Balbir Singh vs Financial Commissioner and Another

Rameshwar Singh Malik, J.—The short issue that falls for consideration of this Court is whether the Commissioner was justified in law, while appointing a defaulter as Lambardar, setting aside the order passed by the Collector without recording any finding that order passed by the Collector was suffering from any patent illegality or perversity. Brief facts of the case are that on the death of late Sh. Ishar Dass Lambardar, one post of the Backward Class Lambardar fell vacant in the village of the parties. Proceedings were initiated to fill up this post. Considering and appreciating the comparative merits of the candidates, District Collector, Fatehabad, vide order dated 30.1.2007, appointed the petitioner as Lambardar. Dissatisfied, respondent No. 2 filed his appeal before the Commissioner, Hisar Division, who accepted the same appointing him as Lambardar, by setting aside the order of the Collector. The order dated 11.10.2007 (Annexure P-2) passed by the Commissioner was challenged by the petitioner before the Financial Commissioner by way of revision petition. However, the Financial Commissioner, vide his order dated 2.4.2009 (Annexure P-12), dismissed the revision petition. An application was also filed for recalling the order dated 2.4.2009, but the same was also dismissed by the Financial Commissioner, vide order dated 10.2.2011 (Annexure P-14).

Feeling aggrieved against the abovesaid impugned orders, the petitioner has approached this Court by way of instant writ petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing the impugned orders.

Notice of motion was issued and pursuant thereto, written statement was filed on behalf of respondents No. 1 and 2.

Learned counsel for the petitioner submits that the order passed by the Collector was perfect, being factually correct and legally justified. He further submits that the petitioner was rightly preferred over and above respondent No. 2, because respondent No. 2 was found to be a defaulter of Public Health Department, as he had not been paying the bills right from year 2000, thus, he was a chronic defaulter. He also submitted that the petitioner was the President of the Management Committee of the Gurudwara as per Annexure P-5. He was a member of Yuva Gramin Samaj Sudhar Samiti as per Annexure P-6. He was qualified up to B.A. Part-II as clear from Annexure P-7. He was owner of sufficient property as per Annexure P-8, whereas respondent No. 2 was a defaulter as per Annexure P-3. Thus, the Collector after comparing merits of both the candidates, rightly appointed the petitioner as Lambardar. However, the Commissioner acted illegally, while upsetting the choice of the Collector. Similarly, the Financial Commissioner also fell into serious error of law while not appreciating the true factual as well as legal aspect of the matter. To substantiate his arguments, learned counsel for the petitioner relies upon the Division Bench judgments of this Court in the cases of Sarwan Kumar Vs. The Financial Commissioner Appeals-I, Punjab and Others Kiran Lata Vs. The Financial Commissioner, Appeals-I and Others, , Jog Dhian Vs. Financial Commissioner and Others, and Phool Kumar v. State of Haryana and others, 2010 (2) R.C.R. (Civil) 819. Finally, he prays for setting aside the impugned orders by allowing the present writ petition.

Controverting the arguments raised by learned counsel for the petitioner, learned counsel for respondent No. 2 submits that the order passed by the Collector was not in accordance with law. It was rightly set aside by the Commissioner and the Financial Commissioner rightly upheld the order passed by the Commissioner. He further submits that respondent No. 2 was not a defaulter, as such. He contended that simply because some dues of Public Health Department were pending against respondent No. 2, he should not have been ousted by the District Collector from the zone of consideration. He next contended that since respondent No. 2 was a better candidate than the petitioner in all respects, the Commissioner as well as the Financial Commissioner rightly appointed him as Lambardar in place of the petitioner. Learned counsel for respondent No. 2 relies upon a Division Bench judgment of this Court in Tek Ram Vs. Financial Commissioner (Revenue) and Others, to contend that the Commissioner as well as the Financial Commissioner, both were competent to appoint respondent No. 2 as Lambardar, being appellate and revisional authorities. He prays for dismissal of the writ petition.

Learned counsel for the parties were heard at length. After careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned orders passed by the Commissioner as well as Financial Commissioner, cannot be sustained and the present writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

It is an admitted position on record that at the relevant point of time, respondent No. 2 was found to be in arrears of a Government department, which is clear from an official communication, Annexure P-3, issued from the office of Executive Engineer, Public Health Engineering Division, Fatehabad. The relevant figures depicted from Annexure P-3, are extracted as under:-

Further, respondent No. 2 had not been making the payment of the bills issued to him right from June 2000 till September, 2006, whereas proceedings to fill up this post were initiated in the month of April, 2005. Proclamation was conducted in the village on 2.5.2005 inviting applications from the interested persons. Thus, it becomes clear that respondent No. 2 was defaulter of the Public Health Department when he applied for this post. This issue was raised before the Collector, who rightly appreciated the same. Before passing the order, appointing the petitioner as Lambardar, District Collector, Fatehabad, came to a judicious conclusion, observing as under:-

Sh. Prem Kumar candidate has put forth a contention that he is defaulter of Public Health Department in ignorance, because the water was not supplied to his house for many months, due to which he did not pay the water bill to the department. His this contention is absolutely wrong. As such, he is a defaulter of Government. He has outstanding amount of Rs. 3192/- to be paid to be Public Health Department. As per rules, the person who is a defaulter of Government, cannot be appointed on the post of Numberdar as it is not in public interest. As such Sh. Prem Kumar is not eligible for the appointment on this post.

