CH. MUHAMMAD MASOOD JAHANGIR, J.- The facts germane for the disposal of the instant Constitutional petition are that Muhammad Jaimal son of Sader Din was Lumberdar of the village Bhagokay Arain, Tehsil Chunain, District Kasur, who was removed from his office by the competent authority/District Collector vide his order dated 22.09.1942. The said vacancy was temporarily filled by the competent authority while appointing Barkhurdar father of respondent No.1 as Lumberdar of the said village and on his death the affairs of Lumberdari were handed over to respondent No.1 on temporary basis. The revenue hierarchy initiated process for the appointment of Lumberdar and applications were invited from the candidates. Gohar Ali, present petitioner, Muhammad Yousaf, respondent No.1 and Muhammad Ibrahim preferred their applications for the said post. The revenue staff right from Naib Tehsildar to Assistant Commissioner had recommended the present petitioner being eligible candidate for the said post. One of the above referred candidates, namely, Muhammad Ibrahim withdrew his application in favour of the petitioner and the District Collector, Kasur vide his order dated 01.02.2006 appointed the present petitioner as Lumberdar against the said vacant post. The order of the District Collector was assailed by respondent No.1 by filing an appeal before the Executive District Officer (Revenue), Kasur, which was dismissed vide order dated 23.08.2006. Being aggrieved, respondent No.1 brought R.O.R No. 1699 of 2006 before the Board of Revenue, which was accepted vide order dated 25.11.2009 and order dated 01.02.2006 passed by the District Collector as well as order dated 23.08.2006 delivered by the Executive District Officer (Revenue), Kasur was set aside and respondent No.1 was appointed as Lumberdar of the concerned village. The petitioner being dissatisfied with the said order filed Review Petition No. 428 of 2009 in ROR No. 1699 of 2006 before the Board of Revenue, which was dismissed vide order dated 29.10.2011. The petitioner being aggrieved of the orders dated 25.11.2009 and 29.10.2011 passed by Board of Revenue has assailed the same by filing the instant writ petition.
2. It is submitted by the learned counsel for the petitioner that impugned orders suffer from serious misreading and non-reading of record and were passed in a mechanical manner without application of judicious mind; that the Revenue field staff as well as the District Collector and Executive District Officer (Revenue) after considering the merits and demerits of the candidates rightly found the petitioner eligible for the post of Lumberdar, but the Member, Board of Revenue passed the impugned orders in complete derogation of record and without application of his judicious mind. It is further argued that respondent No.1 had been convicted in a criminal case vide F.I.R. No. 310 of 2002 registered under section 430 of Pakistan Penal Code, 1860 at police station Kanganpur, District Kasur and a fine of Rs.1,000/- was imposed against him, which was deposited by him, but the said fact has been ignored by the MBR/respondent No.4 while passing the impugned orders; that respondent No.1 also remained involved in a criminal case F.I.R. No. 285/2008 registered under section 302, 324, 148, 149 of Pakistan Penal Code, 1860; that respondent No.1 being not a man of good character was not entitled for the appointment against the post of Lumberdar; that petitioner had neither been involved in any criminal case nor was convicted rather he is a popular, famous and influential person of the locality; that the petitioner owns more chunk of land than respondent No.1 and also possesses the hereditary claim, but the said aspect of the case has been ignored by the Board of Revenue while passing the impugned orders. He has lastly prayed for the acceptance of writ petition, setting aside of the impugned orders and restoration of orders passed by the District Collector as well as Executive District Officer (Revenue), Kasur.
3. Conversely, learned counsel for the respondent No.1 has refuted the arguments advanced by the leaned counsel for the petitioner and submitted that being son of ExLumberdar, respondent No.1 possess the hereditary claim and that Board of Revenue after considering the merits and demerits of the case rightly appointed the respondent No.1 as Lumberdar of the concerned village.
4. Arguments of both the parties heard and record perused.
5. For the appointment of permanent Lumberdar of the village the controversy of eligibility is to be decided according to law while taking into consideration all the requirements provided under Rule 17 of the West Pakistan Land Revenue Rules, 1968. Among other matters which have to be seen conjunctively, those are (i) the hereditary claim of the candidates; (ii) 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;
(iii) services rendered to the Government by him or by his family; (iv) his personal influence, character, ability and freedom from indebtedness; (v) the strength and importance of the community from which selection of a headman is to be made; and (vi) his ability to undergo training in Civil Defence in the case or headman in Tehsils situated along the Border. There is no denial of the fact that Muhammad Jaimal was the permanent Lumberdar of the village, who was removed from the said post on account of his inefficiency and thereafter Barkhurdar, the father of respondent No.1 was appointed as temporary Lumberdar and on his demise respondent No.1 also performed the duties of Lumberdar on temporary basis. During the course of arguments, it is admitted that last permanent Lumberdar Muhammad Jaimal was real brother of grand-father of the present petitioner and Muhammad Ibrahim, who withdrew his candidature in favour of the present petitioner is the real grandson of the above referred permanent Lumberdar, whereas respondent No.1 is not related to Muhammad Jaimal, exLumberdar. The revenue officials also indicated the said fact in their report dated 25.01.2006 so the factor of hereditary claim, if is advanced, will must favour the present petitioner. No doubt, Barkhurdar the father of respondent No.1 had been appointed as Lumberdar of the concerned village after the removal of Muhammad Jaimal, but he was never appointed as permanent Lumberdar and the said post was filled for interim period on temporary basis. The father of respondent No.1 was appointed as temporary Lumberdar and as at the time of such appointment hereditary claim was not considered, then how the factor of hereditary claim can be extended to any of legal heir of temporary Lumberdar at the time of appointment of a permanent Lumberdar.
