' This Constitutional petition is directed against order, dated 12-4-1993 of the Member (Revenue), Board of Revenue, Lahore, confirming the appointment of respondent No,3 Muhammad Bashir Alam as Lambardar, in exercise of his revisional jurisdiction.
2. Briefly stated that Dost Muhammad Lambardar of village Jal Janubi, Tehsil and District Mianwali died and applications were invited to fill in the vacancy and Muhammad Iqbal and others applied for the appointment in question. Respondent No,3 was also one of the applicants. The D.C./Collector, Mianwali vide his order, dated 12-5-1991 appointed the petitioner, Abdul Karim, as Lambardar but this order was set aside in appeal by the Commissioner, Sargodha Division vide his order, dated 21-7-1991 appointing respondent No,3 as Lambardar in place of the deceased Dost Muhammad. This order was further confirmed by the Member (Revenue), Board of Revenue on 12- 4-1993.
3. Learned Commissioner and Member, Board of Revenue selected respondent No,3 for the appointment as Lambardar mainly on the ground that he was the real brother of deceased Dost Muhammad and according to rule of prim ogenitrue he was entitled to this vacancy. In para. 3 of the order passed by learned Member, Board of Revenue it has been held as under:-- "The observance of rule of primogeniture has been relied and sanctified through numerous decisions of the revenue authorities/High Court and by the Supreme Court of Pakistan and as such it is preposterous to suggest that it can be disregarded while appointing the Lambardar."
' Another factor taken note in favour of respondent was his retirement on 20-6-1992 as a public servant. Order of learned Commissioner accepting the appeal of respondent is also on the same lines as that of the Member, Board of Revenue who extensively dealt with the matter as to which of the persons was to be appointed as Lambardar. An allegation was made against the present respondent as to his involvement in a case under sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and learned Appellate Court in para. 5 of the order dealt with this issue in the following manner:-- "It is conceded that he (respondent) is not the main accused in this case. This sort of allegation is levelled against all the kith and kin of the abductor. Moreover, the lady i.e. Samina Jabeen regarding whose abduction the case was registered, has moved the Family Court wherein she has claimed that she was not abducted and that she was the real wife of the abductor i.e. Muhammad Iqbal. The trial Court is stated to have stayed the proceedings till the decision by the Family Court.
These facts indicate some other story but the fact remains that there is no conviction on record against Muhammad Bashir Alam. In case of conviction, he can always be removed from the post of Lambardar."
' Regarding present petitioner, learned Commissioner observed as under:-- "Incidentally Abdul Karim respondent is also involved in a case under F.I.R. No,215 dated 25-5-1991 with Police Station City Mianwali wherein the allegation is that he has sold the land on the basis of bogus power of attorney."
' Both the tribunals deciding in favour of respondent were of the view that respondent being the real brother of deceased had a preferential right to claim appointment on the basis of his hereditary claim. It is in para.. 4 of the impugned order of Member, Board of Revenue that the matter in hand deals with the succession of deceased Lambardar and will have to be decided under the overriding rule of primogeniture which in its character is mandatory and not discretionary. Since the previous Lambardar died issueless, the respondent being his real brother was nearer in degree as compared to the petitioner. He has therefore, an edge over the petitioner in respect of hereditary claim. I am also of the view that community is to be taken into account and not the sub / castes. There is also no bar against the appointment of Government servant as Lambardar."
4. If compared the initial order of D.C./Collector with that of two orders in favour of respondent it is manifestly clear that the former has not dealt with the matter in accordance with Rule 19 governing the facts of present case. It is for this reason that learned Commissioner in para. 3 of his order observed that "it has been held that the appointment to the office caused vacant due to the death of Lambardar is to be made according to the rule of primogeniture. Such appointment cannot be thrown open unless no eligible heir was available". The D.C./Collector failed to state any cogent reason eliminating the respondent and based his decision on community basis which too has been clarified by the Member, Board of Revenue as noted above.
5. Learned counsel for petitioner has relied upon Chaudhari Mashir All v. Malik Chiragh Khan 1918 P L R 405, Bakhshish Singh v. Tara Singh PLD 1950 Punj. (Rev.) 1247, Fateh Khan v. Muhammad Iqbal PLD 1964 W.P. (Rev.) 20, Malik Abdus Sattar v. Abdul Ghafoor PLD 1964 W.P. (Rev.) 26 and Nazir Ahmad v.
Roshan Din 1987 MLD 2269 and Fateh Khan v. Muhammad Iqbal PLD 1964 (Rev.) 19 to contend that petitioner gets preference over the respondent and, therefore, orders of Commissioner and that of the Member, Board of Revenue may be set aside.
6. I find that there is no force in the contention of learned counsel. The matter has been finally decided in Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P., Peshawar PLD 1991 SC 531 where the appointment of Lambardar could only be interfered if there was any jurisdictional error. In the precedent case the Member, Board of Revenue dealt with the appointment of Lambardar under Rule 17 instead of 19(2-B) of the Land Revenue Rules and the case was remanded. It was ruled that the selection of the Lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex.
7. I have gone through all the orders of the lower tribunals and find no legal infirmity or jurisdictional error appointing the respondent as Lambardar of the village in question. Resultantly, there is no merit in the writ petition which is dismissed in limine. C.M. No,1002 of 1993 for stay is also dismissed.