Full Judgment
LPA No.554 of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.554 of 2012 Pronounced on:
20. h March, 2013 Rattan Singh ....Appellant VERSUS Financial Commissioner, Haryana and others ....Respondents CORAM: HON'BLE Mr.JUSTICE RAJIVE BHALLA HON'BLE MRS.JUSTICE REKHA MITTAL Present: Mr.Mani Ram Verma, Advocate, for the appellant.
Mr.D.Khanna, Addl.A.G., Haryana, for respondents No.1 to 3.
Mr.L.N.Verma, Advocate, for respondent No.4.
******* RAJIVE BHALLA, J.
The appellant prays that order dated 24.01.2012, dismissing his writ petition, order passed by the Collector, appointing Mahavir Singh, respondent No.4, as the lambardar, and order passed by the Financial Commissioner, may be set aside.
Counsel for the appellant submits that as the Collector and the Financial Commissioner have appointed respondent No.4 on the basis of his hereditary claim but as the Collector has neither considered not discussed the appellant's merits, the order passed by the Collector is perveRs.and arbitrary.
The Commissioner, therefore, rightly set aside the order passed by the Collector and remitted the matter to the Collector, to consider the appellant's merits.
The Financial Commissioner set aside this order.
The order passed by the Financial LPA No.554 of 2012 -2- Commissioner was set aside in CWP No.511 of 2008 by remitting the matter to the Financial Commissioner and it was directed that the matter be decided afresh.
After re-consideration, the Financial Commissioner, vide order dated 25.10.2010, once again affirmed his earlier order by not only relying upon the hereditary claim of respondent No.4 but also holding that as he has worked as sarbarah lambardar and his name has been recommended by subordinate revenue authorities, he is the best candidate.
The writ petition, challenging order dated 25.10.2010, passed by the Financial Commissioner has been dismissed without considering the merits of the appellant or the fact that the Collector and the Financial Commissioner have relied upon the hereditary claim of respondent No.4.
The findings recorded by the Financial Commissioner that the words “consideration shall be had amongst other matters”.
appearing in Rule 19(c) of the Punjab Land Revenue Rules (hereinafter referred to as the “Revenue Rules”.).would include factors other than those enunciated in Rule 19(c) of the Revenue Rules is correct but does not empower the Collector or the Financial Commissioner to consider a hereditary claim as a relevant factor.
An appointment based upon a hereditary claim is violative of Article 14 of the Constitution of India.
The impugned orders being illegal and void, may be set aside and the appeal may be allowed.
Counsel for respondent No.4 submits that the Collector and the Financial Commissioner (twice over) have recorded concurrent findings of fact that respondent no.4 is the better candidate.
The orders LPA No.554 of 2012 -3- have been affirmed by dismissal of the writ petition.
The impugned orders do not suffer from any error of jurisdiction or of law.
Admittedly, respondent No.4 has performed the duties of a sarbarah lambardar as his grandfather was a lambardar.
The order passed by the Commissioner, without recording a finding that the order passed by the Collector is perverse, arbitrary or contrary to law, has been rightly set aside.
We have heard counsel for the parties, perused the paper book and the impugned ordeRs.The principle that appellate and revisional authorities shall refrain from interfering with the choice of the Collector, except if it is contrary to law, perverse, arbitrary, violative of law or has been passed on irrelevant considerations or by ignoring relevant material, is too well known to require any further elucidation except to clarify that this rule of prudence does not render appellate and revisional authorities powerless or assign such a degree of finality to the Collector's order as to render it immune from scrutiny.
An appellate or revisional authority may, if circumstances so permit, interfere with the choice of the Collector but may not interfere to impose their own perception of the better candidate merely because another view may be possible on facts.
The appellant, respondent No.4, and others applied for the post of a backward class lambardar, of village Gohana.
The Collector, vide order dated 27.04.2006, appointed respondent No.4 as the lambardar and passed the following order: - LPA No.554 of 2012 -4- “6.
After hearing counsel for the parties, record was perused and it was found that this post is meant for backward class candidate.
All the four candidates belong to Backward Class.
Allegation against Mahavir Singh that he did not appear before S.D.O.(Civil) is having no significance not because this was remanded by order dated 11.8.2005.
