Devender Singh vs Narender Singh and Others

Satish Kumar Mittal, J.—This Letters Patent Appeal has been directed against the judgment dated 1.11.2011 passed by the learned Single Judge, whereby while allowing the writ petition (Civil Writ Petition No. 13748 of 2009) filed by Narender Singh (respondent No. 1) challenging the order dated 30.3.2009 (Annexure P-3), passed by the Financial Commissioner, Haryana, Chandigarh, the orders of the Collector, the Commissioner and the Financial Commissioner regarding appointment of Lambardar of village Shahadat Nagar, Tehsil Kosli, District Rewari, were set aside, and the matter was remitted back to the Collector, for deciding the same afresh in view of the observations made in the judgment. On account of death of the previous Lambardar of the village, the office of Lambardar of the village had fallen vacant. In response to the munadi conducted for appointment of Lambardar, six applications were received. After the character verification, only two candidates, namely Devender Singh (appellant) and Narender Singh (respondent No. 1), were left. The Collector, District Rewari, vide his order dated 30.9.2005 (Annexure P-1) appointed the appellant as Lambardar of the village, while observing as under:-

After hearing both the candidates and after perusal of case file, I have come to the conclusion that candidate Narender Singh is posted as Assistant Development Officer in the Agriculture Department, Haryana. It is correct that there is no restriction for appointment of a government servant to the post of Lambardar, but in the event of availability of other suitable candidate, preference should not be given to the government employee for the appointment to the post of Lambardar because (he government employee lives out of village whereas Lambardar should reside in the village. Sh. Devender Singh lives in the village and fulfills all the conditions for being appointed as Lambardar. Thus, finding Sh. Devender Singh s/o Sh. Ram Singh, resident of village Shahadat Nagar, more suitable for the post of Lambardar, he is appointed as Lambardar of village Shahadat Nagar in place of deceased Lambardar Kanwar Singh. A copy of the order be sent to Tehsildar, Kosli.

Feeling aggrieved against the said order, respondent No. 1 claiming himself to be more suitable for the post of Lambardar, filed appeal before the Commissioner, Gurgaon Division, Gurgaon, who vide his order dated 24.10.2007 (Annexure P-2) set aside the order of the Collector and appointed respondent No. 1 as Lambardar of the village, while observing as under:

After hearing the arguments of learned counsel for both the sides and after careful perusal of the record of lower courts, it has been found that the appellant is more educated than respondent; he possesses more agriculture land than the respondent, the appellant being son of deceased Lambardar has the experience for the work of Lambardar and he also takes much interest in social works. His family has donated half acre land for eye hospital. There is no restriction on the government servant for being appointed to the post of Lambardar. Keeping in view all the above mentioned facts and finding the order passed by District Collector defective, I hereby set aside the same and finding appellant Narender Singh eligible for being appointed as Lambardar, is appointed as Lambardar in place of deceased Ram Kanwar Lambardar of village Shahadat Nagar.

The appellant challenged the aforesaid order by filing revision petition which was allowed by the Financial Commissioner vide order dated 30.3.2009 (Annexure P-3), and after setting aside the order of the Commissioner, the order passed by the Collector, appointing the appellant as Lambardar of the village, was restored, while coming to the conclusion that respondent No. 1 was working as Assistant Development Officer in the Agriculture Department and being a Government employee, he could be transferred any where in the State of Haryana and due to his non-availablity in the village, he will not be able to perform his duties as Lambardar. On writ petition, filed by respondent No. 1, the orders of the various authorities were set aside by the learned Single Judge and the matter was remitted back to the Collector for fresh decision, while observing that a Government servant was fully eligible for appointment as Lambardar of the village and the Collector as well as the Financial Commissioner, without considering the merits and de-merits of respondent No. 1, could not have ignored him only on the ground that being a Government servant, he will not be available in the village.

After notice, we have heard learned counsel for both the parties and gone through the order passed by the learned Single Judge as well as the orders of the revenue authorities.

