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2014 DIGILAW 445 (PNJ)

Sharif v. Financial Commissioner, Haryana

2014-03-03

FATEH DEEP SINGH, HEMANT GUPTA

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JUDGMENT HEMANT GUPT Challenge in the present Letters Patent Appeal under Clause X of the Letters Patent is against the judgment and order dated 17.09.2013 passed by the learned Single Bench of this Court, whereby the order of the Financial Commissioner dated 18.10.2011 appointing the present appellant as Lambardar of Village Sangha, Tehsil and District Bhiwani was set aside and that orders of the Collector and the Commissioner restored. The post of Lambardar of backward category of the village Sanga, District Bhiwani fell vacant after the death of Sadik. The Collector appointed Maman Chand as Lambardar on 29.06.2007. The appeal was dismissed on 23.06.2008 by the Learned Commissioner. But the Financial Commissioner set aside the order of the Collector and the Commissioner on the ground that the present appellant is son of the deceased Lambardar, therefore, he has a preferential right of appointment. Learned Single Judge considered the arguments raised and found that the appellant is a permanent employee in the Post Office of Village Sanga, working as Gramin Dak Sewak since 10.01.1990 and would not be available either to the villagers or to the revenue officers. The hereditary claim is no more available. Therefore, the appellant cannot be given any preference in that regard. It has also been found that since the Collector made his choice appointing Maman Chand as Lambardar which choice was not interfered by the Commissioner, therefore, the Financial Commissioner could not set aside the choice of the Collector merely giving preference to the unsustainable hereditary claim of the appellant. We find that the order passed by the learned Single Judge cannot be said to be suffering from any illegality or irregularity. Rules 15 and 17 of the Punjab Land Revenue Rules deal with the first appointment of Lambardar and the successor Lambardar. Both the Rules read as under: “15. We find that the order passed by the learned Single Judge cannot be said to be suffering from any illegality or irregularity. Rules 15 and 17 of the Punjab Land Revenue Rules deal with the first appointment of Lambardar and the successor Lambardar. Both the Rules read as under: “15. Matters to be considered in first appointments – In all first appointments of headman, regard shall be had among other matters to – (a) *his experience as substitute/Sarbarah Lambardar; (b) extent of property in the estate possessed by the candidate; (c) services rendered to the State by himself or by his family; (d) his personal influence, character, ability and freedom from indebtedness; (e) the strength and importance of the community from which selection of a headman is to be made; (f) services rendered by himself or by his family in the national movements to secure freedom of India. In case of an exheadman of an estate or Subdivision thereof in the territory now comprising the State of Haryana who had resigned or was dismissed on account of his participation in a national movement before partition and another headman was appointed in his place, the present incumbent of the post shall be removed irrespective of the provisions of rule 16 and the exheadman would be appointed in his place if he has not rendered himself unfit for appointment for any of the reasons given in rule 16 except imprisonment for a political offence before 15th August, 1947. In case the exheadman is no longer alive, a person of his family who would under the rules have been entitled to be headmen if the resignation or dismissal had not intervened, would be appointed as headman. But when no such person exist there would be no need to remove the existing Lambardar. **{(g) services rendered by himself to the community and development programmes; (h) he shall be not less than 21 years of age at the time of inviting the application for the appointment of Lambardar; (i) he should be literate, preferably middle pass.