So far as the allegation of criminal case against Rattan Singh is concerned, on that basis he cannot be considered disqualified and he has got no due certificate from Municipal Council.
More qualified candidate is to be appointed as Lambardar which includes experience also.
Mahavir has remained Sarbarah for seven years and he is having knowledge of Lambardari work.
Circle Revenue Officer and S.D.O.(Civil).Gohana has recommended his name.
On the basis of aforesaid facts, Mahavir is found more able than other three candidates.
Therefore, Mahavir Singh son of Ram Singh, resident of Wazirpur (Gohana) is appointed Backward Class Lambardar of Village Gohana in compliance of deceased Risal Singh.
Necessary entry be got made in the official record.
File be consigned to record room after compliance.”
A perusal of the order reveals that the Collector appointed respondent No.4 as he has served as sarbarah lambardar for seven years and as the Circle Revenue Officer and the SDO (C).Gohana, had recommended his name.
The merits of the appellant though recorded, while narrating the facts, are not referred or considered in the operative part of the order.
The appellant and Laxman son of Brij Lal, another candidate, filed separate appeals.
The Commissioner, Rohtak Division, Rohtak, vide order dated 07.12.2006, accepted the appeals, set aside the order passed by the Collector and remanded the matter, for a fresh consideration, after holding as follows: - “8.
After hearing arguments from both the sides and perusing through the relevant record brought on the file, I agree with the contention of the counsel for the appellant, Shri Rattan Singh that since there is no provision for appointing a Sarbarah Lambardar under Rule 15 or 19 (c) of the Punjab Land Revenue Rules, the experience of Sarbarah Lambardar under B.C.Lambardari can not be given much weightage.
Similarly, principle of hereditary is also of no relevance in the present proceedings in view of the latest law on this aspect.
Resultantly, on the basis of remaining merits, the appellant Shri Rattan Singh appears to be having much more LPA No.554 of 2012 -5- contribution in almost all social and governmental programmes in which he has been very extensively participating as per certificates available on the lower court file.
The Revenue Officers have not given full consideration to this aspect.
Similarly, counsel for Shri Laxman has requested for re-considering his case on the ground that earlier before remanding of the case by the Collector, both Tehsildar and S.D.O.(Civil) had recommended his candidature on the basis of his extensive influence and popularity amongst the people due to which the prominent persons like Municipal Counsellors & Lambardars had recommended his candidature.
In these circumstances, both the cases are remanded back to the Collector to give fresh opportunity to all the three candidates to put across their view points on the basis of evidence available on the file and the case be decided afresh purely on merits.”
A perusal of the order reveals that the Commissioner has held that appointment of respondent No.4 on the basis of his hereditary claim is contrary to the law and the appellant appears to be the better candidate based upon his contribution in almost all social and governmental programmes.
A revision filed by respondent No.4 was allowed by the Financial Commissioner but his order was set aside in a writ petition and the Financial Commissioner was directed to reconsider the matter.
After reconsidering the matter, the Financial Commissioner once again allowed the revision, set aside the order passed by the Commissioner and restored the order passed by the Collector, by holding that as Rule 19(c) of the Revenue Rules does not preclude the Collector from considering factors other than those enumerated in Rule 19(c) of the Revenue Rules, the hereditary claim of Mahavir Singh, who is the grandson of a lambardar and has worked as a sarbarah lambardar, has been rightly considered.
A relevant extract from the order, reads as follows: - LPA No.554 of 2012 -6- “The Court of collector as well as my predecessor Financial Commissioner has passed detailed orders comparing the merits of both candidates.
Undoubtedly due regard have been given to the appellant Mahavir Singh being a grandson of a deceased Lambardar and he having worked as a Sarbara Lambardar for many yeaRs.I find nothing wrong in giving due consideration to this fact.
It is settled law of the land.
Otherwise also, Court of collector and FCR have found appellant Mahavir Singh to be possessing superior merits compared with those of the respondent Rattan Singh.
The most important factor which is in favour of appellant Mahvir Singh is that he was the choice of the collector and his name was also recommended by assistant collector as well as the SDC(C).There is no perversity or illegality in the orders of the collector.
The only legal issue raised by the respondent Rattan Singh has been duly discussed above and I do not find any illegality in the orders of the collector.
