PLJ 2009 Lahore 725

[Multan Bench Multan]

Present: Zafar Iqbal Chaudhry, J.

AKHTAR IQBAL --Petitioner

versus

MEMBER (JUDICIAL-III) BOARD OF REVENUE PUNJAB, LAHORE and 4 others--Respondents

W.P. No. 3237 of 2008, heard on 14.1.2009.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment of lambardar--Recommendation of revenue functionaries relating to suitability of appointment of lambardar--Challenged the order of Board of Revenue--Petitioner being grandson filed an application alongwith others for appointment of lambardar--Distt. Collector (Revenue) after scrutinizing all applications considered respondent as a suitable candidate and appointed him as lambardar--EDO (R) accepted the appeal--Board of Revenue accepted revision petition--Assailed--Petitioner was 28 years old, owner of 8 kanals land, grandson of deceased lumberdar and a kalandra u/Ss. 107 & 150, Cr.P.C.--Respondent was 42 years old, owner of 13 kanals land, no criminal case was registered against him and 38 candidates withdrew their claims for appointment as lumberdar in his favor--DDO (R) had also recommended respondent for appointment as lamberdar--Validity--Board of Revenue observing that 38 candidates had withdrawn their candidature in favour of respondent who appeared to be influential person and a suitable person for appointment of lamberdar that under law no person can claim his vested right for appointment of lamberdar--Held: Revenue functionaries are bound to select suitable candidate for appointment of lamberdar who would facilitate the revenue functionaries as well as population of locality in discharging of duties assigned to lamberdar and that choice of Distt. Officer is to be regarded unless it is found foolish and perverse in the eyes of law--Constitutional petition cannot be heard as an appeal from orders of subordinate Courts--Petitioner has failed to show any illegality or improbability jurisdictional defect in impugned order, which having been passed on valid reason is maintained--Petition was dismissed.

[Pp. 728 & 729] A & B

1992 CLC 612, rel.

Syed Muhammad Mumtaz Hussain Sh., Advocate for Petitioner.

Rana Luqman Ali Khan, Advocate for Respondent No. 3.

Date of hearing: 14.1.2009.

Judgment

Through this Constitutional petition the petitioner has challenged the order dated 20.5.2008 passed by Respondent No. 1 whereby he accepted the revision petition by setting aside the order dated 24.01.2007 passed by the Executive District Officer (Revenue) Khanewal, restoring the order dated 20.5.2006 passed by the District Collector, Multan.

2. The brief facts of the case are that after the death of Barkat Ali Lambardar of Chak No. 151/10-R Tehsil Jahanian District Khanewal the petitioner being his grandson filed an application along with others for the appointment of Lambardar. The District Collector (Revenue) after scrutinizing all the applications considered Respondent No. 3 Muhammad Akbar as a suitable candidate and appointed him as Lambardar vide order dated 29.07.2002. Aggrieved by the said order the petitioner filed appeal before the EDO(R) who accepted the same vide order dated 24.01.2007 and set aside the order of District Collector (Revenue). Respondent No. 3 challenged the said order before the learned Member, Board of Revenue who accepted the revision petition vide order dated 20.5.2008 and set aside the order of the appellate Court dated 24.01.2007.

3. Learned counsel for the petitioner has submitted that Respondent No. 1 has ignored the fact that the petitioner was grandson of Barkat Ali deceased Lambardar and under the hereditary claim he was entitled for the post of Lambardar, who even otherwise has a full support by the majority of inhabitants of the village, but this aspect has been ignored by all the Tribunals below except EDO(R) who had accepted the appeal filed by the petitioner on valid reasons; that the petitioner in the life time of his grandfather remained Sarbarh Lambardar and gained sufficient experience in this field, but this aspect was also not considered and he could not be knocked out merely on the ground that he was involved in criminal case.

