JUDGMENT Mr. Rameshwar Singh Malik, J.: (Oral) - Feeling aggrieved against the order dated 8.8.2011 passed by the Financial Commissioner, Haryana, thereby setting aside aside the orders of appointment of the petitioner as Lambardar passed by the Collector and Commissioner, petitioner has approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing the impugned order. 2. Brief facts of the case are that proceedings were initiated in the village of the parties for filing up the newly created post of Lambardar. As many as seven persons applied. Finally, petitioner and respondent No.2 were in the fray. Sub-Divisional Officer (Civil), Ambala recommended the name of the petitioner. After comparing an considering the merits of both the candidates, District Collector, Ambala, vide his order dated 29.8.2007 (Annexure P-1), appointed the petitioner as Lambardar. Respondent No.2 filed his appeal before the Commissioner, Ambala Division, which was dismissed vide order dated 20.2.2008 (Annexure P-2). However, the revision filed by respondent No.2 was allowed by the Financial Commissioner, vide impugned order dated 8.8.2011 (Annexure P-3). Hence, this petition. 3. Notice of motion was issued and pursuant thereto, learned counsel for respondent No.2 appeared. Repeated opportunities were granted, but no written statement was filed on behalf of respondent No.2. 4. Learned counsel for the petitioner submits that petitioner was rightly appointed by the District Collector after considering merits of both the candidates. Appeal of respondent No.2 was also rightly dismissed by the Commissioner, whereas the Financial Commissioner has committed serious error of law, while allowing the revision petition of respondent No.2 vide impugned order dated 8.8.2011 (Annexure P-3). He next contended that in view of the certificate dated 18.11.2011 (Annexure P-4), respondent No.2 was a defaulter of Cooperative Society because of which, he was not even entitled to be considered for appointment to the post of Lambardar. He concluded by submitting that the impugned order may be set aside by allowing the writ petition. 5. On the other hand, learned counsel for respondent No.2 contended that the Financial Commissioner has rightly passed the impugned order because respondent No.2 was a better placed candidate in comparison to the petitioner. He prays for dismissal of the writ petition. 6. He concluded by submitting that the impugned order may be set aside by allowing the writ petition. 5. On the other hand, learned counsel for respondent No.2 contended that the Financial Commissioner has rightly passed the impugned order because respondent No.2 was a better placed candidate in comparison to the petitioner. He prays for dismissal of the writ petition. 6. Having heard the learned counsel for the parties at a considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the present writ petition deserves to be allowed, for the following more than one reasons. 7. It is the settled proposition of law that ordinarily choice of the Collector is not to be interfered with by the higher revenue authorities even if the appellate authority believes that the choice of the Collector was not the best choice. However, it is not the absolute rule that the choice of the Collector cannot be upset under any circumstances. The choice of the Collector can be upset but only when the order passed by the District Collector is found to be suffering from patent illegality, or perversity. 8. During the course of hearing, learned counsel for respondent No.2 could not point out any patent illegality or perversity either in the orders passed by the District Collector or the Commissioner. No such finding has been recorded even by the Financial Commissioner, while passing his impugned order. Thus, when the Financial Commissioner could not find any patent illegality, perversity or jurisdictional error in the orders passed by the District Collector and the Commissioner, he proceeded on an erroneous approach, while passing the impugned order, Annexure P-3, which cannot be sustained. 9. Before arriving at a judicious conclusion, while appointing the petitioner to the post of Lambardar, District Collector, Ambala, closely examined and compared the merits of both the candidates. The relevant part of the order dated 29.8.2007 (Annexure P-l) passed by the District Collector, Ambala, reads as under: “1. Sh. Gurdev Singh:- This candidate told that he has retired from the post of Inspector in the Haryana Roadways, Ambala Depot after serving for 35 years. He is healthy. He has deposited a sum of Rs.9,50,000/- as a fixed deposit (F.D.) and has also got deposited a sum of Rs.2,00,000/- in the bank. Sh. Gurdev Singh:- This candidate told that he has retired from the post of Inspector in the Haryana Roadways, Ambala Depot after serving for 35 years. He is healthy. He has deposited a sum of Rs.9,50,000/- as a fixed deposit (F.D.) and has also got deposited a sum of Rs.2,00,000/- in the bank. He has three acres of land. He is senior secondary passed. He does not participate in any political party. He is not a defaulter of any bank or society. He is always present in the village only. He told about other candidate that he does not reside in the village Dhurala and has constructed a house near Railway station Kesari and is running his school. Therefore, he prayed that he should be appointed as a Lambardar in the village Dhurala. 