2009 PLP 2501 (YLR)

MAULVI ANWARUL HAQ, J.

On the death of Muhammad Ismail Lumberdar of Chak No.756/G.B Tehsil Kamalia, file for appointment of successor Lumberdar was initiated. Inter alia, the petitioner and respondent No.4 were also candidates for the appointment to the said Office. The Tehsildar recommended the name of the petitioner vide his Report dated 6-8-2007. It was forwarded to the District Collector by the DDOR Kamalia, who vide order dated 26-8-2008 appointed respondent No.4 as Lumberdar, who is younger son of Muhammad Ismail deceased Lumberdar. The appeal filed by the petitioner was allowed by the EDOR Toba Tek Singh on 21-1-2009 and he was appointed as a Lumberdar. The revision filed by respondent No.4 has been allowed by respondent No. 1 vide order dated 13-7-2009, who has restored the order of DOR Toba Tek Singh appointing respondent No.4 as a Lumberdar.

2. The learned counsel for the petitioner contends that the impugned order is violative of judgment in the case of Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC

484. Further contends that the respondent was a defaulter while acting as a Sarbrah of his father. Also states that two other candidates had also filed revision petitions, which are still pending but the revision petition filed by respondent No.4 has been decided.

3. I have gone through the several reports and orders passed by the revenue hierarchy. The age of the petitioner is stated to be 42 years while that of respondent No.4 is 60 years. The land ownership is almost equal. Both of them own 85 Kanals of land. Both are matriculate. Admittedly, respondent No.4 had been acting as Sarbrah of the deceased Lumberdar. So far as, the said judgment of Maqbool Ahmad Qureshi (supra) is concerned, the relevant Rule i.e. Rule 19(2) of the Punjab Land Revenue Rules, 1968 was not declared to be repugnant to the Injunctions of Islam, as a whole. I may reproduce here the relevant portion of the judgment at page 502 of the report: "The principle deducible from the Injunctions of Islam noted above is that appointment against an office, official agency, job or employment has to be made on merit of a person who is honest, trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship of descent cannot be made basis for claiming preference in the matter of appointment. Thus the provisions contained in sub-rule(2) of Rule 19 of the Rules providing for rule of primogeniture as the basis of appointment successor, though interpreted by the Supreme Court as directory rule designed to select a most fit person from amongst eligible who is free from any of the disqualifications, is violative of the afore-noted principle deducible from Injunctions of Islam. The objection with regard to provision of hereditary claim amongst other factors to be considered in matter of appointment under Rule 17 is without merits as this rule provides the relevant considerations which the Collector is to keep in view while making selection of the most suitable persons amongst the candidates. The cause to raise objection in respect of this Rule arise as the officer in the graded hierarchy of the Revenue Administration in their judgments came to accord "hereditary claims", overriding effect, as against other considerations of area, tribe, community etc. If "hereditary claim" is taken only as one of the relevant considerations, as contemplated in the rules, in favour of a candidate whose other merits are favourable comparable with other contestants, no cause of grievance will arise, rather it will meet the plea of the administration that by appointing a person from amongst the nearest eligible heir of previous Lumberdar continuity in the work and in the liaison created between the land owners and the administration is intended to be achieved. Rule 17 is, therefore, not repugnant to any Injunction of Islam."

4. The impugned order, therefore, cannot be said to be violative of said judgment. So far as, the matter of default is concerned, the EDOR noted that the respondent deposited the Government dues during the pendency of the proceedings to strengthen his Lumberdari claim. The said observation is factually incorrect. The EDOR has noted in the earlier part of his order dated 21-1-2009 that the deposit was made by respondent No.4 on 28-11-2005. In fact, the proceedings were initiated against the deceased Lumberdar, whose Sarbrah, the respondent was. This is matter of record that the Lumberdari file was initiated on 4-10-2006 after the death of Muhammad Ismail Lumberdar. The fact remains that neither the deceased Lumberdar nor the respondent as Sarbrah were ever dismissed and there was no default at the time the Lumberdari file was initiated. Nothing turns on the last contention as in the revision filed by respondent, the only parties were the petitioner and the said respondent and so is the case with the Appeal No.6-C/2008 filed by the petitioner before EDOR. The case, therefore, could have been decided in the presence of the said concerned parties.

5. The settled legal position is that the appointment of a Lumberdar is not a right. It is an administrative measures and the best judges are the Revenue Officers appointed under the Land Revenue Act, 1967. Inter se the Revenue Hierarchy, the choice of the Collector is to be respected. In the circumstances, when the petitioner has no edge over the respondent, no ground is made out for exercise of Constitutional jurisdiction. The writ petition is accord ingly dismissed in limine. M. H. /N-93/L Petition dismissed.