MUHAMMAD AMEER BHATTI, J. --- Through this writ petition orders dated 23.4.2011 and 17.2.2011 passed by the respondent No. 1 Senior Member Board of Revenue have been assailed by the petitioners.
2. The brief facts of the case are that after the dismissal of Muhammad Ashraf Lamberdar of Chak No. 519-GB Tehsil and District Toba Tek Singh from his post on 13.10.2001, Sadiq A.I was appointed as Lamberdar vide order dated 20.11.2002 by the District Officer Revenue T.T.
Singh. Against this appointment of the new Lumberdar, nine candidates including the present petitioners filed the appeal before the EDO (R) T.T. Singh. The EDO (R) vide his order dated 27.5.2003 rejected the said appeals and upheld the order of the DOR.
3. Out of these nine appellants only three namely Abdul Majeed, Murwat All and Muhammad Mushtaq respondents No. 4 to 6 approached the higher forum i.e. Senior Member Board of Revenue, Punjab by way of their revision petitions.
4. The Senior Member Board of Revenue vide his order dated 29.7.2004 accepted the revisions whereby he set aside the orders of the EDO(R) and D.O.R. Dated 27.5.2003 and 20.11.2002 respectively. It is, however, added that Sadiq A.I was declared disqualified for the post of Lumberdar. The senior Member Board of Revenue through his order has remanded the case to the DOR with a direction to decide the matter afresh after considering comparative qualification of the candidates except Sadiq A.I. In accordance with law and rules.
5. The petitioners who have not filed any revision against the order of the EDO (R) before the SMBR, after remand, approached the DOR for consideration of their names for the appointment of Lumberdar. The DOR vide his interim orders dated 20.10.2009 and 28.1.2009 refused to allow the present petitioners to participate in the appointment process of the Lumberdar, These orders were challenged before the EDO(R) by the present petitioners who also directed the DOR to restrict himself to only those candidates whose case have been remanded by the Senior Member Board of Revenue. Then the matter went up to the Senior Member Board of Revenue through ROR who vide his order dated 17.2.2011 dismissed the revision petition of the petitioners. However, the dismissal order was challenged in review petition before the same forum which was also dismissed vide order dated 23.4.2011 by the Senior Member Board of Revenue, leading to this petition.
6. The contention of the learned counsel for the petitioners is that even if they have not challenged the order of the EDO(R) before the Member Board of Revenue/respondent No 1, they have every right to participate/contest for the appointment of Lumberdar as the orders of the DOR and EDO (R) have been set aside by the respondent No. 1 even on the revision filed by other contestants. Further contends that the order of the DOR and EDO (R) have been set aside declaring nullity in the eye of law, hence right of participation has accrued to them and their candidature for appointment of the Lumberdar is to be considered, hence the order in series passed by the revenue hierarchy are illegal, unlawful without any justification and infringement of the fundamental rights of the petitioners. It is farther contended that the seat of the Lumberdar is vacant and it should be open for every eligible candidate of the locality to participate for the appointment of Lumberdar. It is further contended that non-filing of the revision against the order of the EDO (R) by the petitioners do not create, any estoppel against them as the Member Board of Revenue set aside the order of appointment of Sadiq A.I on the basis of disqualification attached with Sadiq A.I. The order does not reflect that the petitioners before the respondent No. 1 were eligible and competitive and they have been deprived of by misinterpreting the order.
7. Since Sadiq A.I became disqualified due to some violation of the order of the High Court as he was convicted under Contempt of Court Act, hence seat falling vacant in the wake of disqualification of Sadiq A.I, giving way to de novo exercise of filling of the seat under the new circumstance, thus opening the doors for every eligible candidate to participate in the process of appointment. This aspect of the case has not been considered by all the respondents from the revenue hierarchy, which has resulted in miscarriage of justice.
8. Conversely the learned counsel for the respondents has supported the orders passed by all the respondents and contends that all the orders are in accordance with law and there is no illegality or irregularity or jurisdictional defect in the order, hence the writ petition is not maintainable.
Further contends that the case was remanded on the revision filed by the respondents No. 4 to 6 against the order of the DOR and EDO (R), hence they are the only entitled to get the benefit of that remand order not the present petitioners as they have lost their right after non-filing of the appeal/revision before the Board of Revenue against the order of the EDO (R). As such their right to complete for the appointment of the Lumberdar stands vitiated. Further contends that it is not a case of new appointment of Lumberdar after the dismissal of Sadiq All but it is a remand case on the revision petition of the respondent, herein the petitioner.
9. I have considered the arguments of the learned counsels for the parties and also perused the relevant orders of the respondent with the beneficial assistance of the learned counsels. The most relevant order of the respondent No. 1 is the remand order, which requires interpretation. It would be more appropriate to reproduce the same for ready reference as under:- "These appeals are accepted. The impugned order of Executive District Officer (Revenue), Toba Tek Singh dated 27.5.2003 and order of District Officer (Revenue), Toba Tek Singh dated 20.11.2002 are set aside. The case is remanded to District Officer (Revenue), Toba Tek Singh for decision afresh after considering comparative qualification of the candidates in accordance with law/rules on the subject. While doing so, the District Officer (Revenue) shall disregard the candidature of Mr. Sadiq All respondent".
10. From the bare reading of this Para, it is crystal clear that the order of appointment of Sadiq was set aside with the stigma of disqualification attached to him and case was remanded back to the DOR for decision afresh after comparative qualification of the candidates in accordance with law/rules and did not in any way, limit the appointment of Lambardar to the extent of the revision petitioners, rather it has opened the avenues of appointment for every eligible candidate with the freedom to participate in the contest and DOR was directed to decide the matter after considering the comparative qualification, meaning thereby, that he has opened the door for all eligible competitors. Even otherwise, it is fundamental right of every qualified citizen to contest for any vacant seat. I am at a loss to understand how the restrictio can be imposed on any citizen of this country when he is otherwise eligible to compete for any vacancy. Since the order of DO(R)/the appointing authority has been set at naught, the matter has been brought to the first stage i.e. Every eligible candidate is lawfully entitled, to apply/compete for the post of Lambardar irrespective of the fact whether any candidate filed any appeal or not. So far as the question of estoppel against the petitioners is concerned, fundamental rights enshrined in the Constitution of Pakistan take precedence over the rule of estoppel.
11. For the foregoing reasons, this writ petition is allowed and the orders impugned dated 23.04.2011 and 17.02.2011 are hereby declared illegal, unlawful and against the fundamental rights of the petitioners and the same are set aside with a further direction to the respondent No. 3 that the petitioners' candidature for post of lambardar shall be treated at par with other contesting candidates and the appointment of lambardar shall be made afresh after considering comparative qualification of all the eligible candidates including the writ petitioners in accordance with law/rules on the subject. .