' MUHAMMAD FARRUKH IRFAN KHAN, J.---Walyat Ali, petitioner through this Constitutional petition assails the order of respondent No, 2 dated 2-6-2009, whereby he accepted the revision petition of respondent No,1 and appointed him as Lambardar.
2. Facts of the case in brief are that the petitioner and respondent No,1 applied for the post of Lambardar of Chak No,68/12 Tehsil & District Nankana. Respondent No .4 through order, dated 9-1- 2008 recommended respondent No,1 as Lambardar. Being aggrieved, the petitioner preferred an appeal before Executive District Officer (Revenue), Nankana Sahib/respondent No,3, who accepted the same through order dated 29-4-2008. Feeling dissatisfied, respondent No,1 moved a revision petition before the learned Member Board of Revenue/respondent No,2, which has been accepted through the impugned order dated 2-6-2009. Hence, this writ petition.
3. Learned counsel for the petitioner submits that the order of respondent No,2 is not sustainable under the law; that respondent No,2 knocked out the petitioner for the post of Lambardar merely on the basis of less education than that of respondent No,1; that education is not a criteria under Rule 17 of Land Revenue Rules, 1968 for appointment as Lambardar; that respondent No,2 has not considered the requirements laid down in the said Rule; that the petitioner performed his services as temporary Lambardar for the last eighteen years and there is no complaint against him; that a criminal case of heinous nature was registered against respondent No,1 and his father, therefore, respondent No,1 is not a fit person to be appointed as Lambardar.
4. Conversely, the learned counsel for respondent No,1 submitted that respondent No,1 is the owner of land measuring 101K-13M, whereas, the petitioner is owner of property measuring 12 Kanals only which is not sufficient for surety; that respondent No,1 is educated, whereas, the petitioner is an illiterate person; that respondent No,1 is a man of good character and enjoys good reputation; that respondent No,1 and majority of inhabitants of the locality have same caste in the Chak; that the order passed by respondent No,1 is well reasoned and needs no interference.
5. I have heard the arguments advanced by both the learned counsel and perused the record.
6. The criteria to be considered for appointment as headman is envisaged in Rule 17 of Land Revenue Rules, 1968 which reads as follows:---
(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 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 along the Border;
7. In order to resolve the controversy in the present petition inter alia, Rules b, c, d and e are relevant.
(a) Admittedly, respondent No,1 has more property than that of the petitioner, Although the extent of property owned by a candidate is one of the criteria to be considered, however, this fact alone cannot be considered as of primary importance while making the appointment as Lamberdar.
Ownership of land in a larger holding is meant to safeguard the interest of the Government in payment of the Government dues by the Lamberdar. However, a Lamberdar having more property/land, if mortgage's his holding and delivers the possession of the holding to the mortgagee, is required to leave the office of the Lamberdar. The payment of Government dues can be safeguarded by ordering a candidate to furnish an adequate surety. In this case the petitioner B admittedly, owns 12K land, which is sufficient to be used as a surety for the payment of dues collected by him on behalf of the Government. The petitioner has worked as a temporary Lamberdar for eighteen years with an unblemished record and there is no default on his part, B therefore, mere fact that the petitioner has less property than respondent No,1 is not fatal for him and he cannot be ignored merely on that basis.
(b) As far as Rule (c) ibid is concerned, admittedly, the post of Lamberdar of Chak No,68/12 Tehsil & District Nankana remained vacant since long and the petitioner served as temporary Lamberdar for about eighteen years without any monetary gain. During that period there was no complaint of default or c embezzlement of Government's dues on the part of the petitioner. The petitioner as temporary Lamberdar rendered services for more than eighteen years and has experience of recovering and depositing of money in the Government Treasury. Whereas, on the other hand, respondent No,1 has not performed such like services for the Government. This apparently was due to the fact that no remuneration: or monetary gain was to be achieved by acting as temporary Lamberdar. Now as the State land measuring 12-1/2 Acres is being allotted to a Lamberdar under Lamberdari scheme, obviously every owner of a larger holding including respondent No,1 would be desirous of becoming a beneficiary of the same. Keeping in view the services rendered by the petitioner towards the Government in the past eighteen years, he has a preferential right of becoming a Lamberdar over respondent No, 1 .
(c) As far as Rules (d) and (e) ibid, are concerned, although admittedly majority of the people in the village belong to the caste of respondent No, 1 yet the petitioner remained temporary Lamberdar for so many years without any complaint from the inhabitants of the locality as per record. This fact shows the positive with the inhabitants of the Chak influence and relations of the petitioner irrespective of their caste or creed. Under the prevalent scenario communities are to be taken as a whole and should not be divided on the basis of religion, ethnicity, caste or sub-caste etc. Thus, the criteria laid down in these rules also tilt in favour of the petitioner.
8. Bare perusal of the order of respondent No,2 depicts that while accepting the revision petition of respondent No,1 reliance has been laid on his education as compared to the petitioner's. According to respondent No,2 as per revenue instructions, literacy is to be given consideration in the matter of appointment of Lamberdar. Respondent No,2 while doing so has not referred to any such instruction in black and white. Mere fact that one candidate is educated should not be a determining factor over an F illiterate candidate. According to Rule 17 of_ Land Revenue Rules, 1968 referred above, there is no requirement that literacy be taken into consideration as a basis while appointing a Lamberdar. Respondent No,2 while passing the impugned order failed to take into consideration various criteria stated in Rule 17 ibid as such merely placing reliance on the education of the candidates is erroneous.
9. The petitioner rendered his services for the Government as temporary Lamberdar for more than eighteen years without any monetary gain and without any complaint or default, therefore, while appointing Lamberdar on permanent basis this fact should not have been kept aside and should have been given due weightage.
10. With these observations, this petition is allowed. The impugned order dated 2-6-2009 passed by respondent No,2 Member Board of Revenue is declared to be without lawful authority and of no legal consequence and is set aside and order passed by respondent No,3/Executive District Officer (R.) dated 29-4-2008 is restored.