Judge AS Whether to be referred to reporter?Yes/No