Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7252 OF 2008
[Arising out of SLP (Civil) No. 664 of 2007]
Mahavir Singh …Appellant
Versus
Khiali Ram & Ors. …
Respondents
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Appointment of a Lambardar, who is a Village Headman and is inter
alia engaged in the job of collection of revenue on commission basis, is
governed by the provisions of the Punjab Land Revenue Act, 1887; Section
28 whereof reads as under:
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“28. Rules respecting Kanungos and village
officers – (1) The State Government may make
rules to regulate the appointments, duties,
emoluments, punishment, suspension and removal
of kanungos and village officers.”
3. Pursuant to or in furtherance of the said rule making power, the State
of Punjab framed the Punjab Land Revenue Rules (for short “the Rules”).
Criterion for appointment in the post of Lambardar is laid down in Rule 15
and that of his discharge is laid down in Rule 16 thereof. Rule 15
enumerates the factors which are required to be taken into consideration for
the purpose of appointment in the said post being:
“(a) his hereditary claims;
(b) the property in the estate possessed by the
candidate to secure the recovery of land-revenue;
(c) services rendered to the State by himself or
by his family;
(d) his personal influence, character, ability and
freedom from indebtedness;”
4. The District Collector of Hisar undertook the process of appointment
of Lambardar for the Village Thurana in his District in terms of the said
Rules.
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5. Indisputably, six persons had applied for the said post. However,
Appellant and Respondent No. 1 as also one Ram Kumar were found fit to
be considered for appointment to the said post. Upon consideration of the
respective merit of the said candidates and in particular that of the appellant
and the respondent No. 1 herein, appellant was appointed being a more
meritorious candidate than others, stating:
“…He is of 36 years of age having good
personality and he has work experience of
Namberdari. For the purpose of security of the
Govt. money, he has 8 kanals 18 marlas
agricultural land and plot which is sufficient for
the purpose of security. He has good credibility in
the village. The respectable of the village also
want to appoint him as Namberdar. He actively
participated in the collective work of the village
and help the Govt. Officials at the time of visit.
The Naib Tehsildar and Tehsildar, Hansi have also
recommended the name of Sh. Mahavir Singh for
the appointment on the post of Namberdar…”
6. For arriving at the aforementioned findings, the factors relevant
therefor, viz., the educational qualification, age, experience in work of
Lambardari, relation in village and character, land and property, illegal
possession and dues, etc. had been taken into consideration.
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7. Respondent No. 1 filed a writ petition thereagainst before the Punjab
and Haryana High Court, Chandigarh which was marked as Civil Writ
Petition No. 5582 of 2006. By reason of the impugned judgment and order
dated 9.11.2006, a Division Bench of the said Court inter alia opining that
the respondent No. 1 herein was a more meritorious candidate, reversed the
said decision of the District Collector holding that Respondent No. 1 was
also a graduate having work experience of 15 years in the Armed Forces and
character certificate having been issued in his favour by the Head Master of
Government Girls Primary School and the Sarpanch of Village Thurana and
moreover having served in the Armed Forces that he was a dedicated and
disciplined person and enjoys a good reputation.
8. Before the High Court a contention was raised by the appellant that
the respondent No. 1 was guilty of encroachment of land wherefor he was
being proceeded against under Section 7 of the Punjab Village Common
Lands (Regulation) Act, 1961 in respect whereof, the following comments
were made:
“…It is suffice to say that these proceedings
appear to be motivated, having been filed after
initiation of procedure for appointment to the post
of Lambardar...”
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The appointment of the appellant, on the said findings, was directed
to be set aside by the High Court, stating:
“Respondent No.4 does not have better claim on
account of inheritance as the office of Lambardar
is not a hereditary office. It appears that the
competent authority has totally ignored the
comparative merits of the petitioner as well as
respondent No.4. As per the qualification the
petitioner has certainly an edge over respondent
No.4. No doubt, the choice of the competent
authority in the appointment of Lambardar should
not ordinarily be interfered with, but from the facts
of the present case, it is quite evident that the
authorities have totally ignored the merits of one
of the candidates, therefore, interference is
necessitated.
