CIVIL WRIT PETITION NO.19288 OF 2007 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: FEBRUARY 13, 2009
Gurdev Singh
.....Petitioner
VERSUS
Financial Commissioner (Appeals-II), Pb., Chandigarh
and others.
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Jatinder Singla, Advocate,
for the petitioner.
Mr. Vijay Sharma, Advocate,
for respondent No.4.
****
RANJIT SINGH, J.
The post of Lambardar of village Bhamaddi, Tehsil
Khanna, District Ludhiana seems to be jinxed. The process of
appointment is on since August 1994 but is yet to acquire finality.
On the death of Pakhar Singh, the process to fill the
vacancy was initiated. Proclamation was made on 27.10.1995. Four
persons, including the petitioner and respondent No.4, were the
CIVIL WRIT PETITION NO.19288 OF 2007 :{ 2 }:
applicants. Collector appointed the petitioner as Lambardar on
15.5.1996. Order in this regard is Annexure P-1. Respondent No.4,
Hardip Singh, filed an appeal before Commissioner, who remanded
the case back to the Collector, on 24.8.1998 to decide the same
afresh. District Collector, however, found that none of the candidate
was suitable and he accordingly issued fresh Proclamation on
12.1.1999, inviting fresh applications. This order was challenged
before the Commissioner, who set-aside the order dated 12.1.1999
and directed the Collector to decide the case after considering the
merits and demerits of both the candidates that had remained in the
field. District Collector was also required to decide the case
preferably within three months from the date of receipt of copy of the
order. This time, District Collector appointed respondent No.4 as
Lambardar on 20.11.2001. He found that said respondent was highly
qualified and younger in age.
Now it was petitioner’s turn to file appeal against this
order. Commissioner allowed the appeal and set-aside the order
passed by Collector through his order dated 26.3.2003. He
appointed the petitioner as Lambardar in place of respondent No.4.
This order was challenged by respondent No.4 before Financial
Commissioner, who has now set-aside the order of Commissioner
and has restored the order passed by the Collector. The petitioner
has, therefore, filed the present writ petition to challenge the order
passed by the Financial Commissioner.
While issuing notice of motion, this Court directed the
parties to remain present. Respondent No.4 could not come present
on 19.3.2008. The case ultimately came up for hearing today, when
CIVIL WRIT PETITION NO.19288 OF 2007 :{ 3 }:
the parties are present.
Counsel for the petitioner submits that respondent No.4 is
working as a Teacher and as such, would not be in any position to
devote time to perform the duties of Lambardar, which fact was taken
into consideration by the Commissioner. Counsel also points out that
respondent No.4 was involved in a case under Section 304B IPC and
as such, was not fit to be appointed as Lambardar. Reference is
made to a decision given in Civil Writ Petition No.16513 of 2006
(Amarjit Singh Vs. Financial Commissioner and others),
decided on 7.11.2008 to buttress the submission that a person who
is working as a Teacher, would not be fit for being appointed as a
Lambardar. In this regard, Division Bench of this Court has observed
as under:-
“In the present case, we find that the order of the
Collector was wrongly interfered with, merely on the
ground that respondent No.4 was the son of the
deceased Lambardar and is M.Sc. Pass. It was not taken
into consideration that he is a Government Servant and
liable for frequent transfer. He will either have to leave the
school premises to attend to his revenue duties or attend
the school and ignore his duties in the Tehsil. The
Lambardar is required for the purpose of identification of
the person in the Village, Police Station, before the
Registrar and others for attestation of documents and
also to attend the Revenue Officers, in connection with
measurement, spot verification, preparation of
Jamabandies, Khasra Girdawaris etc. A person doing a
CIVIL WRIT PETITION NO.19288 OF 2007 :{ 4 }:
Government job and especially, if it is a teaching job, will
not be able to do justice to either of the two functions.”
Counsel also refers to the observations made in the case
of Kabul Singh Vs. The Financial Commissioner, Punjab, 2006
(2) PLR 213 where registration of a criminal case against candidate,
though acquitted, was considered an infirmity for appointment of
Lambardar. Writ petition filed by such a candidate to challenge his
rejection was dismissed on the ground that he was involved in a
criminal case and, thus, had not been able to maintain clean record.
In the case of Jog Dhian Vs. Financial Commissioner, Haryana
and others, 2005 (2) PLR 306, involvement in a criminal case was
considered to be a stigma, which is not completely washed of by
acquittal and, thus, the choice of the Collector to appoint other
candidate with equal merit was not interfered with.
