IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13874 of 2009 Date of decision : 7.9.2009 Pardeep Kumar ….. Petitioner Versus State of Haryana and Others ….. Respondents Present: Mr. Jitender S. Chahal, Advocate for the petitioner. **** S.S. SARON, J. On the death of Sh. Om Parkash, Lambardar of village Malikpur, the process was initiated for filing up the vacant office of Lambardar. The Tehsildar, Chhachhrauli got a proclamation conducted in the village and invited applications for consideration for appointment as Lambardar upto 13.12.2006. Three candidates namely Roshan Lal, Baljinder Kumar and Pardeep Kumar (petitioner) applied for the office of Lambardar within the prescribed time. Thereafter, applications of five more persons namely Prem Chand, Dharamvir, Ashok Kumar (respondent No.4), Parsh Ram and Surjit Kumar were received after the prescribed period. The said applications were rejected by the Tehsildar Chhachhrauli as they had not been received within the date fixed i.e. 13.12.2006. Therefore, only first set of applicants remained in the field for consideration for appointment as Lambardar. The name of Roshan Lal one of the candidates was not considered by the Tehsildar Chhachhrauli. The SDO (Civil)/Assistant Collector Grade I, Jagadhri recommended the name of Pardeep Kumar (petitioner) for appointment as Lambardar. Baljinder Singh one of the CWP No.13874 of 2009 [2] candidates withdrew his application. Ashok Kumar (respondent No.4) made a statement in the Court of SDO (Civil)/Assistant Collector Grade I, Jagadhri to the effect that no proclamation had been done in the village for the post of Lambardar. In this regard, a complaint had also been made to the District Collector, Yamuna Nagar. An inquiry regarding the proclamation being made or not was got conducted. The SDO (Civil)/Assistant Collector Ist Grade, Jagadhri found that the proclamation had in fact been got done and made in the village as per the report received from the Tehsildar Chhacchrauli who had been asked to enquire into the matter regarding proclamation being made or not made in the village inviting applications for consideration for appointment as Lambardar. Accordingly, the name of Pardeep Kumar (petitioner) was recommended by the SDO (Civil)/Assistant Collector Ist Grade, Jagadhri for appointment as Lambardar. The learned counsel for Ashok Kumar (respondent No.4), however, reiterated that in fact no proclamation had been done in the village. It was also submitted that the process for filling up the post of Lambardar had been initiated on an application of Ashok Kumar. Therefore, it was contended on behalf of Ashok Kumar (respondent No.4) that he should be heard and his case for appointment as Lambardar be considered. The District Collector, Yamuna Nagar vide order dated 20.5.2008 (Annexure P4) appointed the petitioner as Lambardar. As regards the claim of Ashok Kumar (respondent No.4), it was observed that he and four others had filed their applications after the prescribed date i.e. 13.12.2006. Ashok Kumar (respondent No.4) aggrieved against the order of the District Collector, Yamuna Nagar dated 20.5.2008 (Annexure P4) filed an appeal before the Commissioner, Ambala Division, Ambala Cantt. The Commissioner vide order dated 28.11.2008 (Annexure P6) dismissed the appeal. It was held that the Collector had rightly not considered the application of Ashok Kumar (respondent No.4). Ashok Kumar (respondent CWP No.13874 of 2009 [3] No.4) aggrieved against the order of the Commissioner preferred a revision petition before the learned Financial Commissioner, Haryana who vide order dated 27.1.2009 (Annexure P7) observed that in the present case, a number of applications were not considered for the office of Lambardar on the ground of delay in the receipt of application i.e. the applications had been received after the period of limitation. It was observed that while the case was being proceeded with by the Tehsildar, he should have instead of rejecting the application on technical ground considered all of them and recommended the best suitable person for the post. It was observed that in the present case Ashok Kumar (respondent No.4) had made an application well in time and his application should not have been rejected on the ground of delay. In the circumstances, the orders passed by the District Collector, Yamuna Nagar and the Commissioner, Ambala Division, Ambala Cantt. were set aside and the case was