The present Constitutional petition is directed against the orders dated 03.04.2013 and 06.08.2014 handed down by the Member Board of Revenue, Punjab, Lahore-respondent No.1 whereby orders dated 30.12.2010 passed by District Officer (Revenue), Bahawalpur and 16.08.2011 handed down by the Additional Commissioner (Consolidation), Multan Division, Multan, appointing the petitioner as Lambardar, have been set aside and respondent No.8 was appointed Lambardar.
2. Necessary facts giving rise to the instant Writ Petition are that Mehfoz Ahmad, respondent No.8 who is son of Muhammad Rafiq, permanent Lambardar of Chak No.90/DB, after the death of his father (Muhammad Rafiq) moved an application for his appointment as permanent Lambardar against the vacant post. The Tehsildar concerned invited applications from the inhabitants of the Chak for the appointment of Lambardar and after observing the codal formalities submitted his report to the District Officer (Revenue), Bahawalpur who after hearing the candidates vide order dated 30.12.2010 appointed the petitioner as permanent Lambardar of Chak No.90/DB, Tehsil Yazman, District Bahawalpur. Respondent No.8 assailed the said order by way of appeal before the Additional Commissioner (Consolidation) Multan Division, Multan, which was dismissed through order dated 16.08.2011. Thereafter, respondent No.8 challenged the said order of Additional Commissioner in ROR, before the Board of Revenue, Punjab, Lahore. The ROR preferred by respondent No.8 was allowed by the Member (Judicial-II), Board of Revenue, Punjab whereby orders dated 30.12.2010 & 16.08.2011, as mentioned earlier, passed by District Officer Revenue and Additional Commissioner (Consolidation), Bahawalpur, respectively, were set aside; hence this petition.
3. Learned counsel for the petitioner contends that the order passed by the appointing authority being an administrative measure could not have been set aside by the Board of Revenue without any cogent ground. In support of his contention he placed reliance on dictum laid down by the Apex Court in "MUHAMMAD SAEED v GHUYLAM SARWAR and another" (2008 SCMR 1586 ), "SHARAF DIN v Qazi ABDUL JALIL and another" (1986 SCMR 1368 ), "MUHAMMAD RAMZAN v MEMBER (REVENUE), BOARD OF REVENUE and others" (1989 SCMR 614) and "ABDUL WAHID v THE MEMBER, BOARD OF REVENUE, PUN JAB, LAHORE AND ANOTHER " (1971 SCMR 719). Further contends that respondent No.8 could not have been appointed as permanent Lambardar due to the factum of registration of innumerable criminal cases against him and the Member Board of Revenue- respondent No.1 did not consider this important aspect of the case while rendering the impugned orders dated 03.04.2013 and 06.08.2014, respectively . In this behalf, learned counsel has placed reliance on a judgment of this Court in "MUHAMMAD ALI v MUHAMMAD MUMT AZ and others" (1992 CLC 1456 ). In this context, learned counsel has also placed on record photocopies of FIRs in which respondent No.8 has been nominated as an accused i.e. FIR No.765 of 2009, registered under Sections 302, 324, 109, 34, of The Pakistan Penal Code, 1860, FIR No.500 of 2004, registered under Sections 420, 468, 471 of The Pakistan Penal Code, 1860, FIR No.369 of 2012, registered under Sections 420, 468, 471 of The Pakistan Penal Code, 1860, at Police Station Yazman, District Bahawalpur . While continuing with his arguments he submits that appointment of Lambardar cannot be claimed as of a right. Reliance in this behalf is placed on "MUHAMMAD SHAFI v MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE AND 2 OTHERS" (1972 SCMR 253) and "MUHAMMAD WARRA YAM v MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE AND 3 OTHERS " (1972 SCMR 354). Further submits that the impugned orders passed by respo ndent No.1 are based upon non-appre ciation of real facts, result of misreading of record and as such are liable to be declared illegal, void ab-initio, against the law and facts and are not sustainable in law .
4. On the other hand, learned counsel for respondent No.8 while controverting the submissions made on behalf of the petitioner has opposed this petition contending that though respondent No.8 has been involved in certain criminal cases but in none of the same conviction has been recorded against him. He placed reliance on a judgment of this Court in "Haji SHAH MUHAMMAD v MEMBER (JUDICIAL-IV) BOARD OF REVENUE, PUNJAB, LAHORE and 2 others" (2005 MLD 1663 ). Further contends that respondent No.1 while passing the impugned orders has rightly exercised its jurisdiction to which no exception can be taken in writ jurisdiction by this Court and that the matter relating to the appointment of Lambardar falls purely within the domain of respondent No.1. In support of his contentions he placed reliance on "ABDUL GHAFOOR v THE MEMBER (REVENUE) BOARD OF REVENUE AND ANOTHER" (1982 SCMR 202), "ABDUL REHMAN BAJW A v SULTAN AND 9 OTHERS" (PLD 1981 SC 522), "ABDUL KARIM v MEMBER, BOARD OF REVENUE, PUNJAB and 2 others" (1993 MLD 1628 ).
Further submits that there is no jurisdictional defect in the impugned orders passed by respondent No.1, so it cannot be interfered with by this Court. Reliance in this behalf is placed on a judgment of this Court in "BASHIR AHMED v MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 2 others" (2007 CLC 354 ).
Learned law of ficer, however , supported the impugned orders being assailed in the present W rit Petition.
