SULTAN TANVIR AHMAD, J. Through this single judgment, the present intra court appeal, filed under section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), as well as Constitutional petitions bearing numbers 113252/2017, 68206/2021, 40709/2016, 7261/2016, 90/2015, 655/2015, 24480/2014, 22206/2010, 22737/2013, 27720/2012, 29720/2021, 17040/2021, 55981/2020, 51246/2020, 31915/2019, 222564/2018, 24010/2016, 1330/2017 & 58117/2021, having common questions of law, shall be decided.
2. The facts of the above cases, for the purpose of the present decision, are almost similar therefore, we would just like to discuss the facts of the intra court appeal No.71340 of 2021, which in brief are that appellant filed application dated 23.08.2016 for appointment as headman of village number 101/9-L, tehsil and district Sahiwal. Respondents Nos.4 & 5 also filed their respective applications for the said appointment. On receipt of the proposal regarding the appointment of headman from the tehsildar, the collector concerned, after holding ijlas-e-aam in the revenue estate on 17.09.2021, submitted his report and recommendation, concerning each item under sub rule 1 of rule number 17 of the Land Revenue Rules, 1968 (hereinafter called as the "Rules"), to the District Collector, Sahiwal. On the basis of the credentials and eligibility criteria for the appointment as village headman, vide report dated 02.10.2021, the Collector, Tehsil & District Sahiwal granted 54 marks to respondent No.4, 41 marks to the petitioner and 20 marks to respondent No.5.
3. The marks obtained by respondent No. 4 included 15 marks of his hereditary claim being second blood in terms of rule 17(1)(a) of the Rules. The grant of marks to respondent No. 4 for hereditary claim became cause to file Constitution Petition No. 64269/2021, with the following prayer: - "It is prayed that the impugned notification dated 20.04.2010 to the extent of hereditary claim under amended rule 17(1)(a) and rule 19(2) may very graciously be declared illegal, unlawful, void ab-initio, ultra-vires to the injunctions of Islam and the Constitution and criteria laid down by the superior Courts.
It is further prayed that respondent No.2, 3 may be directed to decide the applications for the appointment of Lambardar while ignoring the impugned notification and according to criteria laid down in the judgment of Hon'ble Supreme Court (PLD 1999 SC 584) and Hon'ble Lahore High Court (2003 YLR 1960 Lah)."
The learned single judge of this Court dismissed aforesaid petition vide order dated 15.10.2021.
Aggrieved from the same, the present intra court appeal has been filed.
4. Learned counsel for the appellant and petitioners in connected petitions (hereinafter collectively called as the "petitioners") have argued that in case titled "Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan" (PLD 1999 SC 484) the Honourable Supreme Court of Pakistan has already declared rules 19(2), 25, 26 of the Rules as repugnant to the Holy Quran and Sunnah; that the impugned rules preserve the principle of primogeniture, which has already been declared un- Islamic; that the posts for village headmen are required to be filled, ignoring the hereditary claims, purely on the basis of educational qualifications of the candidates, their physical and mental fitness, trustworthiness and other qualities for forming a good headman. Learned counsel for the petitioners has contended that in case titled "Muhammad Younus v. The Member (Judicial I), Board of Revenue, Punjab, Lahore and others" (1994 MLD 1480), this Court has declared that the hereditary claims for appointment in government offices are completely against Quranic injunctions, which is being ignored by the functionaries of the Board of Revenue while filling the posts of village headmen; that the concerned Collectors are granting the marks on the basis of hereditary claims, hence, the same is against the spirit of law laid down by Honourable Supreme Court of Pakistan as well as by this Court. Learned counsel for the petitioners have added that as per section 36 of the Land Revenue Act, 1967 (hereinafter called as the "Act"), the power of Board of Revenue is subject to obtaining prior sanctions from the government, but no such sanction was obtained. It is further submitted that learned Single Judge of this Court has failed to consider that the impugned rules are beyond the provision of the Act and violative of very object as well as the reasons of enactment; that the impugned rules, even otherwise, are liable to struck down being unreasonable.
