' CH. IJAZ AHMED, J.--- Petitioner has sought leave to appeal against the judgment of the Lahore High Court, dated 4-6-2002 passed in Writ Petition No,2629 of 2002 wherein the learned High Court had accepted the writ petition and set aside the orders of the Member Board of Revenue, dated 29-7-1999 and 31-2-2000 and restored the orders of the Collector dated 11-3-1996 and the Commissioner dated 19-12-1996.
2. Detailed facts have already been mentioned in paras.2 to 5 of the impugned judgment, however, necessary facts out of which the present petition arises are that dispute between the parties is regarding appointment of Lambardar in Chak No,1/3-L, Tehsil Shorkot, District Jhang. On the death of Wiryam in the year 1994, father of petitioner, who was a Lambardar of the said Chak, applications for the post of Lambardar were invited by the Collector. In obedience of the direction of the Collector, petitioner, respondent No,1 and six others submitted applications. It is, pertinent to mention here that the contesting candidates remained in the field petitioner and respondent No,1 out of the aforesaid candidates. Tehsildar Shorkot had recommended the name of the petitioner for the post in question while the Assistant Commissioner, Shorkot had recommended respondent No,1 for the appointment of the post in question on the ground that petitioner was a Government servant and was serving as vaccinator and was absent from the Chak. The aforesaid report was submitted before the D.C./Collector, Jhang who vide its order, dated 11-3-1996 appointed respondent No,1 as Lambardar of the Chak on the ground that he possesses better qualifications as compared to other contestants keeping in .View that respondent No,1 is retired Government servant and after the comparison of qualifications and merits of the candidates, Assistant Commissioner had recommended respondent No,1 for the post in question and the Collector had also considered merits and demerits of the petitioners and respondent No,1 at the time of appointing respondent No,1 as Lambardar in the village in question vide its order, dated 11-3-1996 mentioned hereinabove. Petitioner being aggrieved filed appeal before the Commissioner, Faisalabad Division, Faisalabad, who dismissed the same vide its order, dated 19-12-1996. Petitioner being aggrieved filed revision petition before the Member, Board of Revenue who accepted the same vide order, dated 29-7.-1999. Respondent No,1 being aggrieved filed review petition before the Member, Board of Revenue who dismissed the same vide order, dated 31-1-2000. Respondent No,1 being aggrieved filed constitutional petition, in the Lahore High Court which was accepted as mentioned above. Hence, the present petition.
3. Learned counsel for the petitioner submits that learned High Court erred in law to substitute its own finding in place of finding of the Member, Board of Revenue while exercising power under Article 199 of the Constitution, therefore, learned High Court had no jurisdiction to substitute its own finding. He further urges that learned High Court had erred in law to accept the constitutional petition of respondent No,1 in violation of rules 17 and 19(2) of the West Pakistan Land Revenue Rules, 1968. He further maintains that learned High Court had also misconstrued and misinterpreted the judgment of this Court passed in Maqbool Ahmed Qureshi's case PLD 1999 SC 484 without adverting to the contention raised by the learned counsel for the petitioner as depicted from para.6 of the impugned judgment. He further urges that learned Member, Board of Revenue was justified to appoint the petitioner as Lambardar on the ground that by flex of time petitioner was also retired from Government service and the learned Member, Board of Revenue was well within its right to decide the revision petition of the petitioner keeping in view the subsequent events whereas the learned High Court had erred in law to ignore the subsequent events of retirement of petitioner from Government service.
