Sultan Singh v. State of Haryana & Ors.

Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh

1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. A.K. Bura, Advocate for the appellant. Ms. Ritu Bahri, Sr. DAG, Haryana for the State Mr. Harish Bhardwaj, Advocate for respondent No.4. ... Alok Singh, J.

1. In the present appeal, order impugned is dated 17.2.2009 passed by learned Single Judge in CWP No.2505 of 2009 whereby dismissing the writ petition.

2. Brief facts of the case are that petitioner, respondent No.4, Randhir Singh and Jagpal were applicants for the post of Lambardar in LPA No. 538 of 2009 2 Village Garhi Ujale Khan in District Sonepat, which has fallen vacant due to the death of Ram Dhari, the then Lambardar; later on, Randhir Singh withdrew his candidature in favour of Sultan Singh – appellant. In this way, only three candidates i.e. petitioner, respondent No.4 and Jagdish remained in the field; the Collector having considered the statutory reports,rejected the candidature of petitioner on the ground an FIR under Sections 323/325/34 IPC was pending under investigation against him; candidature of Jagpal was also not considered on the ground that a criminal case under the NDPS Act was pending against him; therefore, respondent No.4 Jagdish was ordered to be appointed as Lambardar by the Collector vide order dated

31.10.2006.

3. Feeling aggrieved, the petitioner preferred an appeal before the Commissioner, Rohtak Division, Rohtak, which was allowed vide order dated 1.2.2008 on the ground that as per 1993(2) LJR 372, a person having charged under Section 325 IPC pending against him, cannot be disqualified for appointment as Lambardar and his candidature was wrongly ignored by the Collector. The Divisional Commissioner compared the reports and found the appellant – petitioner as suitable candidate for the post of Lambardar and ordered to appoint him as Lambardar vide order dated

1.2.2008.

4. Respondent No.4 herein challenged the order of the Divisional Commissioner before the Financial Commissioner, Haryana. The Financial Commissioner, Haryana, allowed the revision and revered the order of the Divisional Commissioner and restored the order of the Collector.

5. We have heard learned counsel for the parties and perused the record. LPA No. 538 of 2009 3

6. A perusal of the order of the Collector reveals that the Collector has not compared reports submitted by the officer in favour of the appellant – petitioner. Candidature of the appellant – petitioner was rejected by the Collector on the ground that an FIR was pending against him. In appeal, the Divisional Commissioner has held that a person having charge under Section 325 IPC cannot be disqualified for appointment as Lambardar.

7. Learned counsel for the appellant vehemently argued that as of now, no case is pending against the appellant and as per merit chart given in para 5 of the LPA, appellant is more suitable than respondent No.4. He has further stated that the Financial Commissioner has wrongly recorded that the Collector has compared the merits of petitioner and respondent No.4.

8. Learned counsel for the respondents placing reliance on the judgement of the Supreme Court in Mahavir Singh Vs. Khiali Ram and others, 2009(3) SCC 439, has argued that opinion of the Collector appointing respondent No.4 as Lamberdar is final and should not have been interfered by the Divisional Commissioner. He has further argued that the Financial Commissioner only restored the order of the Collector, which was wrongly disturbed by the Divisional Commissioner. Hence, this Court should not interfere with the opinion of the Collector as confirmed by the Financial Commissioner.

9. Learned counsel for the respondent has placed reliance on the judgement of the Apex Court in Mahavir Singh Vs. Khiali Ram and others 2009(3) 439. Hon the Apex Court in Mahavir Singh’s case (supra) has placed reliance on the matter of Lila Ram Vs. Asa Ram, [1995 Lahore Law Times 29] in which the Lahore High Court had observed as under:- “...While it is now an established principle that there should be LPA No. 538 of 2009 4 no interference with the choice made by the Collector, it does not follow that where the Collector's order is based on a misrepresentation of facts, there should still be no interference."

10. Order of the Collector shows that he has not considered comparative merit of the petitioner as well as of respondent No.4 and rejected the candidature of the appellant – petitioner on the ground that an FIR was pending against him. Order of the Divisional Commissioner shows that the Divisional Commissioner has observed that the SDO, Gohana vide his report dated 7.4.2006 found allegations against the appellant – petitioner false. The Divisional Commissioner also observed that charge under Section 325 IPC cannot disqualify a candidate. The Financial Commissioner wrongly recorded in its order that the Collector has considered comparative merits of the candidates. The Financial Commissioner has not recorded any finding about the merits of the candidates. The Financial Commissioner has not recorded any reason finding fault with the order of the Divisional Commissioner that a charge under Section 325 IPC cannot disqualify the candidates. We are, therefore, of the view that the matter requires reconsideration by the Financial Commissioner in the light of observations made hereinabove.

11. In our view, order of the Financial Commissioner cannot be sustained in the eye of law. Therefore, matter is sent back to the Financial Commissioner, Haryana to decide the question about comparative merit between the appellant – petitioner and respondent No.4.

12. Parties are directed to appear before the Financial Commissioner, Haryana on 3.5.2010. LPA No. 538 of 2009 5

13. Appeal stands disposed of accordingly. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge

17.03.2010 sk.