P L D 1999 Supreme Court 484 (PLP)

KHALIL-UR-REHMAN KHAN, J.--These appeals are directed against judgments dated 16-2-1991 and 12-2-1992 of the Federal Shariat Court dismissing the petitions filed by the appellants challenging provisions of the clauses (a), (b), (c) of rule 17, clauses (a) and (b) of sub-rule (4) of rule 19 and the provisions of Rules 25 and 26 of the Punjab Land Revenue Rules, 1968 on the ground of their repugnancy to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (SAW). The objected rules relate to the appointment of Headmen (Lambardars). The grounds urged to support the plea of repugnancy to the Injunctions of Islam are:--. (1)??????? Preferring the hereditary claims in the appointment of Lambardars whereby a son of the Lambardar is appointed in place of his father even though he is a minor, is against the principles of Islam. (2)??????? Giving a preferred right to a person owing a bigger chunk of land in comparison to other small property holders is against the tenets of Islam. (3)??????? Appointment of an elder son in preference to a younger one is not an Islamic practice. (4)??????? Appointment of a person on the basis of his rendering services to the Government is not valid ground according to Shariah. (5)??????? Appointment of Sarbarah is not in accordance with the Islamic ? Injunctions. (6)??????? Ban on appointment of Lambardars through election is un-Islamic The appellants particularly objected to the rule according preference to the 'hereditary claim' and appointment of elder son under the rule of primogeniture as repugnant to the Injunctions of Islam as according to them appointment of -a Lambardar like all other appointments to an office is required by the Injunctions of Islam, to be made purely on merits. In support of this contention, reliance was placed on the observations made by Justice Ausaf Ali Khan of the Lahore High in the case of Muhammad Younas v. The Member (Judicial-I), Board of Revenue, Punjab, Lahore and others (1994 MLD 1480). These observations read is under:- "The appointment of Lambardars, like all other appointments to an office must be made on merits. The best among the candidates should be the pick. The Holy Qur'an provides in Verse 13 of Surah AlHujaraat:- 'Surely the noblest of you with Allah is the most pious of you.' The superiority of one over another in this vast brotherhood does not depend. on nationality, wealth or rank but on the careful observance of duty or moral greatness. Thus, a person who normally discharges obligations and duties of men and Allah, stands on better footing than those who are not endowed with these qualities. Better education is the other consideration which makes a person superior to the less educated. Verses 32 and 33 of Surah Al-Baqarah recite how superiority of Adam was established over angels on account of his more knowledge.. The angels were not gifted with the knowledge which was given to man, and the gift of knowledge was a greater gift of God. Islam had first propounded the theory of survival of the fittest in the following words in Verse 17 of Surah 'Al Raad':- 'Then as for the scum, it passes away as a worthless thing, and as for that which does good to men, it tarries in the earth. Thus, does Allah set forth parables.' In short while picking up any person for the office, the determinative factors should be the strength of character, education and knowledge engagement in nation building activities, capacity to discharge of rights and obligations towards his fellow beings etc. All the persons do not possess equal qualities. Qur'an says:- 'The bad and good are not equal.' (Verse 100 of Surah AI-Maida'). And then in Surah 'Al-Raad':- 'Are the blind and seeing alike or the darkness and light equal.' The best among the available, therefore, has to be chosen for incumbent of any public office. Hereditary claim or principle of primogeniture is completely alien to the Qur'anic Injunctions and was not followed by the Holy Prophet while nominating his successor and nor the Sheikhain (Hazrat Abu Bakar and Hazrat Umar) or Hazrat Umar and Hazrat Usman had picked up their eldest sons or other sons for the office. Hazrat Imam Hassan was also not nominated by Hazrat Ali but was elected by the people. And when Amir Muavia nominated his son for the exhalted office, the move was resisted by those who had imbided the spirit of Islam." The learned Judge after recording the aforenoted reasoning further observed that Article 175(2) of the Constitution restrains the High Court from assuming jurisdiction in any other manner except the one contemplated by clauses 1(a), (b) and (c) of Article 199 of the Constitution and also that Article 203-G of the Constitution bars jurisdiction of the High Court to exercise any power or jurisdiction in respect of any matter which falls within the power or jurisdiction of the Federal Shariat Court and as such it is for the Federal Shariat Court to examine and decide the question whether principle of primogeniture as contained in the aforementioned rules is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah under Article 203-D of the Constitution. This judgment of the learned Judge of the High Court was delivered on 29th of March, 1994 much after the decision of these petitions by the Federal Shariat Court. Neither this reasoning was presented nor the Verses of the Holy Qur'an noted in this judgment were cited before the Federal Shariat Court. The learned Deputy Attorney-General appearing on behalf of the Federation, submitted:- (1)??????? That the impugned rules do not make it mandatory for the appointing aurthority that it appoints Lambardars on the basis of their hereditary claims in every case. The rules are only of directory nature which provide that the appointing authority should take different factors into consideration while appointing a Lambardar including his hereditary claims. Therefore, it cannot be said that the office of Lambardar has been made a hereditary office. (2)??????? That even if some provisions of the impugned rules are construed to the effect that they are of mandatory nature, they do not provide that the heirs of the Lambaradar should be appointed irrespective of necessary qualifications required for the office. The rule of primogeniture is always subject to a condition that the candidate fulfils all the necessary requirements and occupies all the basic qualifications for a Lambardar. Therefore, this rule does not defeat the principle of appointment on the basis of merits. (3)??????? That the appellants did not produce any specific Injunctions from the Holy Qur'an or the Sunnah of the Holy Prophet (SAW) which prohibits hereditary appointment to any office so far as they fulfil the requirements of merit. In order to appreciate the respective pleas of the parties, it appears appropriate to reproduce the rules 17, 19, 25 and 26 of the Punjab Land Revenue Rules, 1968 instead of quoting the objected to clauses of the rules only so as to have the complete picture of the rules and also to know and evaluate purposes and objectives sought to be achieved by appointing a Lambardar. These rules read as under:- "Rule