4. Learned counsel for the respondent has supported the impugned judgment.
5. We have considered the submissions of learned counsel for the parties and perused the record.
It is an admitted fact that after comparison of the qualification of the petitioner and respondent No,1, the Assistant Commissioner had recommended the name of the respondent No,1. Deputy Commissioner/Collector, Jhang after judicial application of mind by the comparison of the qualifications of the petitioner and respondent had come to the conclusion that respondent No,1 was better qualified for the post in question and thereafter he had issued appointment letter of respondent No, I on 11-3-1996. It is a settled law that recommendations of the Assistant Commissioner must be given due weight which had been given by the Collector at the time of issuing appointment letter to respondent No,1. Order of the Collector is in consonance with the law laid down by this Court in Subedar Muhammad Asghar's case PLD 1976 SC 435. It is also an admitted fact that Tribunals below i,e, the Collector and Commissioner had concurrently decided the case in favour of the respondent No,l. The Member, Board of Revenue had disturbed the concurrent findings of fact recorded by the Tribunals below while exercising revisional jurisdiction without pointing out any infirmity or illegality in the orders of the Collector and the Commissioner.
The learned High Court had disturbed the concurrent findings of fact recorded by the Tribunals below in revisional jurisdiction merely on the ground that petitioner had retired from public service and there was no other complaint or disqualification against him as evident from para.5 of judgment of the Member, Board of Revenue dated 29-7-1999. It is pertinent to mention here that both the Tribunals below (Collector and the Commissioner) appointed respondent No,1 as Lambardar after discussing merits and demerits of the each candidate and petitioner as mentioned above could not point out any disqualification rendering respondent ineligible for appointment as Lambardar. In fact petitioner has failed to point out any infirmity or illegality in the concurrent findings of both the Tribunals below, therefore, there was no justification to interfere with the same by the learned Member, Board of Revenue. This fact brings the case in the area that the learned Member, Board of Revenue had reversed the findings of the Tribunals below without application of mind. It is a settled law that public functionaries are duty bound to decide the controversy between the parties after judicial application of mind as envisaged by section 24-A of General Clauses Act and Article 4 of the Constitution as law laid down by this Court in Aslam Warraich's case PLD 1991 SC A 2330, Mollah Ejahar Ali's case PLD 1970 SC 173 and Gouranga Mohan Sikdar's case PLD 1970 SC 158. It is the command of the Constitution by virtue of Articles 4 and 5(2) that the public functionaries have to decide the controversy between the parties in accordance with law and not in derogation of law as law laid down by this Court in Utility Stores's case PLD 1987 SC 447. The contention of the learned counsel for the petitioner that the highest forum in the hierarchy of Revenue Officers is the Member, Board of Revenue, therefore, High Court had erred in law to interfere in the findings with regard to appointment of Lambardar has no force in view of aforesaid discussion that Member, Board of Revenue is duty bound to decide the cases in accordance with law and shall not disturb the findings of fact recorded by the Tribunals B below unless and until the same are suffered from illegality or irregularity or in violation of any law laid down by the superior Courts. All these ingredients are not mentioned in the judgment dated 29-7- 1999 of the Member, Board of Revenue as mentioned above. As mentioned above, there are concurrent findings of fact recorded by the two forums, their orders are based on correct appreciation of facts and law and there was no misreading or non-reading of material or misconstruction of law, therefore, learned Member, Board of Revenue was not justified to C disturb the, concurrent findings of fact recorded by the Courts below while exercising provisional jurisdiction. Similarly, the learned counsel for the petitioner submits that learned High Court had substituted its own finding in place of the finding of the Member, Board of Revenue has no force as the learned High Court had set aside the orders of the Member, Board of Revenue and restored the orders of Tribunals below i,e, Collector and Commissioner as the same were in consonance with the mandatory provisions of law. It is pertinent to mention here that order of the Member, Board of Revenue on the face of it was against the settled proposition of law mainly that the matters are required to be decided between parties on the basis of cause of, action which has accrued at the time when the action was initiated whereas the learned Member, Board of Revenue had disturbed the findings as mentioned above by efflux of time the petitioner has retired from Government service. See Noor Muhammad's case 2003 SCM R 708.
6. For what has been discussed above, the petition has no merit and the same is hereby dismissed.
Leave declined.