2. Rajneesh Kumar:- This candidate told that he belongs to schedule caste. He is 44 years old. He is inter and BA, B.Ed, knows hindi language and a diploma holder in living manure. He does not participate in any political party. He is not a defaulter of any bank or society. He bears good character. He is an Ex. Panch. He told that he has 8 plots in his name. He has also taken an insurance policy. I have heard both the candidates carefully and have gone through the facts come on record. Shri Gurdev Singh has retired from Haryana Government. He is a senior secondary. He is always available in the village. He has deposited a sum of Rs.9,50,000/- in fixed deposited under small savings scheme. He has three acres of land in the village. He is not a defaulter of any bank or society. As per police report his character is correct. More than 200 persons in the village have recommended his name to be appointed as a Lambardar, which proves his good reputation. Other candidate, Sh. Rajneesh Kumar is living in a house away from the village near Railway station and is running a school there. In this manner he cannot give services to the village people by residing out side the village. Therefore, I appoint Sh. Gurdev Singh as a Lambardar of village Dhurala, Sub Tehsil Saha of schedule caste being a better than other candidate Sh. Rajneesh Kumar and agreeing to the report of SDO (civil) Ambala. Sanad Lambardari be issued. File be consigned to record room after due compliance.” 10. Therefore, I appoint Sh. Gurdev Singh as a Lambardar of village Dhurala, Sub Tehsil Saha of schedule caste being a better than other candidate Sh. Rajneesh Kumar and agreeing to the report of SDO (civil) Ambala. Sanad Lambardari be issued. File be consigned to record room after due compliance.” 10. Similarly, Commissioner, Ambala Division, also reconsidered the merits of both the candidates and dismissed the appeal filed by respondent No.2, vide his order dated 20.2.2008 (Annexure P-2). The relevant observations are as under: “I have heard the arguments of the Ld. Counsel for the parties and perused the records. After hearing the parties and going through the records. I have reached on this conclusion that the respondent is a permanent resident of village Dhurala. And in fact, the appellant is staying out side village Dhurala at Kesari railway station. The Railway Station, Kesri is situated at a distance of 2 K.M. from the village Dhurala. The appellant has himself admitted before me that he is running a school in the Railway Station, Kesri upto class X. And infact, the respondent is a retired employee from Haryana State Roadways Department and is living in the village only, due to which he will be always available for the villagers. As per Rules, a preference has to be given to a candidate in the appointment of Lambardar, who is always available for the villagers. In addition to this, there is no allegation of any kind against the respondent and is a candidate of clear record. In my opinion, the Collector passed a correct order by appointing the respondent on the post of Lambardar. In the circumstances, there is no illegality of any kind in the impugned order passed by the Lower Court. Therefore, the appeal of the appellant is dismissed.” 11. On the revision petition having been filed by respondent No.2, the Financial Commissioner upset the choice of the Collector which was upheld by the Commissioner, while passing the impugned order dated 8.8.2011 without recording any finding that either of the impugned orders passed by the District Collector or Commissioner, were suffering from any patent illegality or perversity. The relevant part of the impugned order dated 8.8.2011 passed by the Financial Commissioner reads as under:- “After hearing the arguments of both the parties and going through the record of the case. The relevant part of the impugned order dated 8.8.2011 passed by the Financial Commissioner reads as under:- “After hearing the arguments of both the parties and going through the record of the case. I find that the petitioner is more educated than the respondent who is only 12th pass and the petitioner is B.A. B.Ed. He is 41 years of age and the respondent is 61 years old. The contention of the respondent that the petitioner is running a school near Kesri Railway Station and remains outside of the