5. Conversely, learned Law Officer(s) and learned counsel for the respondents have submitted that there is no contradiction between the impugned rules and Act; that the impugned rules have been framed under the authority of law, therefore, partake character of law, thus cannot be lightly declared ultra vires to the Constitution or the relevant Statute, in the given circumstances of the case. It is added by the learned counsel for the respondents that the hereditary claim is just one of the relevant factor as per rule 17 of the Rules; the person having hereditary claim is also required to prove other merits as envisaged in the rule 17, which gives fair chance to other contestants as well as opportunity to the authorities to appoint most eligible person as village headman. During the course of arguments, learned counsel for the respondents have relied upon the cases titled "M.
Nazir Ahmad v. Muhammad Aslam and others" (2013 SCMR 363), "Subedar (Rtd.) Muhammad Ali v. Muhammad Anwar and 3 others" (1985 CLC 668), "Nazir Ahmad v. Nazir Ahmad and another" (2010 MLD 176), "Rana Khalil Ahmad v. Member (Judicial-II), Board of Revenue, Lahore and others" (PLD 2013 Lahore 23), "Muhammad Saleem v. Member (Judicial-V) Board of Revenue, Punjab Lahore and others" (2007 MLD 349) and "Muhammad Hanif v. Muhammad Ali and 3 others" (PLJ 2015 Lahore 222).
6. We have heard the arguments and perused the record with the able assistance of learned counsel for the parties.
7. Since the petitioners have, primarily, assailed the vires of the rules, as amended through Notification No. 881-2010/397-LR-II dated 20.04.2010 (hereinafter called as the "Notification"), being contrary to the Act and Maqbool Ahmad Qureshi case(supra), therefore, in order to properly appreciate the contentions of the parties, it is appropriate to start with the challenged parts of the concerned rules. The relevant rules read as follows: -
17. Matters to be considered in the first appointment.
(1) in the first appointment of a headman (Lambardar), following matters shall be considered and the maximum marks to be assigned against each item are as under.
(a)Hereditary claim of the candidateMaximum Marks 30 (i) First blood 30 Marks (ii)Second blood 15 Marks (b)Candidate's community in the estate or sub- division of the estate for which appointment is to be made.Maximum Marks 30 (i) Overwhelming majority 30 Marks (ii)Second largest majority 15 Marks (c)Extent of property of the candidate in the estate or sub-division of the estate, for which appointment is to be madeMaximum Marks 10 (i) Five acres or more 10 Marks (ii)Less than five acres 05 Marks (d)Educational qualifications of the candidateMaximum Marks 10 (i) Secondary School Certificate, Equivalent or above 10 Marks (ii)Literate i.e. able( to read and write Urdu 05 Marks (e)Personal character, ability and influence of the candidate and his freedom from indebtednessMaximum Marks 10 (f)Quality of framing of the candidate in the revenue estateMaximum Marks 10
(2) On receipt of a proposal regarding the appointment of a headman from the Tehsildar, the Collector shall hold "ljlas-e-Aam", in the Revenue Estate and submit to the District Collector his report and recommendations concerning each item under sub rule (1) and the marks awarded to each candidate.
(3) On receipt of a report and recommendations of the Collector, the District Collector shall give an opportunity of hearing to all the candidates, give his own findings on the report and recommendations of the Collector and pass orders regarding selection of the candidate keeping in view the marks obtained by each candidate according to the criteria laid down in sub-rule (1).
19. Matters to be considered in appointment of successor.
(1) xxx.
(2) In other estates, the successor to the office of headman shall be selected with due regard to all the considerations mentioned in rule17.
(3) xxx.
8. Prior to the amendments, made through the Notification, the following matters were required to be considered, for the first appointment of headman, in an estate: -
(a) The hereditary claims of the candidate;
(b) Extent of property in the estate, if there are no sub-division 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 by his family;
(d) His personal influence, character, ability and freedom from indebtedness; headman is to be made;
(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.
