Civil Writ Petition No.16202 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16202 of 2010 Date of decision:- August 4, 2011 Sher Jung Singh .....Petitioner VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH PRESENT: Mr. Pritam Saini, Advocate, for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana for the State. Mr. S.S. Dinarpur, Advocate, for respondent No.3. **** RANJIT SINGH, J. After the death of Lamberdar Gajender Kumar, a case for appointment of Lamberdar in General Category in Village Saran was initiated. The Collector, Yamuna Nagar, appointed the petitioner as Lamberdar on 18.8.2009. Respondent No.3-Karam Singh appealed against this order before the Commissioner, who set aside the order and appointed him as Lamberdar. This order was upheld by the Financial Commissioner on 11.8.2010. The main stress of the argument of the counsel for the petitioner is that respondent-Karam Singh was in unauthorized possession of the land and this fact was ignored by the Commissioner. Though the counsel has also made submissions on the relative merits of both the candidates, but has mainly submitted that this was enough to disqualify respondent No.3 for being Civil Writ Petition No.16202 of 2010 -2- appointed as Lamberdar. Plea thus, is that the relevant factor, was completely ignored by the Commissioner while interfering in the order passed by the Collector. Notice of motion was issued. Reply is filed by the respondent No.3. Counsel for respondent No.3, however, has highlighted the fact that what primarily weighed with the Collector to appoint the petitioner as Lamberdar was on the basis of hereditary claim. The provision requiring preference on the basis of hereditary, has been held ultra vires by this Court. The counsel, accordingly, submits that the Collector had taken into consideration the material, which was required to be excluded and hence, has decided on the basis of irrelevant material. Counsel pleads that the order passed by the Collector is bad on this count only. Counsel for respondent No.3 then refers to the order passed by the Commissioner, where this aspect has been noticed. The Commissioner has found respondent No.3 suitable on the basis of merits. The Financial Commissioner has also upheld the order passed by the Commissioner. I have considered the rival submissions made by the counsel for the parties. The evidence that respondent No.3 is in unauthorized possession of the Panchayat land is only on the basis of demarcation report. Respondent No.3 would have right to challenge the demarcation report and thereafter, he may or may not be declared to be in unauthorized possession. I have perused the order passed by the Collector. After comparing the relative merits of both the candidates, the Civil Writ Petition No.16202 of 2010 -3- Collector has apparently given weighage to the inheritance claim of the petitioner, as can be seen from the following observation:- “Apart from this, one of the most important facts is that Sher Jang Singh had got a right of inheritance for the post of Lamberdar because the deceased Lamberdar was son of his real uncle and son of the deceased Lamberdar, Sachin had withdrawn his application in favour of Sher Jang Singh.” Counsel for respondent No.3, therefore, is justified in making submission that this factor could not have been considered for assessing the relevant merits of the candidates concerned once the provision giving preference on the basis of hereditary claim has been held to be ultra vires being violative of Articles 14 & 16 of the Constitution. In this regard, counsel has placed reliance upon Bhagwan Singh Vs. Financial Commissioner (P&H), 2008 (4) RCR (Civil) 862. Counsel for respondent No.3 has also drawn my attention to the relative merits of both the candidates. The petitioner is older in age being 54 years old, whereas respondent No.3 is 41 years old. Respondent No.3 is matriculate, whereas the petitioner is 7th class pass. Land holding of respondent No.3 is also almost double than that of the petitioner. Respondent No.3 has also been member of the Panchayat and claims to be a blood donor. If this is so noticed, it will appear that what primarily weighed with the Collector was the hereditary claim for which he appointed the petitioner as Lamberdar. This could not have been considered validly. Thus, while passing the order for appointing the petitioner as Civil Writ Petition No.16202 of 2010 -4- Lamberdar, irrelevant material, which was legally ought not to have been taken into consideration, was so considered and the petitioner was appointed. On this ground, the Commissioner and the Financial Commissioner are justified in interfering with the order passed by the Collector. There is, thus, no case made out to interfere in the impugned orders passed by the Commissioner and the Financial Commissioner. The writ petition is, accordingly, dismissed. If at later stage, it is found that respondent No.3 is in any illegal or unauthorized possession of the Panchayat land, the petitioner may take any action or initiate proceeding in accordance with law. The writ petition is, accordingly, disposed of. August 04, 2011 (RANJIT SINGH) monika JUDGE