IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1180 of 2011 Date of decision: 18.07.2011 Sanjay Kumar …..Appellant versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Ram Darshan Yadav, Advocate for the appellant Jasbir Singh, J. (Oral) C.M. No.3297 of 2011 In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed and 58 days delay in re-filing the appeal stands condoned. LPA No.1180 of 2011 This appeal has been filed against an order dated 29.3.2011, vide which, CWP No.14632 of 2010, filed by respondent No.6 (Samai Singh) was allowed. Orders passed by the Collector and the Financial Commissioner were set aside and the petitioner therein was ordered to be appointed as Lambardar of village Hansaka, tehsil and district Rewari. It is an admitted fact that the deceased Lambardar was father of respondent No.6. It is also an admitted fact that even before his father’s death, the respondent No.6 had been performing the duties of Lambardar as ‘Sarbrah’ of his father. LPA No.1180 of 2011 As per facts on record, after death of previous Lambardar, applications were invited to fill up the vacancy. Appellant and respondent No.6 were the contesting candidates. After getting report from the lower revenue staff, the Collector appointed the appellant as Lambardar of the village on 28.8.2008. It was observed as under:- “After hearing both the candidates and perusing the case file carefully. I have come to the conclusion that candidate Sanjay Kumar is younger to candidate Samay Singh. The respectables of the village have got recorded their statements for appointing him as Nambardar and he has good influence in the village and remains present in the village at all times whereas Sh.Samay Singh is serving out of station and does not remain present. Tehsildar and Sub Divisional Officer (C) Rewari have also recommended the name of this candidate. Therefore, keeping in view all the points and perusing all the facts available on the file, candidate Sanjay Kumar is more suitable candidate. Therefore, Sanjay Kumar son of Sh.Kanwar Singh, resident of Hansaka is appointed as Nambardar of village Hansaka in place of deceased Nambardar Deendayal. A copy of the order be sent to the Tehsildar, Rewari.” Respondent No.6 went in appeal, which was allowed by the Commissioner vide order dated 10.6.2010. The Commissioner reversed an order passed by the Collector on a ground that it was perverse on facts. It was noted by the Commissioner that respondent No.6 was better educated, distinguished ex-serviceman, having bigger land holding and also had experience of working as Lambardar. It was further noted by the 2 LPA No.1180 of 2011 Commissioner that it was wrongly taken against respondent No.6, by the Collector, that he was not resident of the village. The said finding was given by noting that there is nothing on record to support the above said conclusion given by the Collector. Appellant went in appeal, which was allowed by the Financial Commissioner without meeting the reasoning given by the Commissioner and simply by stating that the order passed by the Collector, who is best judge to appoint a Lambardar, should not be interfered with. At that stage, respondent No.6 came to this Court by filing CWP No.14632 of 2010, which was allowed vide the impugned judgment. The learned Single Judge, after noting merits of both the candidates and forming an opinion that the candidature of respondent No.6 was rejected by the Collector without any justification, reversed the orders passed by the Financial Commissioner 10.6.2010 and the Collector dated 28.8.2008 and restored the order passed by the Commissioner on 26.11.2009. To appoint respondent No.6 as Lambardar of the village, it was observed as under:- “6. The petitioner is graduate; 52 years of age; ex-army personnel with commendations from the Chief of Army Staff; has served as Sarbrah Lambardar during the life time of his father who was a Lambardar; and owns 18 kanals of land. 7. Respondent No.6 is 28 years of age and matriculate. Admittedly, father of Sanjay Kumar (respondent No.6) owns land, however, no land has been mutated in the name of the private respondent. So far as social service is concerned, both the candidates have some deposits in their account and therefore, that aspect of the matter is comparable. 3 LPA No.1180 of 2011 8. Considering the comparative merit of the petitioner with respondent No.6, Commissioner allowed the appeal of petitioner vide Order dated 26.11.2009 (Annexure P-2). There is detailed reference to every aspect noted above. 9. The Financial Commissioner has upset the order of Commissioner, vide Order dated 10.6.2010 (Annexure P-3), primarily on the ground that Collector is the best judge to decide the suitability of a person and his discretion in the matter should not be interfered with unless it is proved beyond doubt that the selected person has positive disqualifications which debars him from appointment. 10. Commissioner is the appellate authority and is required to consider the facts and circumstances of the case, including comparative merit. It is not in dispute that respondent No.6 was convicted for commission of offence under Section 188 IPC, although in the year 1998. Other than that, the respondent is less educated as compared to the petitioner and does not own any land in his name. 11. Petitioner, to the contrary, is ex-army personnel with commendations to his credit. The service rendered to the country, while in the Army, cannot be ignored. Petitioner owns approximately 18 kanals of land, and is more educated. Under such circumstances, I am of the considered opinion that the appellate forum i.e. Commissioner did not commit any illegality in interfering with the order passed by Collector. Considering the comparative merit, in peculiar facts and circumstances of the case, it was not appropriate for the 4 LPA No.1180 of 2011 Financial Commissioner to ignore the consideration of comparative merit of the applicants by the appellate forum i.e. the Commissioner. Higher education, Ex-Army status, conviction and land holding are relevant criteria to be taken into account. If this is not done, it shall be failure on the part of the appellate authority in exercising its appellate powers. Considering the facts and circumstances of the case, Order dated 26.11.2009 (Annexure P-2) passed by the Commissioner has to be upheld. We feel that the order passed is perfectly justified. It is true that Collector is the best judge to appoint a Lambardar and order passed by the Collector can be interfered only when it is perverse in law and on facts. As has been held by the learned Single Judge, the Collector passed an order contrary to the facts on record and by making observation regarding non- availability of respondent No.6 in the village without any evidence on record. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 18.07.2011 (Augustine George Masih) gk Judge 5