2013 PLP 363 (SCMR)

MIAN SAQIB NISAR, J.

The parties are in contest for the post of Lambardar in respect of Chak No.29-D, Tehsil Depalpur, District Okara. For filling up the said post, applications were invited by the concerned authorities till 28-8-2004, the parties, inter alia, were the applicants. While the matter was being scrutinized at the level of Tehsildar, the petitioner, who was a primary teacher, thus a government servant and had already applied for the said post during his service, but with the time provided, took an earlier retirement from the job on 2-3-2005. Be that as it may, when the matter for the appointment of Lambardar came under consideration before the DOR, he vide order dated 15-12-2005, while considering the qualification of respondent No.1 better than all the other candidates, including the petitioner, appointed him to the post. However, it may be pertinent to mention, that no specific comparison of the qualifications in particular vis-a-vis the petitioner was made by the DOR, while he has only mentioned in general terms as under:-- Aggrieved of the above, the petitioner preferred an appeal, which was disallowed by EDOR on 27-12-2006; and this remained the fate of the petitioner's revision before the Board of Revenue (Board) against the said orders, which was dismissed on 7-10-2008. Thereafter, the petitioner preferred a review petition before the Board, which was accepted on 27-5-2010, and while setting aside all the earlier orders and drawing comparison between the qualifications of the two contestants, the petitioner was found to be more suitable and accordingly was appointed as the Lambardar. Respondent No.1 assailed this order, before learned High Court by filing Writ Petition No.13031 of 2012, which has been accepted and the Court has held that no case within the parameters of Section 8 of the Board of Revenue Act was made out calling for the review of the earlier decision by the Board.

2. Malik Noor Muhammad Awan, learned counsel for the petitioner, by referring to the dicta reported as Government of N.-W.F.P., Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others (1990 SCMR 1524), Dr. Muhammad Hussain v. Principal, Ayub Medical College and another (PLD 2003 SC 143), Muhammad Tariq Raza v. Province of Punjab and others (1993 MLD 2332) and Miss Sobia Hadi v. The Principal, K.E. Medical College/Chairman, Admission Board of the Medical College of Punjab Lahore (PLD 1993 Lahore 673) has argued, that generally in the service matters it is the date of the appointment, which is relevant for the purposes of considering the eligibility of a candidate; rather than the date of the application. It is further argued by him that under the general law if a cause of action matures during the pendency of the lis, which (cause of action) may be lacking at the time of the initiation of an action, the matter should neither be dismissed nor relief declined to the plaintiff/petitioner, rather the case should be decided on merits. In this regard, reliance has been placed on the case reported as Muhammad Hussain v. Muhammad Siddique and 2 others (PLD 1988 SC 731). Besides, the learned counsel has also relied upon the judgment reported as Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through legal heirs (PLD 2005 SC 311) to submit that, where important and substantial material on the record, which was/is relevant for the determination of an issue in a matter, has been overlooked by the forum(s) while deciding the matter, it makes out a case of review; and in the instant case vide orders dated 15-12-2005, 27-12-2006 and 7-10-2008, passed by DOR, EDOR and BOR respectively, the qualification of the petitioner vis-a-vis respondent No.1 was never taken into consideration at all, thus on account of such a glaring vice and lapse on part of the revenue authorities (particularly the Board), it was a fit case in which review jurisdiction should have been exercised by the Board and that has been so done by it (Board) vide order dated 27-5-2010, which order, being absolutely valid and legal, could not be interfered in the constitutional jurisdiction of the learned High Court in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. As against the above, Mr. Jehangir A. Jhoja, learned counsel for respondent No.1, while drawing our attention to paragraph No.12 of the order of the DOR dated 15-12-2005 has argued, that DOR has duly taken into consideration the qualifications and eligibility of respondent No.1 and has founded him to be more suitable as compared to any other candidate, including the petitioner. This order has been upheld throughout and neither any new material was placed on the record calling for the review nor any factual or legal error apparent on the record or in the order of the Board was pointed out, warranting the review. As the order dated 27-5-2010, passed in review by the Board was in clear violation of the settled principles of law enunciated by this Court with regard to the exercise of power of review, therefore, the learned High Court in its constitutional jurisdiction was justified to set aside such order. Mr. Jehangir A. Jhoja, Advocate Supreme Court, has also argued, that it is the date of the filing of application by a candidate, which is relevant for the purposes of considering his eligibmty or ineligibility for the post of Lambardar and not any subsequent event.