In view of the above, we find that the
petitioner would be the best suitable candidate for
the post of Lambardar as he has experience of
being the member of disciplined force and is more
meritorious. Accordingly, the present writ petition
is allowed and it is directed that the petitioner be
appointed as Lambardar of Village Thurana.”
9. Mr. S.B. Sanyal, learned senior counsel appearing on behalf of
appellant, in support of this appeal, would submit:
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(i) As the father of the appellant was a Lambardar and he had been
helping him in carrying out his functions in that capacity, he had
experience.
(ii) Appellant being younger in age than respondent No. 1, he was a
better candidate.
(iii) Appellant is a graduate of a University, whereas respondent No. 1
was merely a deemed graduate for the purpose of Class ‘C’ post
having served the Army for a period of fifteen years.
(iv) Respondent No. 1 having been convicted for unauthorisedly
occupying the land of Gram Panchayat Thurana under Section 7 of
the Punjab Village Common Lands (Regulation) Act, 1961, he
could not have been appointed in the post of the Lambardar.
(v) The High Court committed a serious error insofar as it, in exercise
of its writ jurisdiction under Article 226 of the Constitution of
India, entered into the merit of the respective candidates, which is
beyond its domain.
10. Mr. V.C. Mahajan, learned senior counsel appearing on behalf of
respondent No. 1, contended:
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(i) The relevant factors as laid down under the Rules having not been
complied with by the District Collector, the High Court in exercise
of its writ jurisdiction could have interfered therewith.
(ii) A finding of fact arrived at by a statutory authority, if perverse, is
liable to be interfered with by the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India.
(iii) In any event, the respondent No. 1 being a retired military
personnel, the equity also lies in his favour.
(iv) The fact that the respondent No. 1 has been convicted for
commission of an offence under Section 7 of the Punjab Village
Common Lands (Regulation) Act, 1961, having been raised for the
first time before the High Court, no cognizance thereof should be
taken by this Court.
rd
11. ‘Lambardar’ is defined in Advanced Law Lexicon, 3 edition 2005,
page 2616 as a ‘headman of a village or of a patti or section of a village’. It
is furthermore stated:
“…The cultivator who either on his own account,
or as the representative of other members of the
village, pays the government dues and is
registered in the Collector’s roll according to his
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number: as the representative of the rest he may
hold the office by descent or by election…”
12. Although the post of Lambardar is governed by the provisions of the
Punjab Land Revenue Act and the Rules framed thereunder, holder of the
said post is not a government servant. He does not hold a civil post within
the meaning of Article 309 of the Constitution of India. He although is paid
a sum of Rs. 500/- as a fixed sum but his main income is the amount of
commission which he receives out of the amount of revenue collected.
Apart from collection of revenue, he has other functions to perform
including rendition of assistance to an investigating officer when a crime is
committed in a village.
13. The District Collector is the appointing authority. He considered the
respective merits of the candidates in great details. As indicated
hereinbefore, the factor that the appellant is son of a deceased Lambardar
and he used to help him in the work of ‘Lambdari’ during his life time was
taken into consideration.
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Candidature of Ram Kumar was not taken into consideration being a
matriculate. The Collector took into consideration the fact that the
respondent No. 1 is also a graduate keeping in view the services rendered by
him in the Armed Forces. As regards age, he found the appellant to be more
suitable being 36 years whereas the respondent No. 1 was aged 62 years at
the relevant time.
As regards experience of the work of Lambardari, he found that the
appellant was more experienced in the work of Lambardari. It was,
however, noticed that the respondent No. 1 is a retired official from the
Indian Armed Force and he has served the nation for 28 years and as such
good experience in the military works.
So far as character of the respective candidates is concerned, all were
found to have been possessing good character. Similar opinion was
expressed in respect of land and property.
The Collector drew his conclusion, as noticed hereinbefore, upon
taking into consideration the aforementioned factors which were all relevant
for the purpose of recruitment to the post of ‘Lambardar’. The High Court
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in its impugned judgment did not enter into the question as to whether the
said findings of the Collector were right or wrong. It did not also take into
consideration the nature of jurisdiction the High Court exercises under
Article 226 of the Constitution of India in such matters.