It has not been disputed before us that respondent No. 1 is working as Assistant Development Officer in the Agriculture Department and is posted at Kosli. Being a Government employee and in discharge of his official duties, he is supposed to remain in his office throughout the day, on each and every working day. He is also liable to be transferred from one place to another throughout the State of Haryana. A Lambardar of the village has to remain in the village throughout the day to help the villagers. He has to accompany them to various offices to identify them for the purpose of attestation of various documents, execution of sale deeds, etc. Therefore, respondent No. 1, being a Government employee posted at Kosli, away from village Shahadat Nagar, will not be available in the village to perform his duties as Lambardar of the village. The Collector, while taking into consideration this fact, and further taking into consideration the other merits and de-merits of the candidates, came to the conclusion that though there was no restriction for appointment of a Government servant to the post of Lambardar, yet in the event of availability of other suitable candidate, preference need not be given to the government employee, because the government employee lives out of village whereas Lambardar should reside in the village and respondent No. 1 being a Government employee, will not be available for the villagers throughout the day. On these considerations, the Collector appointed the appellant as Lambardar of the village. In our opinion, because of non-availability of respondent No. 1 in the village due to his employment as Assistant Development Officer in the Agriculture Department, Haryana, the Collector had rightly ignored him. A Government servant, who has to remain in his office throughout the day in connection with discharge of his official duties, cannot be available in the village throughout the day, therefore, such a person should not be given preference for appointment to the post of Lambardar, when other suitable candidate is available.

A similar question came for consideration before a Division Bench of this Court in Tek Singh v. State of Punjab and others,1 (L.P.A. No. 874 of 2011, decided on May 17, 2011). In that case, the appellant was employed in the Punjab State Electricity Board. This Court, while affirming the orders of the revenue authorities, rejected the contention of the appellant to appoint him on the post of Lambardar, observed that though a person being a Government servant is not barred from being appointed as Lambardar, but if the District Collector comes to a specific conclusion that due to his non-availability to the public, the candidate will not be a suitable candidate for appointment as Lambardar, then such an order of the Collector should not be set aside merely on the ground that the Government servant is eligible for appointment as Lambardar and he is more meritorious than the person appointed.

In our view, in the matter of appointment of Lambardar of the village, more emphasis should be given to the availability of the person to the public in the village. If an eligible person, may be less meritorious, is available, he should be given preference over and above the person who is slightly more meritorious, but being in Government employment, he has to perform his duties and functions and due to his occupation throughout the day in his office, he may not be available in the village. Thus, in our view, the Collector had rightly appointed the appellant as Lambardar of the village. The Commissioner and the learned Single Judge were not justified in setting aside the said appointment. It is well settled law, as has been held in Ujagar Singh v. State of Punjab,2 2008(3) R.C.R. (Civil) 28 and Gurdial Singh v. Iqbal Singh,3 2008(4) R.C.R. (Civil) 283, that choice of the Collector should not be interfered by the higher authorities, until and unless the order of the Collector is totally perverse or the person appointed is ineligible. In the facts and circumstances of the case, it cannot be said that order of the Collector in this case was perverse. The Collector, after taking into consideration the factum of non-availability of respondent No. 1 in the village, due to his engagement being employed as Assistant Development Officer in the Agriculture Department, Haryana, found the appellant as more suitable person for appointment to the post of Lambardar. Such order cannot be said to be illegal or perverse and was not required to be interfered by the Commissioner. Therefore, while setting aside the order of the Commissioner, the order of the Collector was rightly restored by the Financial Commissioner. In our opinion, the learned Single Judge was not justified to set aside the well reasoned orders of the Collector and the Financial Commissioner, and remand the matter to the Collector. Consequently, this appeal is allowed. The order passed by the learned Single Judge is set aside and the order, passed by the Collector, appointing the appellant as Lambardar of the village, is restored.