17. Matters to be considered in first appointment --In all first appointments of headmen regard shall be had among other matters to- (a)??????? the hereditary claims of the candidate; (b)??????? extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate; , (c)??????? services rendered to the Government by him or by his family; (d)??????? his personal influence, character, ability and freedom from indebtedness; (e)??????? the strength and importance of the community from which selection of a ??????????? headman is to be made; (f)???????? his ability to undergo training in Civil Defence in the case of headmen in Tehsils situated alongwith Border. Rule

19. Matters to be considered in appointment of successor.--(I) In an estate or sub-division thereof, owned chiefly or altogether by Government, a successor to the office of headman shall be selected, with due regard to all the, considerations, other than hereditary claims, stated in Rule: Provided that in such an estate or sub-division thereof, notified for the purpose by the Board of Revenue, the selection shall, as far as possible, be made in the manner prescribed by sub-rule (2) if a suitable heir is forthcoming. (2)??????? In other estates, the nearest eligible heir, according to the rules of primogeniture shall be appointed unless some special custom of succession to the office be distinctly proved but subject, in every cast, to the following provisions- (a)??????? The claim of collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in the male line, of the paternal great-grandfather of the last incumbent. (b)??????? Where a headman has been dismissed in accordance with the provisions of Rule 18, the Collector may refuse to appoint any of his heirs- (i)???????? if the circumstances of the offence, dereliction of duty or disqualification, for which the headman was dismissed, make it probable that he would be unsuitable as a headman; (ii)??????? if there is reason to believe that he has connived at the offence or dereliction of duty for which the headman has been dismissed; (iii)?????? if any disqualification for which the headman has been dismissed, attaches to him; (iv)?????? if he may reasonably be supposed to be under the influence of the ???????? dismissed headman or his family to an undesirable extent. Explanation.--If a dismissed headman's heir is considered fit to succeed, regard shall be had to the property which he would inherit. (c)??????? The Collector may also refuse to appoint a person claiming as an heir, on any ground which would necessitate or justify the dismissal of that person from the office of the headman. (d)??????? A female is not ordinarily eligible for appointment to the office of a headman, but may be appointed, when she is the sole owner of the estate for which the appointment has to be made, or for special reasons. (3)??????? Failing the appointment of an heir, a successor to the office shall be appointed in the manner, and with regard to the considerations, described in Rule 17. (4)??????? Election shall not, in any case, be resorted to as an aid in making appointments under this rule or Rule