In contrast, counsel for respondent No.4 would submits
that respondent No.4 can not be ignored simply on the ground that
he is in Government service. He would also highlight that Tehsildar
and Sub Divisional Magistrate had recommended the name of
respondent No.4 and that the Collector had appointed him, which is
required to be preferred in terms of the law laid down by this Court as
well as by Hon’ble Supreme Court. To justify that respondent No.4
would be able to attend to the duties of Lambardar, though he is a
Teacher, the counsel contends that the school is located at 3.5 K.Ms
from the village and working hours are from 8 A.M. to 2 P.M. The
counsel also points out that respondent No.4 is working as a
Lambardar for 5 years and there has been no complaint about his
non-availability. Highlighting the merit of respondent No.4, the
CIVIL WRIT PETITION NO.19288 OF 2007 :{ 5 }:counsel say that he is younger in age and owns more land than the
petitioner. Submission also is that respondent No.4 has been
acquitted of the allegation made against him under Section 304 B
IPC. He points out that respondent No.4 was found innocent during
investigation but was subsequently summoned by the Court in
exercise of jurisdiction under Section 319 Cr.P.C. but was acquitted.
To highlight the scope of interference by the High Court, the counsel
has drawn my attention to Mahavir Singh Vs. Khiali Ram & Ors.,
2009 (1)RCR (Civil) 757.
The scope of interference by the High Court in exercise of
jurisdiction under Article 226 of Constitution of India would be limited
as observed by the Hon’ble Supreme Court in Mahavir Singh’s
case (supra). While exercising jurisdiction under Article 226 of the
Constitution of India against the order passed by the Tribunal
exercising quasi-judicial functions, the High Courts are concerned
with correctness of the decision making process and not the decision
as such. Thus, the High Court may not be required to see the
comparative merit of the case and then opine on the decision as
made by the quasi-judicial authorities. It is to be seen if the
Tribunal/authorities while considering the case of the parties have
committed any error in the decision making process or not. The way
the Collector and other authorities have been wavering in passing
one order and another would not speak well of them. Respondent
No.4 is highly qualified but he suffers an infirmity, being in
Government service. It is certainly a factor which can be taken into
consideration by the authorities while appointing him for the post of
Lambardar. He is younger which is an advantage in his favour but he
CIVIL WRIT PETITION NO.19288 OF 2007 :{ 6 }:has not been able to maintain a clean record and had faced
prosecution for a serious charge under Section 304B IPC. He may
have earned acquittal but that in itself would not mean that he has
maintained a clean record. In the cases of Kabul Singh (supra) and
Jog Dhian (supra), two different Division Benches of this Court
considered this aspect and came to take a view that even acquittal
from a criminal charge would not be enough to ignore this fact while
considering a person for appointment as Lambardar. After all,
Lambardar is required to have a dealing with the people at large and
they must have a confidence in Lambardar, which, to an extent,
would get dented if someone has remained involved in a criminal
case and is appointed. Acquittal in our system of criminal trial would
mean that the prosecution has not been able to prove the charge. On
the other hand, the advance age of the petitioner otherwise would be
a disadvantage against him, who is also 9th Class pass. The
petitioner has to his credit that he has remained as Sarbrah
Lambardar and is a son of Lambardar. He has been performing
duties of a Lambardar after death of Pakhar Singh. Thus, he has a
hereditary claim in his favour to show. He may have some
disadvantage so far his education qualification and the land holding
is concerned. Thus, both the candidates seem to be suffering from
some infirmity or the other and do not appear to have a clear merit
over each other for being appointed as a Lambardar. The process of
selection as such, apparently has suffered because the authorities
have not considered all these factors while appointing either the
petitioner or respondent No.4. The Collector was justified in ordering
fresh proclamation, when the petitioner and respondent No.4 alone
CIVIL WRIT PETITION NO.19288 OF 2007 :{ 7 }:were left in field, which order was set-aside by the Commissioner.
This is an appropriate case where the choice for appointment needs
to be taken for wider consideration.
I would, thus, consider it appropriate to set-aside the
entire process and would quash the order passed by the Collector,
Commissioner and the Financial Commissioner with a direction to the
Collector to initiate a fresh process for appointment of Lambardar, by
making a fresh proclamation and after receiving fresh applications.
The writ petition is disposed of in the above terms. The
Collector would initiate the process of appointment of Lambardar in
the village expeditiously as the issue is pending since long.
February 13, 2009 ( RANJIT SINGH ) khurmi JUDGE