' SYED HAMID ALI SHAH, J.--- The petitioner is resident of Chak No,259 R.B. Tehsil and District Faisalabad, where she owns agricultural land measuring 37 Kanals. Her father and grand-father remained Lambardar of the village. Her grand-father in recognition of his valuable services, was awarded various certificates of merits, from 1901 to 1940. The petitioner's father remained Lambardar and thereafter her brother Faqir Muhammad was appointed Lambardar on 29-4-1966.
He remained Lambardar till his death i.e, 17-8-1994., The petitioner and her brother lived together in one house. Faqir Muhammad died issueless. The petitioner, respondent No,1 and six others, applied for the post of Lambardar and the Field Staff recommended the petitioner and in case she is not appointed as being a female, Muhammad Farooq son of Fazal Muhammad was recommended .
The Collector ignored the recommendation of the Field Staff and vide order dated 15-7-1999 appointed respondent No,1, as Lambardar. The petitioner and another applicant Taj Din challenged order dated 15-7-1999 through separate appeals before the Commissioner who dismissed the appeals vide order dated 25-7-2000 and upheld the decision of the Collector. The revision before the Board of Revenue, against the impugned decisions met the same fate which was dismissed on 9-4-2003. The petitioner through the instant petition has challenged the decisions/orders dated 9- 4-2003; 25-7-2000 and 15-7-1999.
2. Learned counsel for the petitioner has argued that the petitioner's brother, father and grandfather performed the duties as Lambardar. Other legal heirs of the deceased Faqir Muhammad had withdrawn their claim in favour of the petitioner. The petitioner as against respondent No,1, who is a stranger, has much superior right. The Lambardari had remained in the family of the petitioner. She and her deceased brother remained in one home and as such she is familiar with the duties and functions of Lambardar. Respondent No,1 mostly remains absent from the village, who frequently visits Behrain and Hong Kong. He is in un-authorized possession of the State land in Khewat No,522 which disentitled him to the appointment of Lambardar. Learned counsel has lastly contended that in view of provisions of section. 17(a) of the West Pakistan Land Revenue Rules, 1968 the petitioner has superior right. In support of his contentions, the learned counsel has referred to the cases of "Muhammad Sarwar v. Umar Din" (PLD 1957 Revenue 31), "Ghulam Rasul v. Hasan Muhammad" (PLD 1960 Revenue 52) and "Ch. Asghar Ali v. Member, Board of Revenue and others" (1993 CLC 858).
3. On the other hand, learned counsel .For respondent No,1 has supported the impugned orders. He submitted that grounds agitated in this petition, regarding the fact that Field Staff has not recommended the respondent No,1, was not urged before the learned Commissioner and as such cannot be raised at this stage. He has referred to the case of 'Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan" (PLD 1999 SC 484) to contend that hereditary claim of Lmbardari is neither mandatory nor directory. The petitioner being lady cannot prevent crimes, which is none among the primary responsibility of the Lambardar.
4. I have heard learned counsel for the parties and perused the material available on the record.
5. According to the report of the Field Staff, the petitioner on the basis of family background, kinship and being real sister of deceased Lambardar, was considered as suitable candidate. The Field Staff however reported that in case, she is denied her right being a female, then Arshad Ali Khan was recommended being a suitable candidate. Respondents while passing the impugned orders have totally ignored the recommendation of the Field Staff. The recommendation of the Field Staff carried weight as it is the Field Staff which has the direct concern with a village and affairs of Lambardari. The petitioner was recommended by the Field Staff but at the same time, another candidate was also recommended solely on the ground of incapacity of the petitioner on account of her gender. Rule 19(2)(d) provides that ordinarily a female should not be appointed as Lambardar, a female may be appointed when she is sole owner or for special reasOns. The appointment of female as Lambardar on the principle of primogniture was approved by the Honourable Supreme Court of Pakistan in the case of "Mushtaq Hussain v. Naeem Akhtar" (PLD 1982 SC 271). Admittedly, the right of female is fully guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, under Article 25(2), The provision contained in clause (d), sub-rule (2) of Rule 19 of Punjab Land Revenue Rules, 1968, was declared as unconstitutional, in an unreported case titled Mst. Nasreen Iqbal v. Member (Revenue), Board of Revenue, Punjab and others (Writ Petition No,72 of 1993). Relevant part of the judgment is reproduced below:-- ' "It is also useful to refer-to the judgment of this Court in Mussarat Uzma Usmani and another v.
Government of Punjab through Secretary Health, Lahore and another (PLD 1987 Lahore 178), which was approved by Supreme Court of Pakistan in Shrin Munir's case supra. In the case before this Court, Mr. Justice A.S. Salam (as his Lordship then was) in his illuminatory judgment on the subject made very strong observations in the following words:-- ' "Article 25 of 1973 Constitution is clear, categorical and unambiguous altogether. It lays down that all are equal, there shall be no discrimination on the basis of sex alone and that the State may make laws for the protection of women. All are equal, man and woman, neither man nor woman shall be discriminated against, law may be made for protection of woman not against them."
' Viewed from this angle, it is obvious that clause (d) of sub-rule (19) clearly offends against the command of sub-Article (2) of Article 25 of the Constitution of Islamic Republic of Pakistan 1973. On its plain wording, the only ground for non-appointment of a female as a Lambardar is her sex. The discrimination is so obvious that it calls for no further comment except for notice may be taken of the argument of the learned counsel for the respondent that clause (d) is not violative sub-Article
(2) of Article 25 of the Constitution, as it does not completely forbids the appointment of female Lambardar, but merely provides that ordinarily a female should not be appointed.
' This argument, on the fact of it, is fallacious as the clause in question certainly places females at a disadvantage."
7. (sic). Viewing from any angle the petitioner cannot be ignored for the appointment, only on the ground of her being a female, if she is otherwise most suitable for such appointment. The impugned order dated 9-4-2003 passed by learned Member Board of Revenue, speaks of the suitability of respondent No, 1 only. It is silent with regard to the suitability of the petitioner for the appointment in b question.
8. The pith of the whole discussion is that order dated 9-4-2003 is set aside and the case is remanded to learned Member (Judicial), Board of Revenue, Punjab for its decision afresh, on the basis of report of the Field Staff dictum of law laid down in case reported as 'Mushtaq Hussain v.
Mst. Naseem Akhtar etc." (PLD 1982 SC 271) and keeping in view provisions of Rule 17(a) of the West Pakistan Land Revenue Rules, 1968.