9. A reading of the above reproduced rules and the comparison of the same, before and after the amendment, reflect that most of the matters to be considered for appointment as village headman, besides the variations noted hereafter, are nearly same. Hereditary claim(s), ownership of property in estate, personal ability, character, influence, freedom from indebtedness and importance in community of the estate etc. are the common factors, required to be considered for such appointments, prior to the amendment and after the amendment introduced through the Notification. Service rendered to the Government and ability to undergo the training of civil defence have been omitted, whereas, importance is given to educational qualification and qualities of forming a headman of an estate, by adding them as factors of consideration in appointments of village headmen. As a matter of fact, the Notification has introduced the instructions and factors in much structured method besides allocating maximum marks to each factor.
10. It appears that the rule makers have attempted to curtail the discretion of the collectors / authorities, concerned. The marks have been allocated to specific characteristics and / or abilities of the candidates on the basis of their education, character, influence, freedom from indebtedness, popularity in community and other qualifications including hereditary claim. Seventy (70) percent maximum marks have been allocated to personal abilities, discussed above, while thirty (30) percent maximum marks are allocated to hereditary claim. The criteria of allocation of maximum marks, apparently, is added to curb any possibility of favoritism or conferring undue advantage on any one due to his influence. We have not noticed any unreasonableness, as argued before us, in the rules assailed.
11. Now coming to the arguments and prayer of the petitioners as to any illegality or bad faith behind rule 17 ibid as well as that the same being repugnant to the provisions of Act are not sustainable. It is settled law when the Court is required to determine the legality of delegated legislation, the same can only be declared ultra vires or illegal if they are found repugnant to Act, violative of the object and reasons of the enactment or lack of sanction etc. In case titled "Khawaja Ahmad Hassaan versus Government of Punjab and others" (PLD 2004 Supreme Court 694), the Honourable Supreme Court of Pakistan, while discussing parameters and scope of delegated legislation, has clearly observed that where the legislative policy is enunciated with sufficient clearness and standards are laid down, the Courts should avoid to intervene. It will be beneficial to reproduce paragraph No.38 of Khawaja Ahmad Hassaan case (Supra):- Where a Court is required to determine whether a piece of delegated legislation is bad on the ground of arbitrary and excessive delegation, the Court must bear in mind the following well- settled principles: - (1). The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and this cannot be delegated by the Legislature.
(2) The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act.
(3) Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere.
(4) What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of a particular Act with which the Court has to deal, including its Preamble.
(5) The nature of the body to which delegation is made is also a guidance in the matter of delegation. (5) What form the guidance should take, will depend upon the circumstances of each statute under consideration, and cannot be stated in general terms. In some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary.
"Organ on (India), Ltd. V. Collector of Excise, Mandsaur 1977 MPLJ 118-b(DB)."
(Emphasis supplied)
Furthermore, in case titled "Commissioner Inland Revenue, Lahore versus Coca Cola Pakistan Limited, Lahore" (2022 PTD 1400), the learned Division Bench of this Court has already observed that delegated legislation can only be struck down if it is found repugnant to general provisions of statute.
12. The legislature, in section 36 of the Act, has permitted the Board of Revenue to regulate the appointment of village officers / headmen, of the relevant estates, in the following manners: - "36. Rules regulating appointment, etc. of Village Officers.
The Board of Revenue may, with the previous approval of Government, make rules to regulate the appointments, duties, emoluments, punishment, suspension and removal of Village Officers."
13. The lawmaker has empowered the Board of Revenue to make rules to regulate the appointments and other affairs mentioned in section 36 of the Act. The only condition imposed by the legislature, on the Board of Revenue, is obtaining prior approval by the Government. The learned Law Officer has submitted that Notification was passed after prior sanction of the Government, which even otherwise is confirmed from the bare reading of the Notification that the same is passed and issued, with prior approval of the Government and after previous publication vide notification No.3724-2009/1436-LR-II dated 04.11.2009. Though the petitioners have vaguely adopted the stance of failure to obtain prior sanction from the Government but remain unsuccessful to bring anything on record. The stance as to the amendment, without sanction, has no substance.
