MUHAMMAD FARRUKH IRFAN KHAN, J.---Facts of the case in brief are that post of Lamberdar of Chak No,168/10 Tehsil and District Khanewalihas fallen vacant on the demise of Muhammad Hanif (father of the, petitioner). Six candidates including present petitioner Rana Khalil Ahmad (herein after referred to as petitioner) applied for the said post. Rest of the five candidates withdrew their candidature and the District Collector recommended the name of the petitioner for the post of Lamberdar of aforesaid Chak. After completion of this process._ Muhammad Aslam respondent No,4 (hereinafter referred to as respondent No,4 moved an application before Deputy District Officer (General) after the prescribed period and the said authority remanded the matter to respondent No,3 for mushtree/munadi. Pursuant to that direction respondent No,3 after hearing all the contested candidates appointed the petitioner as Lamberdar through order dated 20-6-2006.
Respondent No,4 and one Mirza Abid Hussain assailed the validity of said order before the Executive District Officer (R)/respondent No,2 who through impugned order dated 7-3-2007 accepted' the appeal of respondent No,4 and appointed, him as Lamberdar. Being 'aggrieved the petitioner as well as said Mirza Abid Hussain filed separate revision petitions before respondent No,1 who vide impugned order dated 23-1-2008 rejected both the revision petitions. Hence, this Constitutional petition.
2. Learned counsel for the petitioner submits that the orders of both the courts below are illegal and without lawful authority; that respondent No,3 being the competent authority after observing all the codal formalities and considering the provisions of Rule 17 of Land Revenue Rules, 1968 appointed the petitioner as Lamberdar which has illegally been set aside by the appellate authority; that at the time of summoning of application respondent No,4 had no property in the Chak and the mutation was sanctioned in his favour on 20-4-2006 whereas he applied for the post of Lambardari on 30-3-2006; that respondent No,4 had also earlier on applied for the post of Lamberdar in another Patti of the Chak and later on withdrew his candidature after receiving money; that respondent No,4 is a criminal person and certain criminal cases have been registered against him; that the impugned orders are a result of misreading and non-reading of the record; that both the courts below have wrongly held that respondent No,4 belongs to majority tribe of Kamboh, whereas, according to the reports of subordinate staff- the petitioner belongs to the majority community; that respondent. No,1 has wrongly observed in its impugned order that the petitioner has sold out State land although there is nothing on the record to establish that the petitioner has transferred any piece of State land; that it is beyond comprehension as to how a person who is not the owner of land can sale out the same; that another factor depriving the petitioner from the post of Lamberdar narrated by respondent No,1 in its impugned order is that prior to filing of revision petition before it the petitioner filed a civil suit. This according to the learned counsel is immaterial; that the petitioner is in possession of the disputed land and after announcement of the judgment by respondent No,2 attested copy of the same was not delivered to him and the respondent No,4 intended to dispossess the petitioner under the garb of impugned order of respondent No,2;- that in order to save the possession the petitioner filed a civil suit which .Was, later on withdrawn on filing of revision petition before respondent No,1; that while passing the impugned order respondent No,1 has not discussed the merits/demerits of respondent No,4 and after discussing the so called weaknesses on the part of the petitioner appointed him as Lamberdar which is. Contrary to law; that after the demise of his father the petitioner is successfully serving as temporary Lamberdar since 1994 and during these 13 long years there is no complaint on his part; that respondents Nos.2 and 3 have not considered the requirements laid down in the Rules ibid; that the petitioner is owner of land measuring 24K-01M which is sufficient for "Zar-e- Bhart"; that the impugned orders are not sustainable under the law.
3. Conversely, the learned counsel for respondent No,4 submitted that the orders of both The courts below are well reasoned; that the petitioner clandestinely managed to get himself recommended as Lamberdar; that respondent No,4 moved application' before District Officer (General) about this malpractice, who ordered to invite fresh applications for the said post; that the said order of authority was not challenged before any forum and the petitioner himself participated in the new process; that respondent No,4 is a more suitable person as compared to the petitioner for the said post; that respondent No,4 is owner of land measuring 25 K-6M and a matriculate, whereas, the petitioner is middle pass and only owns 16 Kanals of agricultural land which is not sufficient for security; that the petitioner has been illegally cultivating the land reserved for Chiragah against which proceedings under sections 32/34 of the Colonization Act, 1912 have been initiated against; the petitioner; that respondent No,4 became owner of land prior to inviting the applications; that respondent No,4 belongs to majority Kamboh community; that the impugned orders are well reasoned and need no interference.
4. I have heard the arguments advanced by both the learned counsel for the parties at length and gone through the record.
5. The criteria to be considered for appointment as headman is envisaged in Rule 17 of Land Revenue Rules, 1968 whose salient features are 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;
6. In order to resolve the controversy in the present petition inter- alia, Rules a, b, c, d and e are relevant:--
(a) It is an admitted fact that the post of Lamberdar of Chak No,168/10 fell vacant on the demise of father of the petitioner as such the petitioner in addition to other considerations has also got a hereditary claim. Respondent No,1 while passing the impugned order refused to give weightage to the hereditary claim of the petitioner, while placing reliance on the judgment of the Hon'ble Supreme Court of Pakistan reported as Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484). I have minutely gone through the above esteemed judgment of the Hon'ble apex Court and am of the considered view that respondent No,1 misconstrued the aforesaid judgment.