3. Heard. The key propositions, which have emerged in the matter, before us are, (i) whether a government servant at all is eligible to be appointed as a Lambardar; (2) whether the petitioner, who admittedly was a government servant on the date when the applications were required, was not eligible for the said appointment or even for the consideration qua the slot; (3) whether on account of his early retirement from the government service, but before the final order could be passed by the DOR, did the petitioner qualify on account of his early retirement, therefore, he should have been considered on merits by the DOR, which was not so done; (4) whether in the facts and circumstances of the case, the Board of Revenue was justified to review its earlier order and such jurisdiction was validly exercised within the parameters of law of review.

4. As far as the first question is concerned, while relying upon the judgment reported as Muhammad Yousaf v. Member, Board of Revenue and 4 others (1996 SCMR 1581), which is squarely attracted to the instant case, it is categorically held, that any person, who is a government/civil servant is not eligible to be appointed to the post of Lambardar. For the other proposition, if the person, who, although was in the government service on the date of filing the application(s), but before the final order could be passed by the DOR, retired/resigned from the post, thus ceased to be a government servant, can be considered and be appointed to the post, no clear answer is available under the statutory law; besides, no direct precedent law has been cited before us by the learned counsel for the parties. Therefore, for resolving the noted proposition Nos.2 and 3, it may be mentioned that a relevant and important aspect in that regard shall be that, if a candidate for some (any) post does not qualify on the cut-off date set out for applying to the post, but the threshold of eligibility is crossed/attained by him before an order of appointment is passed, should he be necessarily considered on merits. Suffice it to say that no universal or general rule can be laid down in this behalf; it all depends upon the nature of office/slot, the relevant rules under which the appointment is to be made, the requirements/conditions mentioned in the invitation/publication/advertisement, requiring the persons to apply for the slot, therefore stricto sensu, the judgments cited by the learned Counsel for the petitioner shall not be of much relevance to the instant case. Thus, the present matter needs to be adjudged in the context of the nature and the object of the office/post of a Lambardar. As per the settled law, lambardari is an administrative post of its own kind, which has the colour and tinge of any honorary post and assignment, in any case it is neither in the nature of government service nor a profession or an avocation having any nexus to an office of profit such a drawing salary etc. from the government exchequer (Note: may be some monetary benefits etc. can be said to be attained by the Lambardar directly or indirectly by virtue of his office), it is also not a vested right of a person to be appointed as a Lambardar, rather the revenue authorities, for the purposes of assigning certain responsibilities to a person in the Chak, make a selection as per the criteria set out in rule 17 of the Land Revenue Rules and to find the most suitable candidate for the job who could capably discharge the duties inter alia in terms of rule 22 of the rules ibid. As the entire effort of the revenue authorities in this behalf should be to find out and locate the most suitable person for the job, because no one, as mentioned above, has a vested right to the appointment, rather a Lambardar is saddled with certain responsibilities in connection with the collection of the land revenue, Abiana and other government dues etc. therefore, for choosing the best available person, on whom trust can be reposed, the condition and requirement of qualifications in strict terms, which may otherwise be adhered to in some other kinds of recruitments in the government service etc. especially in relation to and by a given and a specific date meant for applying for such posts/appointments, should, not be strictly followed in the lambardari matter. It may be pertinent to mention here that the relevance and the importance of the date for applying to the post (lambardari) is primarily meant to ascertain as to who are the persons interested in the job, so that they should come forward and apply for the same by a given date. Thus, the revenue authorities who has to make the appointment should have the fair idea of pool (of persons) from whom they should select the most suitable. Therefore, if an applicant who does not cross a threshold of qualification or if there is an impediment in his way for the appointment on the date of application has applied in time, but while the matter is being processed and scrutinized and before the final decision is taken by the first revenue forum, such applicant either crosses the threshold or removes the hurdle in his way, such person notwithstanding the ineligibility on the date of application should be considered by the revenue authorities for the assignment. Because the object, as mentioned earlier, is to appoint a person to perform the duties of a Lambardar, who is the best and suitable man for the job. Admittedly, the petitioner, being a primary teacher, applied within the given time and perhaps was of the impression that his job shall not stand in his way, but knowing about the impediment after the filing of his application, he in fact sacrificed his teaching job and sought the early retirement. And this was all done before any final order of appointment could be passed by the DOR, thus in such a situation, the petitioner had become eligible for the consideration, but was discarded by the DOR without assigning any good reasons or comparing his qualification qua respondent No.1; as is clear from the above reproduced portion of the order (urdu) dated 15-12-2005. Therefore, we are of the view that right from the beginning the petitioner was illegally ignored for the appointment and, therefore, the orders of the DOR, EDOR and the Board, which are only a repetition thereof suffered from a conspicuous and a glaring error of law and fact, which could not sustain.