I have carefully heard the version and cross versions submitted by both the candidates and have carefully perused the record on the file. After hearing the arguments of learned counsel for both the parties and from the perusal of Nasti, while finding Sh. Balbir Singh son of Sh. Ram Chand as suitable and eligible candidates for this post, he is hereby appointed as permanent Numberdar of backward Class of Village Nagpur, Tehsil and District Fatehabad, in place of deceased Numberdar Ishar Dass son of Sh. Bala Ram. Accordingly, the Numberdari Sanad (Certificate) be issued. Case file be consigned to the record room.

This order pronounced today on 30th January, 2007, in open Court.

Respondent No. 2 admittedly deposited the above said amount after passing of the order by the Collector. This Court is of the considered view that deposit of the amount after passing the order by the District Collector will not entitle respondent No. 2 for appointment to the post of Lambardar in place of the petitioner, nor this later development will render the order passed by the Collector as illegal. The only benefit respondent No. 2 can get is for future and this deposit by him on 7.7.2007 will not operate retrospectively, although it may make him entitled for applying for the post of Lambardar. However, the Commissioner fell into serious error of law while passing the impugned order dated 11.10.2007 (Annexure P-2), whereby the order passed by the Collector was set aside appointing respondent No. 2 as Lambardar.

The operative part of the order passed by the Commissioner, reads as under:-

I have heard the arguments of learned counsel for both the parties and have also carefully perused the record, from which this fact arise that according to Naksha Numberdari, the age of appellant is 40 years and that of respondent is 50 years. Appellant is B.A. pass whereas the respondent is B.A. II.

The appellant has 24 acres 7 kanals 15 marlas of land whereas the respondent has 27 acres 2 kanals 16 marlas of agriculture land. The appellant has been shown to be worked as a Temporary Numberdar. Tehsildar, Fatehaband has also made it clear in his recommendation report dated 13.11.2006 that the work of Prem Kumar as Temporary Numberdar is satisfactory and his recovery of Abiana etc. is hundred per cent and he has interest in Government work. Hence, he has recommended Prem Kumar only to be appointed as Numberdar. Subsequently, the Sub-Divisional Officer (c), Fatehabad also while keeping in view the recommendation report of Tehsildar Fatehabad has recommended Prem Kumar to be appointed as Numberdar of backward Class. The Collector, Fatehaband while just considering the appellant as defaulter of Rs. 3192/- of Public Health Department, has appointed the applicant Balbir Singh as Numberdar. The amount of Rs. 3232/- has also been deposited by the appellant on 7.7.2007 and the appellant cannot be considered as defaulter of the balance amount of Public Health Department. All other qualifications of the appellant are more which have been described by Tehsildar and Sub-Divisional Officer (c), Fatehabad. In view of the described situations, I consider the appellant as more suitable and eligible candidate than the respondent for the post of Numberdar. Hence, while setting aside the order of District Collector, Fatehabad, dated 31.1.2007, the appeal of the appellant is hereby accepted and the appellant Sh. Prem Kumar is hereby appointed as Numberdar of backward class in village Nagpur in place of deceased Numberdar Sh. Ishar Dass. The lower court record be sent back for further action.

A bare reading of the above said order would show that the Commissioner proceeded on an erroneous approach while passing the above said order, which clearly runs counter to the law laid down by this Court.

The Division Bench of this Court in Sarwan Kumar''s case (supra) held that simply on a re-evaluation of the record, the Commissioner could not have set aside the order of the Collector, observing that another candidate was better candidate, particularly when he did not find any infirmity in the order passed by the Collector. Similar is the position in the present case. Again, in the case of Jogdhian (supra), it was held that choice of the Collector must be respected and considered final unless the same is against the rules or is perverse. In the case of Phool Kumar (supra), the Division Bench of this Court relied upon a judgment of the Hon''ble Supreme Court in Mahavir Singh Vs. Khiali Ram and Others, , holding that if two views are possible, choice of the Collector should not be interfered with by the Commissioner. That is what has been illegally done by the Commissioner in the present case.

On the other hand, the judgment relied upon by learned counsel for respondent No. 2 is not applicable, for the reason that it was rendered on different set of facts. There is no dispute about the jurisdiction of the Commissioner as well as the Financial Commissioner in appointing anybody as Lambardar. However, it is the settled proposition of law that ordinarily choice of the Lambardar is not to be interfered with unless the order is found to be based on misrepresentation of facts or suffering from patent illegality, perversity or jurisdictional error.

In the present case, the Commissioner as well as the Financial Commissioner did not record any finding that the order passed by the Collector was suffering from patent illegality or perversity. Unless such finding was recorded by the Commissioner or the Financial Commissioner, they had no jurisdiction to set aside the factually correct and legally justified order passed by the District Collector.

The choice of the Collector is not liable to be set aside simply because the Commissioner or the Financial Commissioner thought that other candidate was a better one. Having said that, this Court feels no hesitation to conclude that orders passed by the Commissioner as well as the Financial Commissioner cannot be sustained.

No other argument was raised

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that impugned orders passed by the Commissioner as well as the Financial Commissioner are patently illegal and the same cannot be upheld. Thus, the impugned orders dated 11.10.2007 (Annexure P-2) passed by the Commissioner, Hisar Division, order dated 2.4.2009 (Annexure P-12) and also the order dated 10.2.2011 (Annexure P-14) passed by the Financial Commissioner, Haryana, are hereby ordered to be set aside. Consequently, the order dated 30.1.2007 (Annexure P-1) passed by the District Collector, Fatehabad, is ordered to be restored. Resultantly, the instant writ petition stands allowed, however, with no order as to costs.