16. Rule

25. Appointment of substitutes for non-resident headman.--(1) Where an estate is owned by a non-resident landowner, he may nominate for Collector's approval, a substitute (Sarbrah) from among the residents in the estate to discharge the duties of headman. If the owner fails to nominate a fit person, the Collector may appoint a substitute from among the resident tenants. (2)??????? Where, in an estate owned by more landowners than one, a non-resident headman is liable for more than half the land-revenue of the estate, a substitute for such headman may be appointed from among the resident landowners or tenants. In making such appointment, the Collector shall consult the wishes of the non-resident headman. Rule

26. Appointment of other substitutes and their position.--(1) Where, by reason of old age, physical infirmity, or absence from his? circle or estate, with the permission of the Collector, or by reason of his being a minor, or for any other good cause, a headman is unable to perform the duties of his office in person, a substitute may be appointed for the purpose. (2)??????? A substitute appointed under this rule or Rule 25 shall be deemed. to be the headman and shall be responsible, equally with the person in whose behalf he is appointed; provided that the Collector may, in each such case direct, from time to time, whether the duties shall be performed by the headman (Lambardar) himself or by the Sarbrah or by both. " A study of these rules shows that the estates to which appointment of a Lambardar is required to be made are of three kinds viz (i) Estate chiefly owned by Government. (ii) Estate owned by Landowners, and (iii) Estate owned by a sole landowner. The other relevant question is whether the appointment is to be made for the first time or for successor of the dismissed or deceased appointed Lambardar. ' Rule 17 provides for the matters to be considered in making first appointment and hereditary claim is one factor amongst others which is to be considered while Rule 19(1) provides that in an estate owned chiefly or altogether by the Government, a successor headman is to be selected with due regard to enumerated considerations in Rule 17, other than the hereditary claim and sub-rule (2) provides that in other estates the nearest eligible heir according to the rules of primogeniture is to be appointed to succeed the deceased appointed Lambardar subject to the provisions of clauses (a) to (e). Clause (d) then provides that where a female is sole owner of the estate, she may be appointed for this reason or for any other special reasons though ordinarily a female is not eligible for appointment. So, a minor may come to be appointed in estates largely owned by him, and in such an estate an absentee may also be appointed and in these three situations a Sarbrah may be appointed under Rules 25 and 26 of the Rules. The other relevant information gathered from the Board of Revenue. Punjab is that there are almost forty thousand Lambardars appointed in entire Punjab, that many estates in Bahawalpur Division are without Lambardars and the office is lying vacant for lack of keen interest of landowners. while very hot contest takes place in cases of first appointment or appointment of a successor in estates in which the appointed Lambardar is to receive land of Lambardari Grant. We now proceed to examine the respective pleas of the parties. So far as the first contention of the learned Deputy Attorney-General as to mandatory or directory nature of Rule 19(2) of the Rules is concerned. Reference may appropriately be made to the Supreme Court case of Ghulam Hussain v. Ghulam Muhammad and another (1976 SCMR 75), Mr. Justice Muhammad Gul after quoting Rule 19(2) (a) and (b) observed:- "The argument of the learned counsel was that the petitioner being nearest consanguine compared to the respondent was 'nearest eligible heir', and as such had a right to be appointed Lambardar in competition with the respondent. The argument in our opinion is misconceived. On its proper construction far from conferring any right muchless a legal right, the rule at best is directory which provides a guideline for the choice of the successor Lambardar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligibles under Rules. It would be wrong to impart greater efficacy to the above rule. Moreover, fitness cannot be judged by any objective standard: it is primarily a subjective process, in which the opinion of the appointing authority is the crucial factor. Even on general principles, the appointment rests in the discretion of the graded hierarchy of Revenue Officers created by the West Pakistan Land Revenue Act, who because of their experience and training are better qualified to make the choice than the Courts of general jurisdiction. In such cases, the matter is not to be approached as if it were a dispute relating to property or franchise. Therefore, the High Court rightly refused to interfere." Despite the aforenoted enunciation of law, the highest forum in the hierarchy (if Revenue Officers, the Member, Board of Revenue in many cases, See PLD 1958 (W.P.) Rev. 50, PLD 1960 (W.P.) Rev. 54, PLD 1960 (W.P.) Rev. 56, PLD 1957 (W.P.) Rev. 31, PLD 1961 (W.P.) Rev. 69, PLD 1959 (W.P.) Rev. 52, PLD 1958 (W.P.) Rev. 140 and PLD 1950 Punjab Rev. 1005, have held that hereditary claim is not to be likely ignored unless there are strong reasons justifying the passing of the candidate i.e. he is financially too weak or is a convict in a criminal case and that a candidate having hereditary claim and also owner of sufficient land to meet the Government demand should be preferred. It was also observed that even a minor is to be appointed Lambardar on the basis of his hereditary claim which will overweigh against consideration of large area held by his opponent. In another case, Fateh Muhammad v. Hurmat Bibi PLD 1964 (W. P.) Rev. 111, it was held that "mere fact that no claimant is available within the degree of relationship mentioned in rule 17(ii) of the Punjab Land Revenue Rules, [now rule 19(2)1 does not mean that the Lambardari has become non-hereditary in character but in making the appointment in such cases the Collector will take into consideration the rule of primogeniture as merely one of the factors alongwith other factors which are required to be considered". It will, therefore, be seen that provisions of the Rules as interpreted by the Board of Revenue, the Lahore High Court and the Supreme Court clearly indicate that the nearest eligible heir of the deceased Lambardar according to rule of primogeniture has to be appointed against the vacant post but this rule is to be read in conjunction with clauses (c) and (d) of sub-rule (2) of rule 19 and that notwithstanding the established claim of a person as heir, the Collector may yet refuse to appoint him as Lambardar on any ground which necessitates his dismissal from the office of Lambardar. In order to appreciate the nature of office of a Lambardar, reference .may be made to the following paras. of Sir James McC. Douie's "Land Administration Manual":- "