5. Before dilating upon the last question, it may be mentioned that we fail to comprehend from the reproduced part of the DOR's order, as to what does the officer means to convey; whether the petitioner is being discarded on account of his ineligibility on the date of application, or the DOR has construed petitioner's act of giving up (retirement) the teaching assignment a factor against shim. Be that as it may, the fact remains that the order is confusing and ambiguous; this order of the DOR dated 15-12-2005 has been upheld by the EDOR and also by the Member; Board in its earlier order dated 7-10-2008 in a mechanical and superficial manner; there was no independent application of mind at all inasmuch, as no comparison of the qualification of the petitioner vis-a-vis respondent No.1 was made and the legal effect of petitioner's giving up his teaching job was not taken into consideration in relation to his eligibility attained while the matter was still under process. But when in review, it was pointed out to the Board and the error of non-consideration was an apparent on the record, it was so comprehended by the Board and the Board upon consideration of the material and by rectification of the error reviewed its earlier order. The first order of the Board, where the requisite material and the legal aspect was not taken into account, accurately called for the review in terms of section 8 of the Board of Revenue Act, read with the provisions of Order XLVII, Rule 1, C.P.C. and the law enunciated by the superior courts in that regard. This order could not be validly assailed by respondent No.1 in the constitutional jurisdiction, when it was passed within the parameters of review jurisdiction and the learned High Court should not have interfered with such an order, especially when it was visible on the record, that the petitioner in all respects, such as, his land holding, education, antecedents etc., is/was more suitable for the job than respondent No.1. It may be pertinent to mention here, that the learned High Court while considering the cases about the appointment of Lambardars is not supposed to sit as a court of appeal, but only has to examine, if there is any jurisdictional error, in the orders passed by the revenue hierarchy and whether such orders are, patently against the express provisions of law or the law laid down by the superior courts and/or are perverse, arbitrary, capricious, illogical and against the record. But the order passed in review by the Board in this case does not fall within the above category and, thus, should have not been interfered by the learned High Court.

6. In the light of above, we hold that the order under challenge cannot sustain. This petition is converted into appeal and allowed the impugned order is set aside and the order of the Board of Revenue passed in review is upheld. Before parting it may be mentioned, that while the order was being dictated in the Court, learned counsel for respondent No.1, has requested that as the said respondent has cultivated the land allotted to him under the lambardari grant, which is ready for harvesting, therefore, he may be allowed to harvest the same and the possession of the land should only be taken from him after that. The request of learned counsel is genuine and, therefore, he is allowed to harvest his crop and handover the possession to the revenue authorities thereafter. MWA/M-2/SC Petition allowed.