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2013 DIGILAW 963 (PNJ)

Shamsher Singh v. State of Punjab

2013-07-30

Rakesh Kumar Jain

body2013
JUDGMENT Mr. Rakesh Kumar Jain, J.:- The petitioner applied for the post of Lambardar (Scheduled Caste) of village Khanpur, Tehsil and District Ludhiana after the demise of Kehar Singh. Name of the petitioner was recommended by the Tehsildar and Sub Divisional Magistrate after comparing the merits of all the 4 applicants and was ultimately chosen by the Collector, Ludhiana, vide his order dated 15.09.2006 observing that “firstly he is working as agriculturist and can be available at all the times being permanently residing in the village, secondly more respectable persons of the village have recommended his name, thirdly he is more qualified than others as he is matriculate and later on passed graduation in the army, fourthly he retired from the Army after serving the nation and fifthly his name has been recommended by the revenue authorities. 2. Appointment of the petitioner was challenged by respondent no.3 in appeal before the Commissioner, which though was dismissed while observing that “the perusal of the record shows that the respondent is more meritorious than the appellant, therefore, the appeal of the appellant is hereby dismissed”, but the matter was remanded back to the Collector on 18.12.2007 with the direction that “the point of availability of the appointed candidate may be considered again”. This order was not challenged by way of further appeal by the petitioner. 3. After remand, the Collector recommended the name of respondent no.3 vide his order dated 09.06.2009 by not only taking into consideration the issue of his availability in which it was observed that the petitioner is employed as Security Guard in the B.S.N.L. and is not available in the village but also the FIR No.143 dated 27.04.2001, registered under Sections 324, 326 and 34 IPC, at Police Station Sadar, Ludhiana, and FIR No.88 dated 21.05.2007, registered under Sections 323, 324, 506 and 34 IPC at Police Station Sadar, Ludhiana, and observed that respondent no.3 is more capable than the petitioner because there is no criminal case against him. The petitioner challenged the order of the Collector by way of appeal which was dismissed on 01.09.2009 on the same ground and ultimately his revision filed before the Financial Commissioner was also dismissed on 16.03.2010 in limine. 4. The petitioner challenged the order of the Collector by way of appeal which was dismissed on 01.09.2009 on the same ground and ultimately his revision filed before the Financial Commissioner was also dismissed on 16.03.2010 in limine. 4. Counsel for the petitioner has submitted that the petitioner has been found to be more meritorious than all other candidates as his name was recommended by both the Tehsildar and SDM and after taking into consideration the various factors, in terms of Rule 19(b) of the Punjab Land Revenue Rules (as applicable to Punjab), he was chosen and appointed by the Collector vide his order dated 15.09.2006. It is further submitted that in appeal, the Divisional Commissioner passed the perfunctory order as he had found the petitioner to be meritorious and dismissed the appeal of respondent no.3, yet remanded the case back to the Collector with a direction to consider the issue of availability of the petitioner. It is submitted that after the remand, the Collector has erred in taking into account the registration of FIR which was not part of the record earlier and could not have been gone into by him as the remand order was precise on the issue of considering the availability of the petitioner in the village as he was allegedly working as a Security Guard in BSNL. In this regard, he has relied upon a judgment of this Court in the case of Mal Singh v. Mohinder Singh, [2009(1) Law Herald (P&H) 550] : 2009(5) RCR (Civil) 702. 5. It is further argued that though the petitioner was employed as a Security Guard but was working at night time when he is not required either by the villagers or the revenue authorities and is available throughout the day in the village, yet he has already left that job but after initiation of the proceedings for appointment of the Lambardar. He has also submitted that the FIRs could not have been taken into consideration by the Collector being not a part of the record and have been allegedly presented before him after the remand, but still both the FIR Nos.143 and 88 have already been settled/set aside in the Permanent Lok Adalat. Orders in this regard have also been produced on record as Annexures P-11 and P-12. Orders in this regard have also been produced on record as Annexures P-11 and P-12. He has further submitted that the proceedings in respect of DDR no.18 dated 22.05.2001 have also been dropped because no prima facie case has been made out. 6. In reply, counsel for respondent no.3 has submitted that the petitioner has rightly been rejected by the competent authority for appointment to the post of Lambardar because at the time when the file of Lambardari started he was working as Security Guard in the BSNL. He further submitted that even if the petitioner has been working during night time, he is supposed to sleep in the day time and would not be available to the villagers. He has also submitted that the petitioner has also been involved in the criminal cases. 7. I have heard learned counsel for the parties and perused the record from which I have found that the learned Financial Commissioner has not gone into all the facts and circumstances before dismissing the revision petition in limine, otherwise in view of the judgment of this Court in Mal Singh’s case (supra), the Collector could not have looked into any other evidence except to decide the question on which the matter was remanded back to him. Moreover, the petitioner has placed on record various documents to show that all the criminal cases have been settled in the Lok Adalat and even the petitioner has also left the job of Security Guard. 8. After taking into consideration the totality of the facts and circumstances, I am of the considered opinion that this case requires reconsideration at the hands of the Financial Commissioner. Hence, the present writ petition is hereby allowed, order of the Financial Commissioner is set aside and the matter is remanded back to him to look into all the aspects which have been projected by both the parties in the writ petition and take a decision in accordance with law as early as possible, preferably within a period of 4 months from the date the parties to the lis put in appearance before him. 9. The parties are directed to appear before the Financial Commissioner, Revenue, Punjab, on 12.09.2013. ---------0.B.S.0------------ ——————————