remanded to the Collector, Yamuna Nagar for considering all the applications afresh and decide the case after giving an opportunity of hearing to all the applicants. Another option, it was observed, could be to get fresh ‘munadi’ (proclamation) done in the village and apart from the existing applicants, also consider fresh applicants, if received in response to the ‘munadi’. The petitioner by way of the present petition under Articles 226/227 of the Constitution of India seeks quashing of the order dated 21.7.2009 (Annexure P7) passed by the learned Financial Commissioner, Haryana (respondent No.1). Learned counsel for the petitioner contends that Ashok Kumar (respondent No.4) had filed his application after the prescribed period for filing application. Therefore, his application was not liable to be considered. It is submitted that the application of Ashok Kumar (respondent No.4) was rejected CWP No.13874 of 2009 [4] by the Tehsildar on 28.12.2006 which order was not assailed and had become final. Therefore, the matter could not be re-agitated by respondent No.4. Besides, the learned Financial Commissioner has wrongly mentioned that in the present case Ashok Kumar (respondent No.4) had made his application within prescribed period which is against the factual position on record. After giving my thoughtful consideration to the matter, I find no merit in the same. The learned Financial Commissioner, Haryana while passing the order dated 21.7.2009 (Annexure P7) has ordered the matter to be reconsidered by taking into consideration all the applications that were filed may be even after the last date. Besides, another option could be to get fresh ‘munadi’ done in the village and apart from the existing applicants, also consider fresh applicants, if received in response to the ‘munadi’. It is well- known that where technical considerations and cause of merit are pitted against each other, the cause of merit is to be preferred and the petitioner cannot non- suit his contender on technical grounds. Besides, this Court in exercise of its power of judicial review, which is limited, does not sit in appeal over the decisions reached at by the revenue authorities. The decision that has been taken to consider Ashok Kumar (respondent No.4) for appointment as Lambardar is not in any manner erroneous or perverse. Ashok Kumar (respondent No.4) is the son of the deceased Lambardar Omparkash. The proceedings for filling up the post of Lambardar were initiated on his application. His grievance is that the ‘munadi’ was not conducted in the village. This matter though has been inquired into and it was observed that the munadi had been properly conducted. However, the learned Financial Commissioner, Haryana having found that all applicants who had even filed their applications after the last date of hearing should be considered. There is no illegality or perversity in the same. CWP No.13874 of 2009 [5] The contention that the order dated 28.12.2006 passed by the Tehsildar had become final as it was not assailed by Ashok Kumar (respondent No.4) is inconsequential. Ashok Kumar (respondent No.4), as already noticed, had staked his claim for consideration for appointment as Lambardar before the SDO (Civil)/Assistant Collector Ist Grade at the time of consideration of the case of others. Besides, he had also raised his objections during consideration of the case for appointment of Lambardar before the District Collector, Yamuna Nagar at the time of passing the order dated 20.5.2008 (Annexure P4). Ashok Kumar had also filed an appeal against the order dated 20.5.2008 (Annexue P4) passed by the Collector, Yamuna Nagar before the Commissioner, Ambala Division, Ambala Cantt which was dismissed on 28.11.2008 (Annexure P6). Thereafter, Ashok Kumar (respondent No.4) filed a revision petition before the learned Financial Commissioner, Haryana who has ordered fresh consideration vide order dated 21.7.2009 (Annexure P7). Therefore, it cannot be said that Ashok Kumar (respondent No.4) remained dormant or did not agitate his claim. The fact that he staked his claim before the SDO (Civil)/Assistant Collector Ist Grade and urged that no proclamation had been made in the village would show that he had assailed the matter regarding his claim not being considered and being proceeded against ex parte. Consequently, there is no merit in this petition and the same is accordingly dismissed. (S.S. SARON) JUDGE September 7, 2009 amit