14. There are no two views about the fact that appointment of a person in the office of village headman is purely an administrative arrangement, having object to create a link between villagers and local authority and the Board of Revenue or its officer being specialized in the matter and well conversant with the requirements, are in better position to make suitable arrangements and / or to select persons to serve the purposes of this administrative link. In this regard, reference can be made to the cases titled "Abdul Ghafoor versus The Member (Revenue) Board of Revenue and another" (1982 SCMR 202) "Ghulam Qadir Khan and 12 others versus The Multan Central Co- operative Bank Ltd." (1986 SCMR 1386) and "Muhammad Warrayam versus Member, Board of Revenue, Punjab, Lahore and 3 others" (1972 SCMR 354).
15. The Board of Revenue has, perceptibly, enunciated the legislative policy with clarity and in structured manner by laying down the clear standards. Marks are allocated to every qualification and factor, essentially curtailing discretionary powers of the individual officers and to avoid causing discrimination by them. The delegated powers have also been exercised while remaining within the statutory framework. We have not observed lack of sanction, unreasonable or any bad faith, excess of delegated powers or any contradiction between the rule assailed and the Act or violation of the object and reasons of the enactment, which can be made basis to intervene in the Constitutional jurisdiction. The Board of Revenue has framed the impugned rules, undeniably, that falls in its domain and this power is conferred upon the Board by the Legislature. The Constitution of the Country protects the principle of trichotomy of powers where legislature has the responsibility of making laws, the executive with its enforcement and judiciary of interpreting the laws. The intervention by the Court, as sought by the petitioners, in the circumstances of the present case when the impugned rules have been framed by the Board while remaining within the parameters of the statute, shall also be akin to assuming the role of a policy maker, which has already been circumscribed by the Honourable Supreme Court of Pakistan in case titled "Executive District Officer (Revenue), District Khushab at Jauharabad and others versus Ijaz Hussain and another"
(2011 SCMR 1864). Here, it will be appropriate and beneficial to reproduce paragraph No.15 of the said judgment, which is as under:- "15. The framing of the recruitment policy and the rules thereunder, admittedly, fall in the executive domain. The Constitution of Islamic Republic of Pakistan is based on the well known principle of trichotomy of powers where legislature is vested with the function of law making, the executive with its enforcement and judiciary of interpreting the law. The Court can neither assume the role of a policy maker or that of a law maker. To the said extent the impugned judgment is not sustainable. Consequently, this appeal is allowed and the impugned judgment is set aside."
16. The next contention of the learned counsel of the petitioners is that rule 17(1) ibid, to the extent of hereditary claim, is repugnant to the law settled by the Honourable Supreme Court of Pakistan, while hearing Shariat Appeals in case titled "Maqbool Ahmad Qureshi case (supra). It appears that this argument is based on misconstruction of the judgment in "Maqbool Ahmad Qureshi' case (supra). It has been observed by the Honourable Supreme Court of Pakistan that if hereditary claim is taken as one of the relevant factor in favour of the candidate whose merits otherwise are favourable comparing with other contestants, no grievance can arise which rather will meet the plea of administration. It will be advantageous to reproduce the relevant extract from the "Maqbool Ahmad Qureshi' case (supra):- "...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 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 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..."
(Underlining is added)
17. We have already analyzed provision of rule 17 of the Rules, after amendment and prior to the promulgation of the Notification which has been held by the Honourable Supreme Court of Pakistan as not repugnant to injunctions of Islam. The considering factors are almost same, besides the changes mentioned above. As a matter of fact, the weightage to the hereditary claims has been capped by allocating maximum marks in order to avoid giving unjustified or overwhelming importance to such hereditary claims. Therefore, the argument that rule 17(1) ibid is repugnant to "Maqbool Ahmad Qureshi case (supra) is rejected being result of misconstruction of said judgment of the Honourable Supreme Court.