204. The unit of revenue administration in the former Punjab is the estate or Mahal, which is usually identical with the village or Mauza. Of these estates, large and small, a Tehsil, as a rule, contains from two to four hundred. Each of them is separately assessed to land revenue which it is the business of the Deputy Commissioner to collect, and has a separate record of rights and register of fiscal and agricultural statistics, which it is his duty to maintain. All its proprietors are by law jointly responsible for the payment of its land revenue, and in their dealings with Government they are represented by one or more headmen or Lambardars. These headmen are paid by the communities which they represent, by a surcharge of five per cent. on the revenue. They form a valuable unofficial ... ... ... .. agency through which the Deputy Commissioner and the Tahsildars convey the wishes of Government to the ... ... .... people and secure the carrying out of their own ... ... ... orders."

305. In the last two chapters the strong body of Government servants, of which the Deputy Commissioner is the head, has been described. It is a powerful piece of administrative machinery, but, as links between the higher officers and the communities for whose welfare they are responsible, its inferior members have the defects which belong to purely official agency. They have, therefore, been supplemented by representatives of the landowners in the shape of village headmen, inamdars and Zaildars.

306. It is obviously convenient for the State to deal with bodies like village communities through headmen. The internal affairs of such communities used to be, and in some places still in a measure are, managed by informal councils or Panchayts. But these have fallen into decay, and in any case their constitution was too loose for them to serve as intermediaries between the rulers and the landowners. The Sikh Government, like our own, found it useful to have such intermediaries." The Chaudhris and Mukaddims through whom dealt with the people corresponded roughly with our Zaildars and Lambardars.

307. The headmen of a village act on behalf of the landowners, tenants and other residents in their relations with the State. They are bound to attend when summoned by officers of Government, and to aid them in the execution of their public duties. Their important functions as regards the prevention and detention of crime do not fall within the scope of this work. Their chief duties are set-forth in some detail in a vernacular memorandum which is given to each headman on his appointment. Those connected with land administration may be summarized as follows: A. Duties to Government--

1. To collect and pay into the treasury the land revenue and all sums recoverable as land revenue.

2. To report to the Tahsildar- (a) the deaths of assignees and pensioners, and their absence for over a year; (b) encroachments on, or injury to, Government property

3. To aid- (a) in carrying out harvest inspections, surveys, the records of mutations and other revenue business ; (b) in providing, on payment, supplies or means of transport for troops and officers of Government. B. Duties to landowners and tenants of estate-

