Through this constitutional petition petitioner has called in question the order dated 20.6.2006 passed by learned Member (Judicial-III), Board of Revenue, who accepted the revision petition against order dated 31.3.2005 passed by Executive District Officer (Revenue), Khanewal and appointed Arshad Ali Respondent No. 1 as Lambardar of the above said patti.
2. The brief facts- of the instant case are that consequent upon death of Bashir Ahmed son of Barkat Ali, Lambardar of Chak No. 108/10-R, Tehsil Jahanian, District Khanewal, the post of Lambardar in the said village had fallen vacant. On this, the District Officer (Revenue), Khanewal, on 12.7.2003, granted permission for preparation of Jadeed Missal Lambardari. The Tehsildar Jahanian invited applications from the residents of said Chak for appointment of Lambardar against the said vacant post. 91 candidates filed their applications before the Tehsildar within the given time, who also heard them. 18 candidates withdrew their candidatures in favour of petitioner Muhammad Tahir son of Muhammad Shafi, whereas, 23 candidates withdrew their candidature in favour of Respondent No. 2, Asghar Ali son of Khan Muhammad and 46 candidates withdrew their candidatures in favour of Respondent No. 1 Arshad Ali son of Bashir Ahmed. In this way 4 candidates remained in the field to contest the post of Lambardar. After considering the respective claims of the contesting candidates Tehsildar Jahanian recommended the name of. Arshad Ali, being the real son of the former incumbent of said post and forwarded the file to the Deputy District Officer (Revenue), Jahanian, who did not agree with the recommendations of the Tehsildar and he recommended the name of Muhammad Tahir petitioner for appointment of Lambardar against the said post and forwarded the same to the District Officer (Revenue) Khanewal. During hearing of the said matter one Muhammad Asif withdrew his candidature in favour of Muhammad Tahir petitioner. In this way, three candidates were in the field and after hearing the said candidates the District Officer (Revenue) vide his order dated 15.9.2004 appointed Arshad Ali son of Bashir Ahmad as Lambardar against the said vacant post. Against that order, two appeals were filed before the Executive District Officer (Revenue), Khahewal, who accepted the appeal of Muhammad Tahir Randhawa petitioner and rejected the appeal of Asghar Ali and appointed Muhammad Tahir Randhawa petitioner as Lambardar against the said post, vide order dated 31.3.2005. Arshad Ali Respondent No. 1 challenged this order in appeal while Asghar Ali Respondent No. 2 challenged it in revision before Board of Revenue which came up for hearing before Mr. Sibghat Mansoor, learned Member Judicial-III, Board of Revenue, who vide his order dated 20.6.2006 decided the same in favour of Respondent No. 1.
3. Learned counsel for the petitioner contends that District Officer (R), KhaneWal had appointed Respondent No. 1 Arshad Ali as Lambardar on 15.9.2005. This order was questioned in appeal before the Executive District Officer (R), Khanewal who accepted the appeal of the petitioner on 31.3.2005.
Arshad Ali Respondent No. 1 challenged this order in appeal while Asghar Ali Respondent No. 2 challenged it in revision before Board of Revenue which came up for hearing before Mr. Sibghat Mansoor, learned Member Judicial-III, Board of Revenue, who vide his order dated 20.6.2006 decided the same in favour of Respondent No. 1. Learned counsel contends that since order dated 31.3.2005 was not the result of material irregularity and there was no wrong exercise of jurisdiction; therefore, the mere fact that Respondent No. 3 holds different opinion is not sufficient to justify the learned Member Board of Revenue, Respondent No. 3 to upset the findings recorded by the Executive District Officer (R); that the learned Member Board of Revenue, Respondent No. 3 does not at all adhere to the reasons advanced by Executive District Officer (R) Khanewal, for appointing the petitioner as Lamberdar and failed to appreciate the fact that the petitioner is highly qualified, practicing lawyer of the same area, had been General Secretary and vice President of the Jahanian Bar Association, besides having qualities of co-operative co-villager and participation in rural activities as noted down by the Executive District Officer (R) in his order dated 31.3.2005; that the learned Member Board of Revenue, Respondent No. 3 ignored the fact that Respondent No. 1 made mis-statement about his educational qualification and thereby committed perjury which is heinous offence and disliked in all civilized societies and such a person does not deserve impugned appointment in which capacity he is to keep accounts and coordinate between the local administration. In this context, it will not be out of place to add that as gleaned out by the certificate issued by Allied Bank Bashir Ahmad father of the Respondent No. 1 was a defaulter and this position is continuing even after his death which by itself negates the satisfactory financial position of Respondent No. 1 and repel the reason advanced in his favour in the impugned order.
Learned counsel contended that the mere fact that Respondent No. 1 has kept the dhal bath' for some period does not by itself create a right to be appointed as Lumberdar; that the Respondent No. 1 has no other 'qualification except that he is son of deceased Lumbardar with education of primary level, whereas the Respondent No. 2 has not been recommended at any level, the impugned order tantamount to revive the rule of primogeniture which has been declared void and against the injunctions of Quran and Sunnah and, thus, circumvent the law declared un-lslamic in Maqbool Ahmad Qurershi vs. The Islamic Republic of Pakistan" (PLD 1999 SC 484), which order does not deserve to be maintained; that learned Member, Board of Revenue, was not legally justified to exercise his revisional jurisdiction in favour of Respondent No. 1. Learned counsel makes reliance on "Rehmat Ali vs. Sultan Muhammad" (PLD 1958 W.P.(Rev.29) and 'Mst. Hayat Begum and others vs. Mst. Kaniz Shahr Bano and another" (PLD 1958 (W.P.) Rev. 90). Learned counsel further contended that since order dated 20.6.2006 has been passed by learned Member Board of Revenue in favour of Respondent No. 3 in illegal exercise of jurisdiction, therefore, it cannot be maintained and is liable to be set aside. Reference in this respect is made to 'Muhammad Rahim and 6 others vs. Board of Revenue, Sindh and 4 others" (1992 CLC 1040). Learned counsel submitted that the learned Member Board of Revenue, Respondent No. 3 has circumvented the situation to apply the rule of primogeniture against law, whereas Respondent No. 1 had no other solid/sound qualification to be given preference for his appointment. Lastly learned counsel contended that the learned Member Board of Revenue, Respondent No. 3 has transgressed his authority and acted beyond his jurisdiction while passing the impugned order dated 20.6.2006 in favour of Respondent No. 3.
