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2016 DIGILAW 555 (JK)

Gh. Mohammad Shah v. State of J&K

2016-10-21

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

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JUDGMENT : N. PAUL VASANTHA KUMAR, J. 1. This appeal is filed against the order made in SWP No. 467/2016, dated 16.05.2016 wherein the learned Single Judge dismissed the writ petition filed by the appellant, claiming his right to continue to discharge his duties as Lambardar of Village Pushwari Tehsil Machil and prohibiting the respondents from removing him from the post. The case projected by the appellant before the Writ Court was that he was appointed on the post of Lambardar for village Pushwari Machil District Kupwara on 02.05.1990 and he is discharging his duties with utmost dedication. According to him his appointment and continuance is in terms of the J & K Lambardari Act, 1972 and J & K Lambardari Rules, 1980. His case is that he informed the higher ups about the illegalities being committed by certain officers in various departments under the name and style of development of the village, hence some vested interest persons made false and frivolous complaints before respondent No. 3 against the appellant in the year 2015 for which the 3rd respondent sought for report. Before waiting for a report, respondent No. 4 started harassing the appellant and thereafter appellant made a representation to respondent Nos. 2 and 3 with regard to the frivolous complaint and in spite of the same respondent Nos. 3 and 4 directed the appellant to discontinue for his duties of village Lambardar without stating any reasons or giving opportunity of hearing. The said action being contrary to the Rules and Regulations, writ petition was filed by the appellant by contending that the decision taken not to permit him to continue as village headman is arbitrary, as without conducting enquiry and with malice such action was taken. 2. The Writ Court, considering the Rule position, held that a person appointed as Lambardar/Village Headman can continue only up to the conduct of elections and directed the respondents to conduct election within two months and till election is conducted the appellant was permitted to continue. 2. The Writ Court, considering the Rule position, held that a person appointed as Lambardar/Village Headman can continue only up to the conduct of elections and directed the respondents to conduct election within two months and till election is conducted the appellant was permitted to continue. Against this order the appellant has preferred this appeal on the ground that appellant having been appointed on 02.05.1990 and having continuously serving for all these years, he has every legal right to continue and the elections can be ordered to be held only if any mal practice or illegality is found and giving directions by the Writ Court to conduct election and allow the appellant to hold the post till election is conducted, is contrary to the assurance given in the meeting with the Revenue Minister of the Government on 11.11.2009 with the Lambardar Association in which assurance was given to the effect that Lambardars shall not be unnecessarily harassed, threatened or disengaged and directions were issued to the Deputy Commissioners concerned to consider their replacement only on their demise that too by their legal heirs, which order was neither rescinded no revoked. According to the appellant a Circular was issued based on the minutes of the meeting with the Revenue Minister dated 11.11.2009. 3. We have considered the said grounds raised in the appeal as well as the minutes of the meeting dated 11.11.2009 based on which a Circular was issued on 13.11.2009. 4. Admittedly the appellant was appointed as Lambardar in terms of Rule 3 of the J & K Lambardari Rules, 1980. The term of office of Lambardar is mentioned in Rule 16 which reads thus:- "16. Term of office of Lambardar: (1) The term of office for which Lambardar shall be elected shall not ordinarily exceed five years. (2) An outgoing Lambardar shall, unless the Government otherwise direct, continue in office until the election of his successor is announced. (3) An outgoing member may, if otherwise qualified, be re-elected. (4) When as a result of any enquiry held under these rules an order declaring the election of any Lambardar void has been announced, such Lambardar shall forthwith cease to hold his office. (5) When a Lambardar is appointed otherwise than by election he shall continue till he dies or is dismissed/discharged or till the general election of Lambardars is held." 5. (5) When a Lambardar is appointed otherwise than by election he shall continue till he dies or is dismissed/discharged or till the general election of Lambardars is held." 5. On a perusal of the said Rule it is evident that an elected Lambadar can continue to hold the office not exceeding five years unless the Government orders his continuance till the elections of the successor is held. Rule 16(5) is in respect of the term of office of Lambardar appointed otherwise than by elections. The said Rule clearly states that such appointed person shall continue till he dies or is dismissed/discharged or till the general elections of Lambardars is held. Thus it is evident that appellant was appointed as Lambardar by appointment and not by election and he is entitled to continue till the general elections of Lambardars is held, unless he is discharged from service in terms of Rule 9 which empowers the Collector to dismiss a Lambardar for specific reasons. In this case the Writ Court considered the said Rule and allowed the appellant to continue till election is held and the respondent No. 3 was directed to conduct election to elect the Lambardar within a period of two months. The term of office being five years or till the elections are conducted, the appellant is not justified in contending that he is entitled to continue forever without allowing respondent No. 3 to conduct elections. The appellant having been appointed as the J & K Lambardari Rules, 1980, he is bound by the provisions of the Rules, and any decision taken contrary to the said Rule without amending the Rule will have no effect and the same will not confer any enforceable right to the appellant. The order of the Writ Court, allowing the appellant to continue till elections are conducted is in terms of Rule 16. There is no merit in the L.P. Appeal and the same is dismissed. No costs.