14. It is now a well-settled principle of law, keeping in view the decisions
in regard to the appointment of Lambardar in the State of Punjab, that age of
a candidate is a relevant factor.
In Lt. Malik Abbas Khan v. Ghulam Haidar [1940 Lahore Law
Times 25], it was stated:
“…It is certainly not wise, save in very
exceptional circumstances, to appoint for the first
time, an inamkhor or zaildar whose age is 60 or
more.”
In Kalyan Singh v. Haidar [1928 Lahore Law Times 33], the
Financial Commissioner held that ordinarily the Collector’s choice
appointing a Zaildar or Sufedpost should not be interfered with even though
the appellate authority believes that his choice was not the best choice.
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Similar view was expressed in Lila Ram v. Asa Ram [1955 Lahore
Law Times 29] in the following terms:
“…While it is now an established principle that
there should be 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.”
In Jai Dayal v. Mohar Singh [1962 P.L.J. 64], it was held that even a
panch or sarpanch can carry out the job of both the offices together, stating:
“Another aspect from which the issue may be
considered is to see whether a Lambardar is
eligible for election as a Panch or Sarpanch.
Section 6(5) of the Gram Panchayat Act, 1952,
enumerates the conditions which should be
fulfilled before a person is entitled to stand for
election as, or continue, to be a Sarpanch or
Panch. The only relevant provisions of this section
are that a person, who is not qualified to be elected
as a member of the Legislative Assembly or is a
whole-time salaried servant of any Local
Authority or State or the Union of India, shall not
be entitled to stand for election as a Sarpanch or
Panch. It is clearly laid down in section 2 of
Punjab Act No.7 of 1952 that a person shall not be
disqualified for being a member of the Punjab
State Legislature by reason only of the fact that he
is a Lambardar. Further, while it may be true to
say that a Lambardar holds a civil post under the
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State, it cannot be said that he is a whole-time
salaried servant of the State.”
15. Keeping in view the aforementioned backdrop, the correctness of the
judgment of the High Court may have to be considered.
16. The High Court while exercising its jurisdiction under Article 226 of
the Constitution of India is basically concerned with the correctness of the
decision making process and not the merit of the decision. It has not been
found by the High Court that Collector in expressing his opinion as regards
comparative merit of appellant vis-à-vis respondent No. 1 committed an
error in his decision making process. The principles of natural justice have
been complied with. Procedure laid down in the Rules had also been
complied with. It is also not correct to say, as has been contended by Mr.
Mahajan that the Collector had not taken into consideration the services
rendered by the respondent No. 1 to the State. He did acknowledge that the
respondent No. 1 had rendered the services to the State as a member of the
Armed Forces. The Collector also took into consideration that the views of
the respectables of the village were in favour of appellant as also the fact
that he had participated in the collection work of the village and helped the
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government officials at the time of their visit. He furthermore took into
consideration the fact that the Naib Tehsildar, Hansi had also recommended
his name. Even the Circle Revenue Officer had recommended therefor.
17. It is, therefore, not a case where the finding of the Collector can be
said to be perverse. It has also not been established that the said statutory
authority while taking a decision failed to take into consideration the
relevant factors or based its decision on extraneous considerations or on
irrelevant factors not germane therefor.
In Dalpat Abasaheb Solunke v. B.S. Mahajan [(1990) 1 SCC 305],
this Court held:
“12. It will thus appear that apart from the fact
that the High Court has rolled the cases of the two
appointees in one, though their appointments are
not assailable on the same grounds, the court has
also found it necessary to sit in appeal over the
decision of the Selection Committee and to
embark upon deciding the relative merits of the
candidates. It is needless to emphasise that it is not
the function of the court to hear appeals over the
decisions of the Selection Committees and to
scrutinize the relative merits of the candidates.
Whether a candidate is fit for a particular post or
not has to be decided by the duly constituted
Selection Committee which has the expertise on
the subject. The court has no such expertise. The
decision of the Selection Committee can be
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interfered with only on limited grounds, such as
illegality or patent material irregularity in the
constitution of the Committee or its procedure
vitiating the selection, or proved mala fides
affecting the selection etc. It is not disputed that in
the present case the University had constituted the
Committee in due compliance with the relevant
statutes. The Committee consisted of experts and it
selected the candidates after going through all the
relevant material before it. In sitting in appeal over
the selection so made and in setting it aside on the
ground of the so called comparative merits of the
candidates as assessed by the court, the High
Court went wrong and exceeded its jurisdiction.”