5. I have heard learned counsel for the parties and have also gone through the documents appended with this petition.
6. Rule 17 of The West Pakistan Land Revenue Rules, 1968 provides a criteria to select a person as a Lambardar .
According to said rules specific numbers have been earmarked. Though accordin g to contents respondent No.8 was ahead of the candidates, however, as he was involved in more than one criminal case he could not be considered as a fit person to hold the post of Lambardar. While dilating upon some of the similar situation this Court in the case "MUHAMMAD ALI v MUHAMMAD MUMTAZ and others" (1992 CLC 1456) held that such a person cannot be given the task of Lambardar as he has to play role of mediator between assesses and the department to collect land revenue. Decision of the Member Board of Revenue setting aside the concurrent verdicts of the Courts below is considered on the touchstone of the afore-quoted judgment of this Court. There leaves no ambiguity that the same has been passed in a clear cut violation of the said judgment.
7. Considering the matter from another angle the revenue authorities who have direct liaison with the applicant for the post of Lambardar are considered to be best judges for the selection of a person against the said post. Insofar as the case in hand is concerned, though the lower forums in the revenue hierarchy recommended the name of the petitioner for appointment as Lambardar on tangible ground but the Member Board of Revenue reversed the findings of the said forums without referring to any persuasive material. Inasmuch as cursory glance over the order passed by the Member Board of Revenue shows that the same is bereft of any reasoning, what to talk of valid reasons. Reference in this behalf is placed on "Messrs UNITED WOOLLEN MILLS LTD. WORKERS' UNION v Messrs UNITED WOOLLEN MILLS LTD." (2010 SCMR 1475 ), "FASIH-UD-DIN KHAN and others v GOVERNMENT OF PUNJAB and others" (2010 SCMR 1778 ) and "MUHAMAD SAEED v GHULAM SARWAR and another" (2008 SCMR 1586 ).
8. The Apex court of the country in the case of "MAQBOOL AHMAD QURESHI v THE ISLAMIC REPUBLIC OF PAKIST AN" (PLD 1999 SC 484) has scraped the idea of appointment of a person against the post of Lambardar on hereditary basis. According to the Amended Rule 17, though certain marks have been earmarked on account of experience but no authority including the Member Board of Revenue is allowed to convert the marks of experience into that of hereditary claim as the said approach amount to nullify the effect of the decision of the Apex Court.
Even otherwise, if for the sake of academ ic discussion it is presumed that 30 mark s were earmarked on account of experience, it is not believable that out of 30 marks, 100% were to be given to respondent No.8.
9. According to Section 24-A of The General Clauses Act, every government functionary is bound to decide a matter through a speaking order encompassing valid reasons and if for the valid reasons the impugned order is adjudged in view of Section 24-A the same does not fulfill the criteria laid down for a speaking order . Reference in this behalf may be made to "MOLLAH EJAHAR ALI v GOVERNMEN T OF EAST PAKIST AN AND OTHERS " (PLD 1970 SC 173 ).
10. It is astonishing to note that while dealing with the question relating to regist ration of criminal cases against respondent No.8, the Member Board of Revenue has shown so magnanimity that without any verdict of competent court of law has given a clean chit by declaring him eligible for the post of Lambardar which being a public office cannot be given in the hands of the person who is involved in criminal cases. There is no cavil with the proposition that generally until and unless an accused is convicted in a criminal case he is presumed to be innocent. However , said analogy cannot be applied in the matters relating to the appointment of Lambardar as registration of criminal cases against a person in the society and that too of moral turpitude, shatter the confidence of the people of the locality . Thus, the appointment of said person would be useless as he would not be able to have commanding influence in the society who help out the revenue authorities in respect of revenue collection and implementation of the government policies.
11. It is well settled by now that while dealing with the question relating to appointment of Lambardar the revenue authorities enjoy prerogative to select a suitable candidate while taking into consideration multifaceted element including the general repute in the area, qualification, holding in the locality and brotherhood. When the revenue officer who finds an opportunity to have direct liaison with all the land owners in the revenue estate came to the conclusion that respondent No.8 was not a suitable person on account of his involvement in multiple criminal cases, his findings cannot lightly be set aside by the Member Board of Revenue specially when the same were up- held by the Additional Commissioner (Consolidation). Reliance in this regard is placed on "M. NAZIR AHMAD v MUHAMMAD ASLAM and others" (2013 SCMR 363 ).
12. As the post of Lambardar has been declared as essentially an administrative measure, therefore, respondent No.8 could not lay any claim to that office as of right. Reference may be made to "MUHAMMAD SHAFI and "MUHAMMAD W ARRA YAM" (supra)
13. Admittedly , respondent No.8 being involved in number of criminal cases is required to appear before different courts on most of the dates, thus, his presence in the revenue estate would not be possible. A person who does not remain in the revenue estate around the clock cannot be appointed as Lambardar as he is considered to be an absentee. The duties being performed by Lambardar being of vital in nature cannot be put off on a future date as it would result into embarrassment for the revenue authorities towards collection of revenue/cess and implementation of their policies, no person who remains out of the estate for most of the days cannot be appointed against the post of Lambardar .
14. It is very strange that the Member Board of Revenue proceeded to reverse the findings of the forums below while relying on his observation made in para 6 of his decision and that too without assigning any reason. At the cost of repetition, it is observed that his verdict to setting aside the decisions of lower forums, does not qualify the test for a reasoned order and the same cannot be allowed to hold the field even for a moment.
15. So far as case law cited at the bar by learned counsel for respondent No.8 is concerned, with due reverence it is stated that the same is distinguishable to the facts and circumstances of the case in hand rather it provide supports to the claim of the petitioner in "ABDUL GHAFOOR" (supra).
16. In view of above facts and circumstances, while allowing this Writ Petition orders passed by the Member Board of Revenue dated 03.04.2013 and 06.08.2014, rendered by respondent No.1 are set aside and those passed by the District Officer (Revenue) Bahawalpur dated 30.12.2010 and Additional Commissioner (Consolidation), Multan Division, Multan, dated 16.08.201 1 are restored.
17. There shall be no order as to costs.