In the said judgment the Hon'ble apex Court declared the provision contained in sub-rule (2) of Rule 19 of the Rules providing for rule of primogeniture against the injunction of Islam and nowhere were the provisions of hereditary claim contained in Rule 17 of the Rules ibid struck down by their lordships., The relevant extract of the aforesaid judgment reproduced as under:- "The principle deducible from the Injunctions of Islam noted above is that appointment against an office, official agency, job or employment has to be made on merit of a person who is honest, trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship or descent cannot be made basis for claiming preference in the matter of appointment. Thus the provisions contained in sub-rule (2) of Rule 19 of the Rules providing for rule of primogeniture as the basis of appointment of successor, though interpreted by the Supreme Court as directory rule designed to select a most fit person from amongst eligible who is free from any of the disqualification, is violative of the afore-noted principle deducible from Injunctions of Islam. The objection with regard to provision of hereditary claim amongst other factors to be considered in matter of appointment under rule 17 is without merit as this rule provides the relevant considerations which that Collector is to keep in view while making selection of the most suitable persons amongst the candidates. The cause to raise objection in respect of this Rule arose as the officer in the graded hierarchy of the Revenue administration in their judgments came to accord "hereditary claims", overriding effect,as against other considerations of area, tribe, community etc. If "hereditary claim" is taken only as one of the relevant considerations, as contemplated in the rules, in favour of a candidate whose other merits are favourable comparable with other contestants no cause of grievance will arise, rather it will meet the plea of the administration that by appointing a person from amongst the nearest eligible heir of previous Lamberdar continuity in the work and in the liaison created between the land owners and the administration is intended to be achieved. Rule 17 is therefore, not repugnant to any injunction of Islam. (Underlining is mine).
Bare perusal of the para reproduced supra makes it abundantly clear that the weightage/consideration of hereditary claim envisaged under rule 7 has not been declared against the Injunctions of Islam, therefore, while making appointment of Lamberdar amongst others, the Collector was bound to consider . Hereditary claim as one of the relevant considerations.
(b) According to the order of respondent No,1 petitioner owns land measuring 16K-1M, whereas, respondent No,4 owns land measuring 25K-16M. However, during the course of arguments, learned counsel for the petitioner disputed this observation of the respondent No,1 while claiming that the petitioner is owner of land measuring 24K-01. Even it for the sake of argument observation of respondent No,1 is taken on face value even then mere factor of less property than respondent No,1 is not fatal. No doubt 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 of a larger C 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 mortgages 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 even if it is admitted that the petitioner is owner of land measuring 16K-1M the same 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 thirteen yeas with an unblemished record and there is no default on his part, therefore, he cannot be ignored merely on the basis of less property than respondent No,4.
(c) As far as Rule (c) ibid is concerned, admittedly, the post of Lamberdar of Chak No,168/10-R Tehsil and District Khanewal remained vacant since long and the petitioner served as temporary Lamberdar for about thirteen years. During that period there was no complaint of default or embezzlement of Government's dues on the part of the petitioner. The petitioner as temporary Lamberdar rendered services for more than thirteen years and has experience of recovering and depositing of money in the Government Treasury. Whereas, on the other hand, respondent No,4 has not performed such like services for the Government. Keeping in view the services rendered by the petitioner towards the Government in the past thirteen years, he has a preferential right of becoming a Lamberdar over respondent No,4.
(d&e) As far as Rules (d) & (e) ibid are concerned, two Goshwaras of Patti Dewan Chand are available on the record. According to, Goshwara produced by the petitioner along with this petition, majority in the said Patti belongs to "Rajpoots",. Whereas, according to the impugned order of respondent No,1 as well as Goshwara of Patti Dewan Chand produced by the respondents along with their report and para wise comments majority in the said patti belongs to Kamboh family.
Even if for the sake of arguments it is presumed that the majority in the Patti belong to the Kamboh family even then it does not make any substantial difference. It is an admitted fact that the father of the petitioner remained permanent Lamberdar of said Chak and after his demise the petitioner continued to serve as temporary Lamberdar for more than thirteen years without any complaint from the F inhabitants of the locality as per record. This fact shows the positive influence and relations of the petitioner with the inhabitants of the Chak 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.
7. Bare perusal of the impugned order of respondent No,1 depicts that while rejecting the revision petition of the petitioner he laid emphasis on irrelevant and immaterial factors. Filing of civil suit for permanent injunction in order to save the possession and later on its withdrawal has no nexus while deciding the revision petition. It is also observed by this Court that while deciding the revision petition respondent No,1 adopted dual criteria. On the one hand, he extended benefit of doubt to respondent No,4 against criminal cases registered against him while observing that the said respondent is not convicted by any court thus far but on the other hand, the petitioner was non- suited merely on the basis of Fard Tawan and on the allegation of selling away Lamberdari grant. It is known to all that the lamberdari grant is a State land and it is beyond comprehension that how a person who is not owner of property can sell the same. Nothing on the record is available from which it could be inferred that petitioner sold away the State. land. Merely, on the basis of so called reports of subordinate staff which smacks mala fide it cannot be said that the petitioner sold away State land.
8. Both the courts below while passing impugned orders have not considered the criteria laid down in the Rule 17 ibid and passed the impugned orders on the basis of surmises and conjectures which are not sustainable in the eyes of law.
9. The upshot of the above discussion is that this petition is allowed as a result whereof impugned orders dated 23-1-2008 and 7-3-2007 passed by respondents Nos. 1 and 2 respectively are declared to be without lawful authority and of no legal consequence and are hereby set aside and order passed by respondent No,3/District Collector dated 20-6-2006 is restored.