4. Conversely learned counsel for. Respondent No. 1 has supported the order of Executive District Officer by submitting that choice of District Collector for the appointment of Lambardar is to be maintained. He placed reliance on 'Muhammad Rafique vs. Nazir Ahmad and others" (2007 SCM R 287). He submitted that in the present case District Officer (Revenue) vide his order dated 15.9.2004 after dealing with the matter comprehensively and taking into consideration all the aspects appointed Respondent No. 1 Arshad Ali. Executive District Officer (Revenue) on 31.3.2005 wrongly accepted the appeal of Muhammad Tahir and set aside the order dated 15.9.2004 passed by District Officer (Revenue) in favour of Arshad Ali Respondent No. 1. He further submitted that learned Member Board of Revenue has rightly set aside the order dated 31.3.2005 of Executive District Officer (Revenue) and confirmed the order dated 15.9.2004 of the District Officer (Revenue).
Learned counsel submitted that order dated 15.9.2004 of the District Officer (Revenue) was rightly confirmed vide the revisional order dated 20.6.2006 passed by Member Board of Revenue which is quite just, legal and rational order. He further submitted that Board of Revenue is a Tribunal; an order passed by Tribunal cannot be set aside in writ jurisdiction. Learned counsel further argued that petitioner is a practicing lawyer, and under Rule 175(1) Pakistan Legal Practitioners and Bar Councils Rules, 1976; an Advocate should not join or carry on any other profession, business, service or vocation or shall not be an active partner or a salaried official or servant in or be subject to the terms and conditions of service of the Government, semi-Government or autonomous body or any other organization or institution, public or private. He argued that petitioner being an advocate cannot hold the post of Lumberdar, as it would be violative of the above quoted rule.
5. I have heard the learned counsel for the parties at length and perused the record.
6. District Officer (Revenue), Khanewal vide order dated 15.9.2004 after obtaining reports from the Revenue Officer in the light of recommendations made by them although appointed Respondent No. 1 as Lambardar of Chak No. 108/10-R, District Khanewal. The said appointment order of District Officer Revenue was assailed in appeal. The Executive District Officer Revenue vide order dated 31.3.2005 accepted the appeal of Muhammad Tahir Randhawa, present petitioner. In this appellate order dated 31.3.2005 detail discussion has been made on the merits and demerits of the petitioner and Respondent No. 1 for appointment of Lamberdar. The Executive District Officer (Revenue) has discussed pros and cons of each and every aspect of the case with regard to education, efficiency, and family background. The E.D.O.R. in his order dated 31.3.2005 has held that petitioner Muhammad Tahir Randhawa son of Muhammad Shafi is permanent resident of Chak No. 108/10-R District Khanewal. He is owner of agricultural land Measuring 66 Kanals 14 Marlas and Arshad Ali Respondent No. 1 is owner of agricultural land measuring 9 Kanals 6 Marlas. The petitioner Muhammad Tahir Randhawa is B.A.L.L.B. and Respondent No. 1 is primary and Respondent No. 2 is middle. It is further observed by the E.D.O. (Revenue) that Muhammad Tahir Randhawa is fully equated with the affairs of Lambardar and he is owner of sufficient land for `Zare-Birth'. On these grounds the EDOR accepted the appeal of the petitioner.
7. The order dated 20.6.2006 passed by learned Member, Board of Revenue is mechanical order, by which, order dated 31.3.2002 passed by Executive District Officer (Revenue), Khanewal, is set aside.
Learned Member, Board of Revenue has not given cogent reasons for upholding the order dated 15.9.2004 and has not applied his judicial mind to the facts of the case. The learned Member, while accepting the revision petition did not point out any illegality or mistake in the order dated 31.3.2005 passed by Executive District Officer (Revenue). Further, the Respondent No. 1, for the first time has raised objection in the light of Rule 175 of Pakistan Legal Practitioners and Bar Councils Rules, 1976 which is reproduced as under: "An Advocate shall not join or carry on any other profession, business, service or vocation or shall not be an active partner or a salaried official or servant in or be subject to the terms and conditions of service of the Government, semi-Government or autonomous body or any other organization or institution, public or private."
Learned counsel for the respondent submits that an advocate cannot be appointed as Lumberdar in the light of above said rule. This plea is never raised by the respondents before District Officer (Revenue); E.D.O. (Revenue), or Member, Board of Revenue, Respondent No. 1 is estopped to raise this objection now in writ jurisdiction. The post of Lumberdar does not fall within the prohibited arena, prescribed in Rule 175 (1). It is my considered opinion that order dated 31.3.2005, passed by E.D.O.(R), Khanewal is well reasoned, rational and convincing for appointment of Lumberdar in favour of the petitioner. In the light of above discussion this writ petition is allowed; order dated 20.6.2006, passed by Member, Board of Revenue, Punjab Lahore is set aside declining it without lawful authority; as a consequence of which order dated 31.3:2005 passed by E.D.O.(R), Khanewal, in favour of petitioner is restored. No order as to costs.