1. To acknowledge every payment received from them in their Parcha books.

2. To collect and mange the common village fund (Malba), and account to the shareholders for ?all receipts and expenditure.; The question of nature of office of Lambardar came for consideration before a Division Bench of the High Court of West Pakistan, Lahore in the case of Sajjad Ali Khan v. Fazal Elahi etc. (PLD 1957 (W.P.) Lahore 940) as the question raised was, "whether petitioner being a Lambardar held an office of profit in the service of Pakistan and as such disqualified to hold elected office of member of Provincial Assembly". The learned Judges after examining the above-quoted paras. of the Punjab Land Administration Manual, observed that, "these paragraphs show clearly that a Lambardar is merely an unofficial link between the landowners and the officers of the State and he represents the landowners and not the State. It was also noticed that there appears no legal bar to a Government servant being appointed a Lambardar or a Lambardar being appointed to a substantive post under the State and that as infant can be appointed on the basis of hereditary claim as Lambardar but not against a post in Government service and he is to receive five per cent. out of the amount collected by him from the land owners and does not receive any remuneration from exchequer. For such reasons it was held that office of Lambardar is not an office in the service of Pakistan. This case came up before this Courts, but the appeal was dismissed as having abated under Article 2 of Laws (Continuance in Force) Order, 1958. See Election Commissioner. Pakistan v. Sajjad Ali Khan (PLD 1960 SC 235). The learned Deputy Attorney-General laying emphasis on paras. 305 and 307 of the Land Administration Manual (quoted in para. above), contended that Lambardar has dual capacity i.e. first, acting for the Government and second when he represents the landowners, tenants and other residents. In the capacity of agent of the Government, he receives and collects Government dues, helps the administration in maintaining law and order, curbing the crime and rendering assistance to the administration and, thus, is a bridge between administration and the land holders, tenants and other residents of the estate. So, in discharge of these functions and duties assigned to him he is agent of the Government. They are bound to attend when summoned by officers so as to provide necessary aid in the execution of their official duties. Besides prevention and detention of crime, their important functions towards Government are as follows:-- . (1)??????? To collect Government Dues declared as arrears of Land Revenue by the District Collector. (2)??????? To collect the rents and other income of the common land, (3)??????? Acknowledge every payment received by him in the books of landowners and tenants. (4)??????? Report to the Tehsildar the death of any assignee of land revenue or Government Pensioner. (5)??????? Report to Tehsildar all encroachments on Roads Government waste land and Nazul property. (6)??????? Report any injury to Government building. (7)??????? To provide any information asked by the Collector (8)??????? To assist the revenue administration during crop inspection, recording of mutation, surveys, preparation of record of rights or other revenue business. (9)??????? To assist the authorities in execution of public duties and supply all required information to the officers. (10) Report to the Patwari any out-break of disease among animals. (11) Report to the Patwari the death of any right-holder in the estate. '(12) To help the Government Officers for enrolment of recruitment s for military. Learned Deputy Attorney-General referred to cases decided by the Board of Revenue with a view to describe the nature of office of Lambardar and purpose sought to be achieved by appointing Lambardars. According to him, post of Lambardar has been created in order to ensure the performance of service necessary for the efficiency of the administration of the District and the Province. These posts are not created to add to the prestige and affluence of ?influential and wealthy landowners who have no intention to fulfil the obligations and perform the duties assigned to them. A Lambardari post is not in the nature of a right in the sense that this word is used in civil law but it is an administrative appointment more or less of an agent to the Government. This was so observed in Wali Muhammad v. Ghulam Rasul (PLD 1964 (W.P.) Rev. 128). He added that it is for all these reasons that the rule 19(4) of the Rules provides that election shall not in any case be resorted as an aid in making appointment under this rule or rule

16. The other feature to be noted is that although a female. is not ordinarily eligible for appointment to the office of headman, but a female can be appointed if she is sole owner of the relevant estate or for any other special reasons. The case of Mushtaq Hussain v. Mst. Naseem Akhtar etc. (PLD 1982 SC 271) recognized such a situation of appointment of a female. See also Mst. Allah Jawai v. Bahawal PLD 1966 (W.P.) Rev. 189 and Ghulam Rasul v. Niaz Bibi PLD 1958 (W.P.I Rev.

