Manjit Singh v. Financial Commissioner (Appeal-I), Punjab, Chandigarh & Ors.

appellant challenged the same by filing an appeal before the Commissioner. In the said appeal, as is clear from the grounds of appeal, the appellant challenged the appointment on the ground that the Collector did not take into consideration the educational qualification of the appellant as he is a Graduate whereas respondent No.4 is only Matric pass and has also wrongly held that the appellant is not from the same Patti, whereas Patti of both of them is the same. However, the Commissioner vide order dated 7.11.2000 allowed the appeal and set aside the order of the Collector, while observing as under:- “ I have heard the learned counsel for the parties and have also gone through the record of the case carefully. I find that Manjit Singh, appellant, is a graduate. He owns 9 bighas 8 biswas of land which is sufficient for security. From the perusal of the case file, it is clear that respondent has illegal possession over the Shamlat land because after the death of his father Jagram Gir kept the possession of the same land. To strength this version, my attention was drawn to the Khasra Girdawari. Moreover application for the post of lambardar before the Naib Tehsildar was time barred by four months. I also find that 36 respectable persons have filed Major Nama in favour of Manjit Singh whereas only 19 persons have favoured Jagram Gir. It is clear that appellant Manjit Singh candidate is more popular in the village. In view of the above, I find that the appellant is more suitable than the respondent. The appeal is accordingly accepted, impugned order set aside and Manjit Singh son of LPA No.683 of 2012 (O&M) -3- Sukhdev Singh is appointed as lambardar of village Bahadarpur Faqiran alias Chhanna, Tehsil and District Patiala, against the vacancy caused due to thedeath of Dusehra Gir.” Against the afore-said order, respondent No.4 filed revision petition before the Financial Commissioner and the same was allowed vide order dated

1.11.2006, while observing as under:- “I have heard both the counsels carefully and have gone through the record on file minutely. In view of the fact that Jagram Gir's grandfather was the Lambardar whose vacancy is being filed, he has additional claim. He has been working as lambardar since June, 1998. No complaint has been made against him and he has been found to be honest and hard working. Some objections regarding limitation and possession of Shamlat land have been raised but these are not on record and seems to be after thought. Due to the fact that the Manjit Singh respondent faced a case under Section 307 and was acquitted by getting the benefit of doubt, I think that his candidature cannot be relied upon in important and sensitive matters of the Government.” Later on, the appellant, instead of challenging the said order by filing the writ petition, filed review application before the Financial Commissioner which was allowed vide order dated August 27, 2009 and the earlier order dated November 01, 2006 passed by him while allowing the revision was recalled, and after setting aside the orders of the Collector as well as the Commissioner, the matter was remanded back to the District Collector for making a fresh proclamation and inviting applications for appointment of Lambardar, while observing as under:- “I have heard the learned counsel for both the parties. It is admitted by the learned counsel for the parties that Dusehera LPA No.683 of 2012 (O&M) -4- Gir, who was lambardar had died on 6.7.93 and Manga Gir had submitted an application after death of Dusehera Gir. A proclamation for filling up the post was made by the Assistant Collector Grade II on 8.6.95 with last date as 29.6.95 for submitting applications. S/Sh. Davinder Singh and Manjit Singh had submitted their applications after the proclamation was made which were being considered alongwith the application of Manga Gir already submitted. On 24.10.95, the case was dismissed in default for non appearance and follow up by the parties and was consigned to the record room and the matter rested there. On 16.3.96 Manga Gir, who was earlier a candidate for the post of lambardar had died. On 27.3.96, Jagram Gir, the present petitioner submitted an application for consideration for the post of lambardar. On 18.4.96, respondent Manjit Singh filed a restoration application which was allowed by the Naib Tehsildar on 14.5.96 and application submitted by Jagram Gir was also entertained and the process for selection for lambardar was initiated denovo. It is admitted by both the counsels for the parties that as per due procedure, application for restoration against the order of 'dismissed in default' could be filed within 30 days from the date of the order. In the instant case, the application was filed more than five months after the order. Not only this, the revenue officer i.e. Naib Tehsildar, who was processing the case, was not acting as a quasi judicial court. In the case of lambardari, the legal authority is only the Collector. Even the Tehsildar and Sub Divisional Magistrate do not exercise the quasi judicial powers as they are only recommending authorities, with a view to assisting the Collector for making appointment. Accordingly, the process for appointment of lambardar could not be continued without prior permission of the Collector. Both the Collector and Commissioner did not apply their mind to these vital facts of the case. Accordingly, the appointments made by the Collector LPA No.683 of 2012 (O&M) -5- and Commissioner were not justified in the eyes of law and are required to be set aside as the due process of law has not been followed by making fresh proclamation for inviting applications. In the light of this, the orders of the Commissioners as well as the District Collector are set aside and the case is remanded back to the District Collector for making a fresh proclamation and inviting applications and started processing after following due process.” The learned Single Judge, on writ petition filed by the respondent, set aside the aforesaid order of the Financial Commissioner, while