Present: Arshad Mahmood, J.
MEMBER BOARD OF REVENUE,
W.P. No. 3559 of 2009, decided 13.5.2009.
----Art. 199--Constitutional petition--Vacant post of permanent lambardar--Recommendation for appointment as lambardar--Rule of primogeniture not sole ground for appointment--Constitutional jurisdiction cannot substitute--Revenue Courts are not open to exception in writ jurisdiction--Allegations of being defaulter and landless--After fulfilling codal formalities respondent was appointed as lambardar--Appeals and review petitions were filed in revenue, hierarchy against appointment of lambardar failed which is now under assail in Constitutional petition--Grounds that principle of primogeniture was in force when cause of action accrued in favour of petitioner and thus he was entitled for the appointment on such score and that petitioner is more suitable than respondent to be appointed as lambardar--Consideration for such appointment, which has of course to be made on merit and blood relationship or descent cannot be made basis for claiming preference in the matter of appointment--Allegations of being defaulter remained uncontroverted before forums below--High Court in exercise of constitutional jurisdiction cannot substitute its own preferences with preferences of the competent fora unless it is shown that decisions made by competent authorities suffered from any jurisdictional defect or any illegality--Revenue Courts are not open to exception in writ jurisdiction--Petition was dismissed. [Pp. 377 & 378] A, B, C, D & E
2007 SCMR 287 ref.
Mr. Muhammad Arif Alvi, Advocate for Petitioner.
Date of hearing: 13.5.2009.
Post of Lambardar in Chak No. 163/WB Tehsil and District Vehari fell vacant upon demise of permanent Lambardar namely Manik Khan who was father of the petitioner. Tehsildar invited applications through proclamation to fill in the vacancy. Through application dated 03.08.1999, petitioner entered into arena along with 21 other candidates. On 17.12.1999 petitioner was recommended for his appointment as Lambardar whereas nothing was reported in respect of other candidates. The report was returned to the Tehsildar Vehari on 28.12.1999 for submission of a detailed report after providing opportunity of being heard to all the applicants and through fresh process Respondent No. 5 was appointed Lambardar of the Chak vide order dated 29.9.2005. Aggrieved thereof petitioner and others filed appeals before the Executive District Officer (Revenue) which were dismissed vide order dated 19.12.2006. Review petitioners filed against the order dated 19.12.2006 also met the fate of dismissal on 14.4.2009. Hence this petition.
2. Learned counsel for the petitioner submitted that impugned orders passed by the Courts below are against law and facts, therefore, cannot sustain in the eye of law that petitioner was recommended for his appointment as Lambardar on the principle of primogeniture; that after the death of his father Dhal Bash of crop of Rabi-1999, Kharif-2000, Rabi-2000 and Rabi-2005 were delivered to the petitioner which he deposited well within time in the Government Treasury. Banking upon the dictum of law enunciated in "Maqbool Ahmed Qureshi versus The Islamic Republic of Pakistan" (PLD 1999 SC 484), "Noor Muhammad Lambardar versus Member (R), Board of Revenue, Punjab, Lahore and others" (2003 SCMR 708) and "Haji Noorwar Jan versus Senior Member Board of Revenue NWFP Peshawar and 4 others" (PLD 1991 SC 531) learned counsel stressed hard that appointment of petitioner on the principle of primogeniture was not effected by the decision of Hon'ble Shariat Appellate Bench of the Supreme Court.
3. I have heard the learned counsel for the petitioner at a considerable length and gone through the record.
4. Perusal of record reveals that petitioner was recommended for appointment as Lambardar by the Tehsildar vide report dated 17.12.1999 without any report in respect of other candidates consequently the report was returned on 28.12.1999 with the directions that a detailed report be submitted. After fulfilling codal formalities Ahmad Yar/Respondent No. 5 was appointed as Lambardar. Appeals and review petitions filed in the revenue hierarchy against the appointment of Respondent No. 5 failed which is now under assail in this constitutional petition. Before this Court the contestants are petitioner and Respondent No. 5. Learned counsel for the petitioner has stressed on two main grounds (i) that principle of primogeniture was in force when cause of action accrued in favour of the petitioner and thus he was entitled for the said appointment on this score and (ii) that petitioner is more suitable than Respondent No. 5 to be appointed as Lambardar.
5. As per dictum of law laid down by the Hon'ble Supreme Court in "Noor Muhammad Lambardar versus M.B.R, etc" (2003 SCMR 708) decision of the Shariat Appellate Bench of Supreme Court of Pakistan. (PLD 1999 SC 484) was effective from 01.09.1999 whereas post of the Lambardar fell vacant on 01.06.1999. As per dictum of law laid down in 2003 SCMR 708 (supra) when cause of accrued in favour of the petitioner rule of primogeniture was in force but hereditary claim is not the sole ground for appointment as Lambardar. It is only one of the relevant considerations for such appointment, which has, of course, to be made on merit and blood relationship or descent cannot be made basis for claiming preference in the matter of appointment. While holding so, I am fortified by the dictum of law enunciated in PLD 1999 SC 484 (supra). Therefore, this argument solely cannot advance cause of the petitioner.
6. Now coming to the second contention i.e. suitability of petitioner vis a vis Respondent No. 5. At the time of filing application for the post of Lambardar petitioner was landless whereas Respondent No. 5 owned 87-Kanals and 17-Marlas. Petitioner also lags behind the Respondent No. 5 in education. Allegations of being defaulter of Zari Tarqiati Bank Ltd., and late deposit of Dhal Bash remained uncontroverted before the forums below. Even otherwise this Court in the exercise of constitutional jurisdiction cannot substitute its own preferences with the preferences of the competent fora unless it is shown that the decision made by the competent authorities suffered from any jurisdictional defect or any illegality. Reference can be made to "Muhammad Rafique versus Nazir Ahmed and others" (2007 SCMR 287).
For what has been discussed above concurrent findings of the revenue Courts are not open to exception in writ jurisdiction, therefore, there is no force in this writ petition which is dismissed in limine.
(S.S.) Petition dismissed.