138. But this situation is not now likely to arise as such estates owned by a sole owner, male or female are now extinct on account of enforcement of successive land reforms. Same is the position of the appointment of a minor. The rules contemplating appointment of a minor or a female, have thus been practically rendered ineffective. Even otherwise as the main purpose of appointment of headman is to receive and collect the dues on behalf of the Government, the appointment of the sole owner or the owner of the major part of the estate and thus liable to pay most of the Government dues was considered administratively convenient for realization of the Government revenue. The appointment of a female on this very ground was considered suitable. It was urged that female of requisite qualification and of age were being appointed during different periods of Muslim history for performing assigned jobs and duties. This aspect of the matter may not be further dilated upon as cases of such appointment are not likely to arise. The rules to the extent of appointment are not likely to arise. The rules to the extent of appointment of females and minor have been rendered obsolete. . The appellants during hearing raised objection particularly to the according of preferential treatment to the hereditary claim and appointment of successor on the basis of rule of primogeniture as in their view according of preference on' these two counts is repugnant to Injunctions of Islam. In this regard in addition to the reasoning given and the Verses of Holy Qur'an cited in the Lahore judgment (supra) reference may appropriately be invited to Verse 26 of Surah 8 which reads:- "Surely the best person whom you employ is the one who is strong/capable and honest (Qavi and Ameen)." The word " " (strong) implies the able bodied, a healthy body with healthy mind, so possessed with qualities of head and heart. According to Arabic usage the word is also used for a person who is able to perform a certain act. The word? (Ameen) would mean honest, trustworthy, sagacious The principle thus deducible is that the person to be employed for rendering service should possess these two basic qualities, firstly, he should be physically and mentally capable and secondly, he should be honest and trustworthy. As mentioned earlier, the word has a very wide connotation. In the context of the Verse quoted above, it is not restricted to physical strength only; rather it implies all the capabilities or qualities required for a particular employment/office, service or job keeping in view peculiar nature of the employment concerned, which may vary from job to job. ?It is also mentioned in Surah Baqarah that when Prophet Ibrahim (A.I,) was appointed by Allah Almighty as Imam, the leader, he asked Allah Almighty that office of Imamah should also be given to his progeny. Allah Almighty instead of accepting this request answered that the office cannot be given to, unjust people. The Holy Qur'an Verse 2.124 reads: "He (Allah Almighty) said, 'I am going to make you an Imam, 'He (Ibrahim (A.I.) said, 'and (make Imams) from my progeny also. He (Allah) said, My promise does not extend to the unjust." Reference may also be made to Surah 20 (Taha) Verses 29 to 36, which read:--' "And give me a Minister From my family,????????????????????? Aaron, my brother;?????? Add to my strength through him,??????????? . And make him share my task;?? That we may celebrate Thy praise???????? Without stint, And remember Thee without stint: For Thou art He that (ever) Regret us. (Allah said: "Granted is thy prayer, O Moses." Flazrat Moses (A.I.) requested Almighty Allah to appoint his brother Aaron Maroon) his Deputy. This request was granted and he was also made Prophet to lend support to the work and cause of Hazrat Moses (A.I.). The aforenoted Verses represent two different situations, one is of employment, rendering of service and the other is of Imamat, but the reply given to Prophet Ibrahim (A.I.) by Allah Almighty is noticeable as Allah said: "My promise does not extend. to the unjust". So, a progeny or a near relative who is unjust cannot claim appointment to an office or that appointment on account of mere relationship cannot be claimed. At another place the Holy Qur'an has said:--, "Surely Allah commands you to fulfil trust obligations towards those entitled to them and that when you judge between people, judge with fairness." (4.58). According to the interpretation of the recognized commentators of the Holy Qur'an, the word Amanat (trusts) used in the above Verse includes the offices of the Government. Maulana Mufti Muhammad Shaft elaborates this point in his Mariful Qur'an in the following words:- "This tells us that offices and ranks of Government, whatever they may be, are all handed over to the recipients as trust from Allah. Those who receive it are its Amin (trustees). This covers all officials and every one else in authority who wield the powers of appointments and dismissals. For them, it is not permissible that they give any office or job or responsibility to any one who is not deserving of it in terms of his relevant practical expertise or intellectual capability. Instead of doing that, it is incumbent on those in authority that they must make a serious search for the most deserving person for every job, every office within the jurisdiction of the Government." Maarifulquran English, V.2, pp.469,

