Anoop Singh vs The Financial Commissioner (Appeals-1) and Another

Paramjeet Singh, J.—The instant writ petition has been filed under Articles 226/227 of the Constitution of India for quashing of order dated 01.04.2010 (Annexure P-17) passed by Financial Commissioner, Punjab, whereby the appointment of petitioner as Lambardar of Village Nonari Khokhar, Tehsil Jalalabad, District Ferozepur by the Collector vide order dated 2.12.2008 has been set aside. Brief facts of the case are that due to death of Pal Singh, previous Lambardar of village Nonari Khokhar, Tehsil Jalalabad, District Ferozepur, a post of Lambardar fell vacant. To fill up the post of Lambardar, proclamation was made in the village after obtaining necessary sanction from the competent authority and applications were invited by the Tehsildar. In pursuance of the proclamation five applicants namely Anoop Singh, Amolak Raj, Phoola Ram, Lal Singh and Kuldeep Singh submitted their applications. However, Phoola Ram, Amolak Raj and Lal Singh withdrew their candidature. In this way two candidates namely Anoop Singh-petitioner and Kuldip Singh-respondent No. 2 were left in fray. The Assistant Collector IInd Grade after completing the necessary formalities of verification of character and antecedents of the candidates recommended the name of Anoop Singh and forwarded the case to Tehsildar, Jalalabad. The Tehsildar vide order dated 11.06.2004 cancelled the candidature of both the candidates and directed the Naib Tehsildar to make fresh proclamation in the village and invite applications afresh. Anoop Singh-petitioner as well as Kuldip Singh challenged the said order before the Collector. The Collector vide order dated 11.10.2004 set aside the order of the Tehsildar and directed him to submit his report after hearing both the candidates. Tehsildar after considering the claims of both the candidates, recommended the name of Kuldip Singh and referred the case to the SDM, who after enquiry forwarded the case to the District Collector with the recommendation that Kuldip Singh respondent No. 2 is not permanent resident of the village. The District Collector after appreciating the comparative merit of both the candidates appointed Anoop Singh as Lambardar of the village in place of deceased Lambardar vide order dated 02.12.2008 (Annexure P-14). Kuldip Singh respondent No. 2 preferred an appeal before the Commissioner. The Commissioner vide order dated 23.4.2009 (Annexure P-15) dismissed the appeal and affirmed the order of the District Collector. Against that order, respondent No. 2 filed a revision before the Financial Commissioner who vide impugned order dated 01.04.2010 (Annexure P-17) appointed Kuldip Singh- respondent No. 2 as Lambardar of the village by setting aside the order of the District Collector and Commissioner. Hence, the instant writ petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner argued that main issue is with regard to residence of respondent No. 2-Kuldip Singh. Learned counsel for the petitioner has referred to various reports.

This contention of learned counsel for the petitioner has been opposed by the counsel for respondent No. 2 on the ground that while issuing notice of motion, the learned Single Judge of this Court on 04.05.2010 has passed the order whereby the controversy regarding residence has been decided and notice of motion has been issued only on the ground that Financial Commissioner has no jurisdiction to appraise the merits of the candidates and direct appointment of respondent No. 2. Relevant part of the order reads as under:

The finding that both the petitioner and respondent No. 2 are residents of the village, is based upon a fresh report, requisitioned by the Financial Commissioner. I find no reason to interfere with the impugned order insofar as it concerns the finding that respondent No. 2 is a resident of the village. However, the Financial Commissioner had no jurisdiction to appraise the merits of the candidates and direct appointment of respondent No. 2.

In view of the notice of motion order of this Court the petitioner cannot be permitted to argue with regard to issue of residence of respondent No. 2.

Learned counsel for the petitioner has submitted that petitioner is more meritorious and had been appointed by the Collector, appointment of whom has been upheld by the Commissioner. There is no perversity in the orders of the Collector as well as Commissioner. The Financial Commissioner has wrongly set aside the order and issued direction to the Collector to appoint respondent No. 2 Kuldip Singh as Lambardar of the Village. This contention has been assailed by learned counsel for respondent No. 2 by stating that the Collector and the Commissioner have appointed the petitioner only by taking into consideration the ground that respondent No. 2 is not resident of the village.

This ground has been settled by this Court while issuing notice of motion. The matter is required to be reexamined by the Collector in the light of the evidence already on record.

I have considered the rival contentions of the parties and am of the considered view that Collector has appointed the petitioner by observing that Kuldip Singh-respondent No. 2 is not resident of village Nonari Khokhar rather he is residing in village Gurharsahai. On that ground he was not found suitable by the District Collector to be appointed as Lambardar of the Village. Other merits of respondent No. 2 were not discussed by the Collector and that order was upheld by the Commissioner. The Financial Commissioner has set aside the order of the District Collector by observing that in view of the reports Kuldip Singh is resident of the village and he is more meritorious candidate as compared to petitioner. The comparative merits have not been considered by the Collector while appointing a person to the post of Lambardar, that amounts to perversity in the order. Since the comparative merits have not been considered by the appointing authority i.e. the Collector, the Financial Commissioner should have remanded the case to the Collector instead of appreciating the comparative merits himself. In this view of the matter, I deem it appropriate in the light of facts and circumstances of the present case to set aside the order of the Collector, the Commissioner and the Financial Commissioner and direct the Collector to decide the case of appointment of Lambardar after appreciating the comparative merits of the candidates without considering the issue of residence of respondent No. 2 Kuldip Singh. Since this issue has been concluded, respondent No. 2-Kuldip Singh will be deemed to be resident of the same village. Ordered accordingly. In view of above, the instant writ petition is disposed of and the case is remanded to the District Collector with a direction to decide the case on merits positively by 30.06.2012 by passing a speaking order.

Parties through their counsel are directed to appear before the District Collector, Ferozepur on 04.04.2012.

No order as to costs.