Keeping these factors in view, I accept the appeal and uphold the order of the collector and uphold the appointment of Mahavir Singh.”
A perusal of the order, passed by the Financial Commissioner, reveals that the hereditary claim of respondent No.4, as grandson of the deceased lambardar, has been held to be a relevant factor.
While holding as such, the Financial Commissioner has used the words “it is settled law of the land”.With due deference to the opinion recorded by the Financial Commissioner, the settled law of the land, in our understanding of the matter, is to the contrary, i.e., a hereditary claim, in whatever form, cannot be considered as a relevant factor while appointing a lambardar.
A backward class lambardar is appointed under Rule 19 of the Revenue Rules, as amended by the State of Haryana and though the post may not strictly be in the nature of a public appointment under the State, but as it entails the discharge of public duties in the aid and assistance of the local administration and for the benefit of the village community, the selection of a backward class lambardar must necessarily confirm to the parameters of equality set out in Article 14 LPA No.554 of 2012 -7- of the Constitution of India.
A claim for appointment to the post of lambardar, on the basis of a hereditary claim derived whether from a father or a grand-father, is repugnant to the principle of equality.
A feudal system may approve of an appointment on the basis of a hereditary claim but in a democracy based upon a written constitution, with equality as one of its linchpins, one cannot but frown upon preference to hereditary claiMs.in whatever form or garb.
The question of preference to a hereditary claim came up for consideration before a Division Bench of this Court in “Karnail Singh Versus State of Haryana”., 1973, PLJ 676.wherein after considering the nature of appointment to the post of a Lambardar, it was held as follows: - "xx xx xx xx The main consideration that may appear to have prevailed is that the person selected was connected by ties of blood or heredity with the last incumbent.
Shri Naubat Singh, the learned District Attorney for the State of Haryana, has argued that in actual practice other qualifications are also taken into consideration and the appointments are not made in all cases on the grounds only of heredity.
Practice apart, Rule 17(ii) may seem to attach too much importance to the claim of heredity and the selection of the successor is sought to be confined to a male lineal descendant or the nearest collateral.
Rule 17(ii) may seem to make discrimination or distinction on the ground of heredity or family connections.
This rule may, therefore, appear to be violative of the fundamental rights guaranteed by Articles 14, 15 and 16 of the Constitution of India.
Reference could in this connection be made to the Supreme Court rulings in Gazula Dasaratha Rama Rao v.
State of Andhra Pradesh and otheRs.AIR 196.Supreme Court 564, and The State of Assam and others v.
Kanak Chandra Dutta, AIR 196.Supreme Court 884.
Shri Naubat Singh has cited before us a Division Bench ruling of the Madras High Court in Rishikesavan Naidu v.S.Srinivasa Reddiar, AIR 196.Madras 178, but the facts in that case were altogether different.
The person who had been selected to the hereditary office in that case had no other rival in the field.
He would have been selected unopposed independently of his family connections with the deceased.
It was under these circumstances that it was held that heredity was no disqualification being selected to a particular past or appointment.”
A perusal of the above judgment reveals that while LPA No.554 of 2012 -8- considering Rule 17(ii) of the Revenue Rules, which relates to appointment of a scheduled caste lambardar, it was held that hereditary claim to the post of Lambardar is repugnant to Articles 14, 15 and 16 of the Constitution of India, whether referred to in the relevant rule or not, cannot be taken into consideration, while appointing a lambardar.
The ratio of this judgment applies to the appointment of a lambardar, whatever be the category to which a lambardar is sought to be appointed.
A hereditary claim, therefore, cannot be pressed into service as a relevant factor under the ambit of “other factors”.
whether directly or indirectly whether provided for in the Revenue Rules or not.
Another judgment that requires reference is “Bhagwan Singh Versus Financial Commissioner, Appeals-I, Punjab, Chandigarh and others”., 2008(4) RCR (Civil) 862:
2009. 1) PLR 82.
The Financial Commissioner was apparently unaware of these judgments but could not be unaware of Article 14 of the Constitution of India.
The findings recorded by the Financial Commissioner that preference can be given to a hereditary claim, is contrary to Article 14 of the Constitution of India and, therefore, legally incorrect.