village has not force and the Courts below have also wrongly observed that the petitioner is not residing in the village. Whereas petitioner has remained as Panch of the Village Dhurala, which proves that the petitioner is the resident of the same Village to which the post of lambardari pertains and he is readily available to the villagers and there is not complaint about his non-availability. The Courts below have not considered the merits of the candidates objectively and have wrongly given undue weightage to the respondent. By all standards the petitioner is more meritorious candidate than the respondent as he is more educated, much younger in age and has been a Panch of the Village to which the lambardar is to be appointed. Accordingly I accepted the revision petitioner and the set aside impugned orders dated 20.02.2008 passed by Commissioner Ambala Division, Ambala and order dated 29.08.2007 passed by Collector, Ambala. Announced. “ 12. A bare combined reading of the above-said orders would show that the Financial Commissioner has committed serious error of law while passing the impugned order thereby setting aside the factually correct and legally justified orders passed by the District Collector, which was rightly upheld by the Commissioner. The Financial Commissioner was under legal obligation to record a positive finding that the orders passed by the District Collector and the Commissioner were suffering from patent illegality, perversity or any jurisdictional error. However, he failed to record any such finding before passing the impugned order. The order passed by the District Collector was neither based on any misrepresentation of facts nor it was suffering from any patent illegality, perversity or jurisdictional error. However, he failed to record any such finding before passing the impugned order. The order passed by the District Collector was neither based on any misrepresentation of facts nor it was suffering from any patent illegality, perversity or jurisdictional error. Having said that, this Court feels no hesitation to conclude that the Financial Commissioner proceeded on an erroneous approach while passing the impugned order, which cannot be sustained, as the same is contrary to the law laid down by the Hon’ble Supreme Court as well as this Court. 13. The view taken by this Court also finds support from the judgments of the Hon’ble Supreme Court in Mahavir Singh v. Khiali Ram and others, [2009(1) Law Herald (SC) 545] : 2009(3) SCC 439 and Ishwar Singh v. Satbir Singh and others, 2009(3) R.C.R.(Civil) 955 besides the judgments of this Court in [2011(2) Law Herald (SC) 1249 : 2011(1) Land.L.R. 778 (SC) : 2011(2) Law Herald (P&H) 1233 (SC)] : CWP No. 10700 of 2011 (Subhash Chand v. State of Haryana and others), decided on 22.2.2013 CWP No. 17185 of 2011 (Parkash Chand v. State of Haryana and others), decided on 30.1.2013 and [2012(4) Law Herald (P&H) 3778] : CWP No. 1458 of 2013 (Malkiat Singh v. The Divisional Commissioner, Patiala and others) decided on 24.1.2013. 14. It is also equally pertinent to note that when the impugned order dated 8.8.2011 (Annexure P-3) was passed by the Financial Commissioner, respondent No. 2 was a defaulter of the Bihta Primary Agriculture Co-op Society Limited, Bihta (Ambala), as per the certificate dated 18.11.2011 (Annexure P-4), which has not been denied by the learned counsel for respondent No. 2. In this view of the matter, it is unhesitatingly held that respondent No. 2 was not even within the zone of consideration, being a defaulter, which is a disqualification as per the relevant provisions of law. Thus, the impugned order passed by the Financial Commissioner is not sustainable in law for this reason as well. 15. No other argument was raised. 16. Considering the peculiar facts and circumstances of the case noted above, coupled with the reason aforementioned, this Court is of the considered view that the impugned order passed by the Financial Commissioner was suffering from patent illegality and perversity. Thus, the instant writ petition deserves to be accepted. 17. 15. No other argument was raised. 16. Considering the peculiar facts and circumstances of the case noted above, coupled with the reason aforementioned, this Court is of the considered view that the impugned order passed by the Financial Commissioner was suffering from patent illegality and perversity. Thus, the instant writ petition deserves to be accepted. 17. Consequently, the impugned order dated 8.8.2011 passed by the Financial Commissioner (Annexure P-3) is ordered to be set aside. Order (Annexure P-1) and also the order dated 20.2.2008 passed by the Commissioner, Ambala Division (Annexure P-2), are restored. 18. Resultantly, the present writ petition stands allowed, however, with no order as to costs. ------------------ Raj Kumar v. The Financial Commissioner, Revenue, Haryana