4. Learned counsel for Respondent No. 3 submits that so far as right of hereditary is concerned, the petitioner cannot claim this post on the basis of this principle as has been settled for ever by the Hon'ble Supreme Court of Pakistan in Maqbool Ahmad Qureshi Vs. Islamic Republic of Pakistan (P.L.D. 1989 SC 484). It is further argued that there was a criminal case registered against the petitioner under Section 392 PPC and not only that he was also declared defaulter for an amount of Rs. 1,68,000/- on the application of Respondent No. 3 after holding inquiry by the revenue authorities, but the said amount has not been paid as yet by the petitioner and keeping in view the conduct of the petitioner he is not entitled for this post as during the period when the petitioner was Sarbarah Lambardar with mala fide intention did not receive the land revenue from Respondent No. 3 just to make an excuse against him that he was not suitable candidate for this job, who approached the concerned Tehsildar in this behalf for payment of amount through one Muhammad Rafique and this conduct of the petitioner clearly shows that he is a mischievous person; that majority in the village is in support of the Respondent No. 3 and the other 31 candidates also withdrew their candidature in favour of Respondent No. 3; that keeping in view these facts and circumstances, Respondent No. 3 is a suitable candidate and the learned Member, Board of Revenue has rightly held so while allowing revision petition filed by him. It is also argued that the Respondent No. 3 is owner of 13 kanals of land while the petitioner is owner of only 8 kanals of land.

5. I have heard the learned counsel for the parties and perused the orders passed by the revenue authorities and the other documents attached with this petition. The District Officer (Revenue)/District Collector, Multan vide order dated 20.5.2006 noted that Akhtar Iqbal petitioner was 28 years old, owner of land measuring 8 Kanels, grandson of the deceased Lumberdar and a Kalandra u/S. 107/150 Cr.P.C. dated 6/7/2003 stood registered against him while Muhammad Akbar respondent was 42 years old, owner of land measuring 13 Kanals, no criminal case was registered against him and 38 candidates withdrew their claims for appointment as Lumberdar in his favour. The Tehsildar and Deputy District Officer (Revenue) had also recommended Respondent No. 3 for appointment as Lumberdar. In such facts and circumstances, Respondent No. 3 was found most suitable candidate for appointment of Lumberder. On appeal the said order was set aside by the Executive District Officer (Rev), Khanewal vide order dated 24.1.2007 mainly on the reason that Akhtar Iqbal petitioner had remained as Sarbrah Lumberdar and his family owned more land in the village than the other candidates including Respondent No. 3. The Board of Revenue through order dated 20.5.2008 has restored the order dated 20.5.2006 passed by the District Collector, Multan while observing that 38 candidates had withdrawn their candidature in favour of Respondent No. 3, who appeared to be influential person and a suitable person for appointment of Lumberdar, that under the law no person can claim his vested right for appointment of Lumberdar against the said post; that the revenue functionaries are bound to select suitable candidate for appointment of Lumberdar who would facilitate the revenue functionaries as well as the population of the locality in discharging of duties assigned to the Lumberdar, and that choice of the District Officer is to be regarded unless it is found foolish and perverse, in the eyes of law. It was also found that a case F.I.R. No. 404 dated 2.9.2005 had also been registered against the petitioner. It has been held in 1992 C.L.C. 612 that recommendation of the Revenue Functionaries relating to suitability of appointment of Lumberdar should be given weight and kept in view. I do not agree with the learned counsel for he petitioner that his claim of hereditary was not Kept in view while passing the impugned order as in the column drawn in para No. 4 of the said order "Hereditary" was at Sr.No. 1 and It was recorded that the petitioner belonged to Lumberdar Family. The Hon'ble Supreme Court of Pakistan Court in Maqbool Ahmad Qureshi's case has held as under:--

"Appointment against an office, official agency, job or employment has to be made on merits of a person who is honest trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship or descent cannot be made basis for claiming preference in the matter of appointment."

It has been further held as under:--

"It is necessary for the appointing authority to ensure that the person intended to be appointed to an office is capable of performing his duties honestly and has all necessary qualification/requirements for that office."

I am of the view that the impugned order has been passed on valid reasons while considering each and every aspect of the case. It is now well settled principle that a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 of the Constitution cannot be heard as an appeal from the orders of the subordinate Courts. The learned counsel for the petitioner has failed to show any illegality or improbability jurisdictional defect in the impugned order, which having been passed on valid reasons is maintained.

6. For the foregoing reasons, this writ petition has no merits, which is dismissed.

(R.A.) Petition dismissed.