observing as under:- “The only challenge in the present writ petition is to order dated 27.08.2009 (Annexure P-8) passed by Financial Commissioner on a review application filed by Manjit Singh- respondent No.3. The order in review has been passed by the Financial Commissioner on the ground that necessary permission had not been obtained from the competent authority to continue the process for appointment of Lambardar once the case was dismissed in default. Admittedly, petitioner as well as respondent No.3 had participated from the very beginning. Respondent No.3 cannot say that he was not aware of the process once he had participated in the process for appointment of Lambardar. The ground that the application of the petitioner is time barred and ought not to have been entertained could not be raised in review once respondent No.4 did not challenge the same throughout the proceedings. The Financial Commissioner has not applied its mind and has wrongly exercised the jurisdiction in remanding the case to the District Collector for fresh process. It is important to note that none of the persons is aggrieved against the initiation of process except the person who had participated in the process of selection for the post of Lambardar from the very beginning. Now respondent No.4 LPA No.683 of 2012 (O&M) -6- cannot say that the process for filling up the post of Lambardar was wrongly initiated. Since he has participated and has filed appeal and revision which were dismissed, in review he cannot be permitted to assail the initiation of process for appointment to the post of Lambardar, which is not permissible under law. The review application cannot be treated as an appeal and has to be strictly confined to the scope and ambit of review under Order 47 Rule 1 of the Code of Civil Procedure. For exercising review powers, an error apparent on the face of record must be such an error which must strike one on a mere looking at the record. No long drawn reasoning on the point raised in the review application, is required to be given as it will amount to re-appreciation of the entire evidence.” After hearing the learned counsel for the appellant and going through the impugned order as well as the orders of the revenue authorities, we do not find any ground to interfere in the impugned order passed by the learned Single Judge. The learned counsel for the appellant vehemently argued that when initially the applications were invited for filling up the post of Lambardar, respondent No.4 did not file any application and he submitted the application later on after the death of his father, which was time barred. Therefore, the same could not have been considered by the authorities and the Collector could not have appointed him on the post of Lambardar. It is clear from the order dated August 27, 2009 passed by the Financial Commissioner that when on an application filed by appellant Manjit Singh for consideration for the post of Lambardar, the applications, which were earlier dismissed in default, were restored by Naib Tehsildar and the process for selection of Lambardar was initiated de novo, at that time LPA No.683 of 2012 (O&M) -7- respondent No.4 had also filed an application for the said post. Thereafter the claim of both the candidates was processed by the Tehsildar as well as by the S.D.M. Both the candidates duly participated in that process and ultimately the name of respondent No.4 was recommended and on the basis of that recommendation, the Collector, after considering the comparative merit of both the candidates, appointed respondent No.4 as Lambardar of the village. When the appellant filed an appeal against the said order, no such ground was taken that the application filed by respondent No.4 was time barred and was wrongly entertained and he should not have been allowed to participate in the selection process. However, the Commissioner set aside the order of the Collector on the irrelevant ground, i.e., with regard to illegal possession over the Shamlat land. The Financial Commissioner rightly interfered in the perverse and illegal order of the Commissioner and set aside the same by passing a detailed reasoned order. But, later on, the Financial Commissioner, without any justification and reason, reviewed his earlier order and set aside the orders passed by the Collector as well as the Commissioner. In our view, the learned Single Judge has rightly set aside the illegal and arbitrary order passed by the Financial Commissioner on the review application filed by the appellant. We are of the considered opinion that there was no justification for remanding the matter at all to consider the case after inviting fresh applications. Neither the appellant nor respondent No.4 had prayed for inviting fresh applications. They were fighting the case on the basis of merit. The Collector, after considering the comparative merit of both the candidates, had appointed respondent No.4 as Lambardar of the LPA No.683 of 2012 (O&M) -8- village. In our opinion, the finding of the Collector that respondent No.4 was more meritorious, is correct and based on the facts available on the record. The Commissioner, without any justification and while totally ignoring the settled law that the choice of the Collector should not be interfered with until and unless the order is perverse and the appointed person is ineligible for the appointment, had set aside the order of the Collector. The Financial Commissioner, though at one point of time, had set aside the illegal order of the Commissioner, but subsequently, had taken the `U' turn on the review application and on a different ground had recalled his earlier order totally without any justification and reason. In our opinion, the learned Single Judge has rightly set aside the order dated August 27, 2009 passed by the Financial Commissioner in review application and restored the order of the Collector appointing respondent No.4 as Lambardar of the village. Thus, we do not find any illegality in the impugned order passed by the learned Single Judge. No merit. Dismissed. (SATISH KUMAR MITTAL) JUDGE May 11, 2012 ( T. P. S. MANN ) JUDGE