In H.B. Gandhi, Excise and Taxation Officer-cum-Assessing
Authority, Karnal and Others v. M/s. Gopi Nath & Sons and Others [1992
Supp (1) SCC 312], this Court held:
“8. But here what was assailed was the
correctness of findings as if before an appellate
forum. Judicial review, it is trite, is not directed
against the decision but is confined to the decision
making process. Judicial review cannot extend to
the examination of the correctness or
reasonableness of a decision as a matter of fact.
The purpose of judicial review is to ensure that the
individual receives fair treatment and not to ensure
that the authority after according fair treatment
reaches, on a matter which it is authorised by law
to decide, a conclusion which is correct in the eyes
of the Court. Judicial review is not an appeal from
a decision but a review of the manner in which the
decision is made. It will be erroneous to think that
the Court sits in judgment not only on the
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correctness of the decision making process but
also on the correctness of the decision itself.”
In State of U.P. v. Committee of Management of S.K.M. Inter College
[1995 Supp (2) SCC 535], this Court held:
“10. It is settled law that the High Court
exercising the power under Article 226 of the
Constitution is not like an appellate authority to
consider the dispute. It has to see whether the
impugned order is based on records or whether the
authorities have applied their own mind to the
relevant facts. It is seen that clauses ( v ) and ( vi ) of
sub-section (3) of Section 16-D specifically
enumerate the grounds which clearly applied to
the facts in this case. Therefore, when the facts do
exist on record and the Government have applied
their mind to those facts and came to the
conclusion that from the facts so collected they
were satisfied that the Committee had contravened
clauses ( v ) and ( vi ) of sub-section (3) of Section
16-D, they have rightly exercised the power under
sub-section (4) of Section 16-D. We are of the
view that the High Court has traversed the
controversy as a court of appeal and committed
manifest error of law in interfering with the
order.”
In Durga Devi v. State of H.P. [(1997) 4 SCC 575], this Court held:
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“4. In the instant case, as would be seen from
the perusal of the impugned order, the selection of
the appellants has been quashed by the Tribunal
by itself scrutinising the comparative merits of the
candidates and fitness for the post as if the
Tribunal was sitting as an appellate authority over
the Selection Committee. The selection of the
candidates was not quashed on any other ground.
The Tribunal fell in error in arrogating to itself the
power to judge the comparative merits of the
candidates and consider the fitness and suitability
for appointment. That was the function of the
Selection Committee. The observations of this
Court in Dalpat Abasaheb Solunke case are
squarely attracted to the facts of the present case.
The order of the Tribunal under the circumstances
cannot be sustained. The appeal succeeds and is
allowed. The impugned order dated 10-12-1992 is
quashed and the matter is remitted to the Tribunal
for a fresh disposal on other points in accordance
with the law after hearing the parties.”
18. There cannot be any doubt or dispute whatsoever that a writ court
could interfere with a finding of fact when the same inter alia is found to be
perverse. However, neither any such finding has been arrived at by the
High Court nor do we find any and as such the decision of this Court relied
upon by Mr. Mahajan in Bhagat Ram v. State of Himachal Pradesh [(1983)
2 SCC 442] cannot be said to have any application whatsoever in this case.
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The High Court furthermore failed to take into consideration that
while exercising its power of judicial review, it exercises a limited
jurisdiction. The court, it is well-settled, is ordinarily concerned with the
decision making process and not the merit of the decision.
19. It also cannot be said that the equity lies in favour of the respondent
No. 1. Even otherwise, when respective merit of the candidates is taken into
consideration, equity has hardly any role to play.
20. For the reasons aforementioned, the judgment of the High Court
being wholly unsustainable is set aside. The appeal is allowed. The
Collector, Hisar is directed to restore the services of the appellant forthwith.
No costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
December 12, 2008