470. According to the dictates of the Holy Qur'an and Sunnah, it is necessary for the appointing authority to ensure that the person intended to be appointed to an office is capable of performing his duties honestly and has all the necessary qualification /requirements for that office. Imam Ahmad has reported in his Musnad from Abu Bakarah (R.A.) that the Holy Prophet (SAW) said:- "if a person who has been charged with some responsibilities relating to the general body of Muslims gives an office to some one on the basis of (undue) favour, he will be subjected to Allah's curse and Allah will not accept from him any kind of ransom until He makes him enter the Hell." All these principles laid down by the Holy Qur'an and the Sunnah of the Holy Prophet (SAW) are sufficient to indicate that the appointments to an office of the Government are to be made on the basis of merits. Verse 2:124 of the Holy Qur'an has not approved the concept of hereditary claim as sole basis or criteria for appointment to an office, what to say of applying rule of primogeniture in making appointment of a successor to the office and the principle deducible appear to be that offices which are regarded as sacred trust are to be passed on to those who are entitled thereto i.e. to those who are qualified and trustworthy to discharge the duties of office honestly. Thus, merits of the appointee with reference to the requirements of the job assigned is to be the criteria. What should be the qualifications of the person to be appointed would naturally depend on the nature of the employment, service or the job keeping, however, in view the distinction between employment against a job or service and tilling a public office which entails discharge of obligations of State or functions of sovereign nature. The principle deducible from the Injunctions of Islam noted above is that appointment against an office, official agency, job or employment has to he made on merit of a person who is honest, trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship or descent cannot be made basis for claiming preference in the matter of appointment. Thus the provisions contained in sub-rule (1) 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 eligibles who is free from any of the disqualifications, is violative of the aforenoted 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 merit 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 arose 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 o` 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 Lambardar 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. For the reasons given above, we hold that sub-rule (2) of Rule 19 of the Punjab Land Revenue Rules. 1968 to the extent noted above is repugnant to the Injunctions of Islam as contained in the Holy Qur'an and Sunnah. Consequently, Rules 25 and 26 are also held to be repugnant to the Injunctions of Islam only to the extent they recognize the appointment of a minor or an incapable person as a Headman and shall, therefore, cease to have effect with effect from 1-9-1999 on which date this decision shall take effect. Both the appeals are partly allowed in the above terms. (Sd.) Khalil-ur-Rehman Khan. J. Concurring, I have respectfully added as short note. (Sd.) Wajihuddin Ahmed, J WAJIHUDDIN AHMED, J.--I respectfully concur. However, a few words, in elucidation, appear to be called for, which 1 would venture to add here. In the first place, heredity or hereditary claims to public offices have no room in the scheme of an Islamic dispensation. In point of fact, it has been the temptation to lean in favour of hereditary considerations, which has perverted the course of Islamic history and reduced the Ummah to its present plight. The limited recognition, therefore, to hereditary factor, pre-eminence as held being accorded to merit, is a peculiarity of the office of headman or Lambardar in contemplation of the Land Revenue Act, 1967, and the Rules framed thereunder. The reason 1S obvious namely, that such office is, in essence, not a Government office as such but a link between the State and the landowners of a specific area. The other considerations of the Lambardar only getting a percentage of the revenue from taxpayers, no salary whatever and enjoying some land holdings in the Mauza also support this conclusion, merit though always remaining the primary factor as found in the main judgment. Nothing also turns on the headman qualifying as a bigger landowner of the area himself, because that too is a convenient but secondary factor as against which as well-merit should prevail. ?Another aspect of the matter pertains to the entitlement to otherwise of females or minors to the office of a headman. It has already been opined by the learned Chairman that such situations, with the changes that have evolved on the ground. have become non-existent. Subject to this, I cannot see as to why a minor or a female, otherwise exhibiting potential on merit, can be excluded solely because of minority or sex. The main judgment, therefore, may not he clothed with an interpretation which negates the fundamental guarantees in the Constitution. . ?Subject as above, I respectfully concur with the views occurring and the conclusions drawn in the main judgment. M.B.A./M-286/S???????? Order accordingly.