} xxx xxx xxx [*the words ‘his hereditary claims’ substituted vide notification dated 29.10.2010] [**(g) (h) & (i) added vide notification dated 23.07.2008] 17. Matters to be considered in appointment of successors – (i) In an estate, or subdivision thereof, owned chiefly, or altogether by Government a successor to the office of headman shall be selected with due regard to all the considerations *[] stated in Rule 15; Provided that in such an estate, or subdivision thereof notified for the purpose by the Financial Commissioner, the selection shall, as far as possible, be made in the manner prescribed by subrule (ii) if a suitable heir is forthcoming. (ii) **In other estates, while appointing successor, preference shall be given to ***[] a person having an experience of the functioning of Lambardar: (a) **** [] (b) Where a headman has been dismissed in accordance with the provisions of rule 16 the Collector may refuse to appoint any of his heirs. (1) If the circumstances of the offence, dereliction of duty, or disqualification, for which the headman was dismissed make it probable that he would be unsuitable as a headman; (2) If there is reason to believe that he has connived at the offence or dereliction of duty for which the headman has been dismissed. (3) if any disqualification for which the headman has been dismissed attaches to him; (4) If he may reasonably be supposed to be under the influence of the dismissed headman or his family to an undesirable extent. (c) The Collector may also refuse to appoint a person claiming as an heir on any ground which would necessitate or justify the dismissal of that person from the office of headman. (c) The Collector may also refuse to appoint a person claiming as an heir on any ground which would necessitate or justify the dismissal of that person from the office of headman. xxx xxx xxx” [* the words ‘other than hereditary claim’ omitted vide notification dated 23.07.2008] [** the words ‘In other estates the nearest eligible heir according to the rule of primogeniture shall be appointed unless some special custom of succession to the office be distinctly prove, but subject in every case to the following provisions’ substituted vide notification dated 23.07.2008] [***the words ‘hereditary claim and’ omitted vide notification dated 29.10.2010] [****clause (a), which read as ‘The claim of collateral relation of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant in the male line of the paternal great grandfather of the last incumbent’, omitted vide notification dated 23.07.2008] A perusal of the rules, after amendment, shows that consideration of ‘hereditary claims’ for initial appointment of Lambardar was done away with as well the consideration of ‘hereditary claims’ even in respect of appointing successor Lambardar, when clause (ii) of Rule 17 was also amended on 29.10.2010. In fact, the rule of primogeniture contained in clause (ii) of Rule 17 was done away with while substituting Clause (ii) on 29.07.2008. Such amendments are, in fact, give effect to a judgment of Division Bench of this Court in Karnail Singh Vs. The State of Haryana & others 1973 PLJ 676. In the said case, the Bench has held that Rule 15 relates to the first appointment of a headman, whereas Rule 17 relates to appointment of a successor to an office of a headman. Rule of primogeniture contained in Rule 17(ii) was found to be discriminatory on the ground of family connection. It was held to be violative of fundamental rights granted by Articles 14, 15 & 16 of the Constitution of India, consequently, Rule 17(ii) was declared to be ultra vires and unconstitutional. Thereafter, the Rules have been amended so as to exclude the reference of hereditary claim in the case of first appointment in terms of Rule 15 or even in respect of appointment of successor contained in Rule 17. Thereafter, the Rules have been amended so as to exclude the reference of hereditary claim in the case of first appointment in terms of Rule 15 or even in respect of appointment of successor contained in Rule 17. Therefore, the hereditary claim could not have been taken into consideration by the Financial Commissioner as on the day he passed the order on 18.10.2011, as Rules 15 & 17 both stood amended before the said date. It may be stated that another Division Bench of this Court in LPA No.554 of 2012 titled ‘Rattan Singh Vs. Financial Commissioner, Haryana & others’ decided on 20.03.2013, has observed as under: “A perusal of the above judgment reveals that while 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, 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 of the Constitution, seeks to prohibit. 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 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/grandsons 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.” In view of the above, we find that preference given to the appellant for the reason that his father was a Lambardar is not available in LPA No.18 of 2014 6terms of either the Rules or the precedents on the issue. Such preference violates the mandate of Article 14 of the Constitution. In view of the said fact, the Financial Commissioner has erred in law in granting benefit in appointing the present appellant. Therefore, the Learned Single Judge committed no error in law in setting aside such order of the Learned Financial Commissioner. Consequently, we do not find any merit in the present intra court appeal. The same is dismissed.