18. One of the questions raised before us is as to whether the marks assigned to hereditary claims, 30 marks to first blood and 15 marks to second blood, are mandatory in the sense that if a person falls within the category of rule 17(1)(a) of the Rules, the concerned official has to mandatorily grant the maximum allocated marks or if the collector still, in certain instances, has the power of withholding the grant of the maximum marks provided in column 3 of the rule 17(1)(a)? Example setup before us is that if a person having some mental or physical handicap, disability or being fugitive of law or due to some other compelling reasons is totally incapable to serve as a link between villagers or landowners and the authorities, but he has hereditary claim (30 marks) and in addition to the same he also has claim of 10 marks that is allocated to property rights in the village will have total 40 marks; can he still be appointed as headman of the village, if there is no other person who can exceed 40 marks on the basis of other claims (i.e. out of the remaining 70% maximum marks)? Learned Law Officer has contended that word shall in sub-rule 1 of rule 17 ibid, is indicative of the fact that grant of maximum marks is mandatory in nature. The sub-rule 1 of rule 17 ibid, provides that "in the first appointment of headman, following matters shall be considered and the maximum marks to be assigned against each item are as under...".
The reading of the sub-rule reflects that the word "shall", used in the first part of the sentence, makes it incumbent upon the authorities to ensure considering the factors given thereunder. Thus, considering all the factors are mandatory requirement of law. However, in later part of the sentence the rule-makers have elected the word "maximum". The word "maximum" has simple meaning that is the greatest quantity or highest point(s). The use of word "maximum , by the rule- makers, in this part of rule 17(1) as well as in the third column contained thereafter leads to clear inference that in circumstances above (in the situation delineated by the learned counsel for the petitioners), the authority can still withhold the grant of highest allocated marks to the hereditary claim, otherwise, the object to choose a person to serve as a link between authorities and villagers is likely to be defeated. Though the circumstances of the above given example can arise rarely in practice but when faced with such circumstances the absurd result can be avoided by not allocating the highest marks to the hereditary claim, in view of the settled principle of construction that the Courts should avoid any interpretation of an enactment or rules that flouts common sense and results into absurdity and the Court should always give effect to the same by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice.
Reliance can be placed on the case titled "Maryon-Wilson's Will Trusts, Blofield v. ST. Hill" 1966 M. No.4666 (1968 Ch. 268). Reference can also be made to the cases titled "Ghulam Hussain versus Ghulam Muhammad and another" (1976 SCMR 75) and "Muhammad Afzal versus Member (Revenue), Board of Revenue, Punjab, Lahore and 3 others" (1992 MLD 1418). In Muhammad Afzal case (supra) a fugitive of law, despite having hereditary claim being the eldest son, was declined to be appointed as a headman.
19. We also disagree with the learned counsel for the petitioner as to their stance that someone can have any vested right to the appointment in the office of village headman. It is already discussed that the very purpose of legislature, while delegating the powers in section 36 of the Act to make rules vis-a-vis appointment of village headman, is to create a link for the discharge of duties by the revenue authorities and not to create any vested rights amongst Citizens or villagers to be appointed as a headman, and such appointment is essentially an administrative function, which vests exclusively in the domain of the revenue authorities, who by virtue of experience and training are in the better position to make suitable choice than the Courts having general jurisdiction.
Reference in this regard can be made to cases titled "Abdul Wahid versus The Member, Board of Revenue, Punjab, Lahore and another" (1971 SCMR 719), "Muhammad Yousaf versus Member, Board of Revenue and 4 others" (1996 SCMR 1581) and "Muhammad Shaffi versus Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others" (1972 SCMR 253). It will be advantageous to reproduce the following paragraph from the case titled "Muhammad Shaffi" case (supra): - "This Court in the case of Abdul Wahid v. The Member, Board of Revenue, Punjab and another (1) has taken the view that the office of a Lambardar was essentially an administrative measure and no claim to that office could be laid as of right."
(Emphasis supplied)
20. For what has been discussed above, we are of the considered view that the impugned order passed by the learned single Judge of this Court is based on correct interpretation of law and the same does not require any interference. Consequently, the present appeal as well as all the connected petitions are dismissed. No order as to costs.