The writ petition filed by the appellant was dismissed by holding that preference can be given to a hereditary claim where other merits are found to be almost equal and by relying upon the principle that “the choice of the Collector is final”.If we were to accept this enunciation of law, it would, in essence, introduce the vice of inequality, based upon a hereditary claim, the very vice that Article 14 LPA No.554 of 2012 -9- of the Constitution, seeks to prohibit.
With due deference to the opinion recorded while dismissing the writ petition, a hereditary claim cannot be considered whatever be the circumstance whether directly or indirectly, and whether 'other' factors or merits are equal or not.
An argument raised by counsel for respondent No.4 that as respondent No.4 has worked as a sarbarah Lambardar, his experience necessarily makes him the better candidate, in our considered opinion, would introduce a hereditary claim, indirectly.
A sarbarah lambardar is generally appointed from amongst sons/grand-sons of a lambardar and, therefore, grant of preference on account of experience as sarbarah lambardar, or considering it, as a relevant factor, would once again introduce a hereditary claim into the selection.
If a sarbarah (officiating lambardar) is appointed by inviting applications from eligible candidates, the situation would be different but where he is appointed as he is the son or grandson of a lambardar, such a service cannot be considered as a relevant factor.
The Commissioner, while setting aside the order passed by the Collector, has clearly held that the choice of the Collector is illegal as the hereditary claim of respondent No.4 has been considered.
We express our complete agreement with the order passed by the Commissioner.
An appointment based upon a hereditary claim violates Article 14 of the Constitution of India and renders such a consideration/selection illegal and void.
At this stage, it would also be appropriate to point out that LPA No.554 of 2012 -10- neither the Collector not the Financial Commissioner considered the merits of the appellant, particularly, his contribution in the social sphere.
The officer did not even choose to make a comparative assessment of the merits of the appellant and respondent No.4.
The social contributions of the appellant as referred to by counsel for the appellant, are that he got deposited Rs.35 lacs in small saving schemes, has served for welfare of the community as well as provided assistance to the District and State Administration, motivated 14 family planning cases, earned recommendation certificate for assisting in flood control, saved the life of a one and a half year old child during floods, earned appreciation certificate for participation in an eye camp, polio eradication programme, tree plantation, construction of school building, encouraging prohibition etc.and was also a member of the NCC.
The merits of respondent No.4 are as follow: - “2......Counsel for Mahavir Singh submitted that Mahavir is young man of 39 years and matriculate and has remained Sarbarah of deceased Lambardar for seven yeaRs.174 persons appeared in his favour.
Gram Panchayat passed resolution in his favour.
MembeRs.Municipal Council are also included in that list.
There is nine acres land in his and his father's name and there is also a tractor and Rs.11,000/- are in small saving deposit.
He has got done one family planning case.
Deceased Lambardar is his grand father.
He knows Lambardari and is resident of the village.
Rest of the candidates are residents of Gohana City.
He had been member of Block Samiti, shareholder of Sugar Mill, case pending in the Civil Court against him in which he was acquitted.
Naib Tehsildar and S.D.O.(Civil).Gohana also recommended the name of Mahavir......”
A prima facie appraisal of the comparative merits, reveals that the appellant appears to be a better candidate.
These facts were ignored by the Collector and the Financial Commissioner as well as by LPA No.554 of 2012 -11- the learned Single Judge while dismissing the writ petition.
We are conscious of the limits of our jurisdiction and that we should not express any final opinion on the merits of candidates but would be failing in our duty in pointing out that though the Financial Commissioner has recorded that the Collector has held that merits of Mahavir Singh are better and he is the choice of subordinate revenue officeRs.we are unable to discern any finding recorded by the Collector that Mahavir Singh is more meritorious on any other factor.
In view of what has been stated hereinabove, the appeal is partly allowed, order dated 25.10.2010, passed by the Financial Commissioner, Haryana, and order dated 24.01.2012, passed by the learned Single Judge, while dismissing the writ petition, are set aside and the matter is remitted to the Financial Commissioner, Haryana, to decide the matter afresh and in accordance with law, after excluding the hereditary claim, within three months of parties putting in appearance before him on 30.04.2013.
[ RAJIVE BHALLA ].JUDGE 20 h March, 2013 [ REKHA MITTAL ].shamsher JUDGE