6. According to report of revenue officials, the petitioner owned land measuring 115-kanal 17-marla whereas respondent No.1 was owner of land measuring 64-kanal 19 marla. The factor to the extent of the property in the estate was also in favour of the present petitioner. The withdrawal of candidature of Muhammad Ibrahim grandson of Muhammad Jaimal ex-Lumberdar of the village in favour of the petitioner was also a plus point in his favour. The petitioner had been elected as Councilor of the village for four times and his son was also elected as Councilor, which is also an evidence of his personal influence and credibility in the area. It is also admitted during the course of arguments that respondent No.1 had been convicted in the above referred criminal case under section 430 of the Pakistan Penal Code, 1860, whereas the petitioner does not possess any such discredit and therefore, on moral side, the petitioner has also better edge over respondent No.1.
However, the petitioner as well as respondent No.1 are of similar age, who belong to the Jutt community and also illiterate persons, thus on all these three aspects, one cannot be given preference over the other.
7. The above referred discussion reflects that the case of the present petitioner is on better footings than respondent No.1 on the count of hereditary claim, his personal influence, character, ability and extent of property in the estate. The apex Court in landmark judgment reported as MAQBOOL AHMAD QURESHI VS. THE ISLAMIC REPUBLIC OF PAKISTAN (PLD 1999 SC 484) after discussing plethora of judgments and while relying upon various Verses of Holy Quran has observed as under:- All these principles laid down by the Holy Qur'an and the Sunnah of the Holy Prophet (SAW) are sufficient to indicate that the appointments to an office of the Government are to be made on the basis of merits. Verse 2:124 of the Holy Qur'an has not approved the concept of hereditary claim as sole basis or criteria for appointment to an office, what to say of applying rule of primogeniture in making appointment of a successor to the office and the principle deducible appear to be that offices which are regarded as sacred trust are to be passed on to those who are entitled thereto i.e. To those who are qualified and trustworthy to discharge the duties of office honestly. Thus, merits of the appointee with reference to the requirements of the job assigned is to be the criteria. What should be the qualifications of the person to be appointed would naturally depend on the nature of the employment, service or the job keeping, however, in view the distinction between employment against a job or service and tilling a public office which entails discharge of obligations of State or functions of sovereign nature.
The principle deducible from the Injunctions of Islam noted above is that appointment against an office, official agency, job or employment has to he 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 (1) of Rule 19 of the Rules providing for rule of primogeniture as the basis of appointment successor, though interpreted by the Supreme Court as directory rule designed to select a most fit person from amongst eligibles who is free from any of the disqualifications, is violative of the aforenoted 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 the 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 o` 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 Lambardar 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.
The bare perusal of the above referred dicta has left no room that a suitable person acquiring more qualifications as referred in Rule 17 ibid is to be given preference.
8. There is much force in the contention of the learned counsel for the petitioner that choice of the District Collector in appointment of Lumberdar should be given preference. Member, Board of Revenue/respondent No.4 while passing the impugned orders has brushed aside the choice of District Collector in the selection of Lambardar, which as per various decisions of the Member, Board of Revenue itself, is not to be interfered with, especially when the Collector exercised his discretion in a reasonable manner. Reliance is placed upon the judgments reported as ABDUS SALAM RAJPUT VS. MUHAMMAD AMIN KHAN RAJPUT (PLD 1972 Revenue 16) and HAJI BURHAN VS. HAJI IBRAHIM (PLD 1974 Revenue 82). The apex revenue hierarchy can only upset the choice of the District Collector when his choice is found to be perverse. No finding of perversity of choice has been recorded by the Member, Board of Revenue/respondent No.4 in the impugned orders. The appointment of Lumberdar is purely an administrative matter and it is obligatory upon the revenue hierarchy to appoint a suitable candidate as Village Headman because office of Lumberdar is a link between villagers and administration and suitability or otherwise regarding appointment to offer lies with the relevant revenue authorities. The Member, Board of Revenue has failed to consider the qualifications of the available candidates i.e. Petitioner and respondent No.1 as per the requirement of Rule 17 ibid and the parameters settled in Maqbool Ahmed Qureshi's case (supra), which has rendered the impugned orders illegal, unlawful, ultra vires and without jurisdiction and the same are amenable by this Court in the exercise of writ jurisdiction.
9. Consequently, the instant writ petition is accepted, impugned orders dated 25.11.2009 and 29.10.2011 passed by Member, Board of Revenue are hereby set aside, while the orders dated 01.02.2006 and 23.08.2006 passed by the District Collector, Kasur and Executive District Officer (Revenue), Kasur respectively are restored. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.