1. ' IFTIKHAR MUHAMMAD CHAUDHARY, J.---Petitioner Haji Jan Muhammad son of Mirza Khan is aggrieved from the orders dated 7-11-1995, 29-5-1997 and 25-10-1997 passed by Collector/Political Agent, Killa Saifullah, Commissioner, Zhob Division at Loralai, Member, Board of Revenue, Balochistan respectively in pursuance whereof respondent No,1 Payo Khan son of Jumma Khan, caste Jogezai was appointed as Headman in Mahal Sharan, Mauza Rodhjogezai in place of his father Juma Khan.
2. ' Precisely stating facts of the case are that initially Juma Khan father of respondent No,1 was Headman of Mahal Sharan, Mauza Rodhjogezai. On his death respondent No,1 submitted an application for his appointment as Headman in place of his father. The application was contested by one Jaffar Khan and Sher Muhammad, but the Political Agent referred the matter to Tehsildar, Killa Saifullah for enquiry. Accordingly detailed enquiry was conducted during course whereof statements of Patidaran were recorded. In pursuance of the enquiry conducted by Tehsildar and report submitted by him Deputy Commissioner accepted the request of respondent No,1 and appointed him as Headman vide order dated 7-11-1995. Petitioner preferred appeal against this order before Commissioner, Zhob Division at Loralai which was allowed on 29-5-1997. It is to be noted at this juncture that during process of enquiry by Tehsildar petitioner did not submit any application nor contested claim of respondent on merits. However, one Haji Nawaz Khan on 10-9- 1995 filed application before Deputy Commissioner/P.A. Objecting on the appointment of respondent No,1 as Headman because he is in Government service being Cooli in Gang Sharan.
3. After passing of the order by the Appellate Court petitioner filed revision in the Court of Senior Member, Board of Revenue, but it was also dismissed vide impugned order dated 25-10-1997. As such instant Constitutional petition has been filed.
4. ' Mr. W.N. Kohli learned advocate appeared on behalf of petitioner; whereas Mr. Amanullah Khan Tareen represented respondent No,
1. Official respondents except Senior M.B.R. Were represented by Mr. Noor Muhammad Achakzai, Additional Advocate-General.
5. ' On behalf of petitioner it is argued that respondent being an employee in the B&R Department cannot be appointed as Headman of Mahal Sharan Jogezai in accordance with the provisions of Headman (Quetta and Kalat Division) Rules, 1962.
6. ' On the other hand counsel for respondent No,1 urged that in the scheme of the rules there is no prohibition for an employee of the Government to hold Office of Headman. Learned counsel also pointed out that there is no direct judgment on the point passed by the superior Courts except few judgments delivered by the Board of Revenue reported in PLD 1957 W.P. (Revenue)
51. From this very volume he also referred two other judgments which were reported at pages 8 and 47.
7. ' We have heard parties counsel at length and also perused relevant record carefully alongwith different provisions of the Rule, 1962. It would be appropriate to examine the rules to find out whether a person who is to be in the employment of the Government is debarred from holding Office of Headman. First of all reference to Rule 3 can be made which deals in respect of number of Headman, its sub-rule (2) provides that the Collector of each District shall determine the number of posts of temporary Headman for each State keeping in view inter alia the area of each State, the land revenue demand, the complexion of communities settled in it and the situation of goats. As far as sub-rule (3) is concerned it speaks that on the expiry of 3 years from determination made under sub-rule (2) or sooner the settlement operations are in progress the Collector shall review the position and determine with the approval of the Commissioner, the number of such posts of Headman in each State as shall be filled in permanently. As far as sub-rule (4) is concerned it provides that the number of posts fixed in accordance with sub-rule (3) shall not be later on increased or reduced except by the order of the Commissioner. So far rule 4 is concerned it confers authority on functionaries of the Government for the purpose of appointment of Headman. This Rule can be bifurcated into two parts. The one which deals in respect of appointment of the Headman on Estate or a considerable portion of the Estate if owned by the Government then the Headman will be appointed from amongst the tenants. Its later portion envisages that in any other Estate only a landowner in the Estate shall be eligible to be appointed as Headman. At this stage it may not be out of place to mention that the case in hand pertains to the later portion of rule 4 because respondent No,1 being owner of the Estate has been substituted for his father as Headman. There is no dispute between parties that respondent is not landowner of the Mahal Sharan Jogezai, therefore, as far as his eligibility is concerned there cannot be any doubt in it. It is also equally important to note that this rule had not disqualified to a person who is a landowner in the Estate but has joined the Government service for the purpose of his appointment as Headman.
8. Careful consideration of this rule establishes that whosoever may be landowner in the Estate, he qualifies for the purpose of appointment as a Headman irrespective to his other status.
9. ' Now turning towards the rule 5 it is to be seen that under sub-rule (1) applications are to be invited for the appointment of Headman temporarily by the Collector within 30 days for fixation of temporary vacancies under sub-rule (2) of rule 3 or on occurrence of casual vacancies in temporary posts. Its sub-rule (2) further provides that applications for the appointment of permanent Headman shall be invited by the Collector in pursuance of sub-rule (3) of rule 3 or on occurrence of casual vacancies in permanent posts. In view of facts of instant case it is to be observed that the posts of Headman applied by respondent No,1 was a permanent post which has fallen vacant on account of the death of his father therefore rule 5, sub-rule (2) will be applicable as far as the instant case is concerned.
10. ' Mr. W.N. Kohli stated that even if it is assumed for the sake of arguments that respondent No,1 was eligible for appointment of Headman still the Collector under sub-rule (3), rule 5 was under obligation to invite applications after giving vide publicity in such a manner as it would have been deemed fit by him. In our opinion this is altogether an independent argument which would be considered subsequently. After having taken into consideration rule 5 we have to fall on rule 7 which lays down the conditions which are to be considered for temporary appointment then we are of the opinion that respondent had applied for permanent appointment against a clear vacancy, therefore, this rule would also not be relevant. As far as rule 8 is concerned it deals with the matters to be considered for permanent appointment. According to this provision when the number, of posts have been finally fixed and the appointment are to be made permanently by the Collector satisfactory performance of duty as a temporary Headman shall be given due weight in addition to the consideration mentioned in rule 7(2). So far the satisfactory performance of respondent No,1 is concerned that would not be a factum for consideration in his favour because his father was discharging function of the Headman and there had no been any complaint of whatsoever nature against him.
11. ' At this juncture it may also be noted that the Collector (Political Agent) under rule 9 enjoys powers to dismiss the Headman if his case covers by any of these provisions. As far as rule 10 is concerned this is the rule which probably would be applicable in its all force on the case of respondent No,1 as it deals with the matters to be considered for appointment of successor. According to its sub-rule
(1) if a State or sub-division thereof owned chiefly or altogether by the Government its successors in the office of Headman shall be selected with due regard to all the considerations other than hereditary claims stated in rules 7 and 8 provided that in such a Estate or sub-division thereof notified by the Board of Revenue the Selection shall as far as be made in the manner prescribed by sub-rule (2) if a suitable heir is forthcoming.
12. ' Now it has equally become important to thoroughly examine sub-rule (2) of rule 10. According to its provisions in other Estates the nearest eligible heir according to the rule of primogeniture shall be appointed unless some special customs to the contrary, of succession to the office be distinctly proved that subject in every case to the provision (i) the claim of collateral relation of the last incumbent to succeed shall not be admitted solely on the ground of inheritance unless the claimant is a descendant in the .Nale line of the maternal grandfather of the land incumbent; (ii) where a Headman has been dismissed in accordance with the provisions of Rule 9 the Collector may refuse to appoint any of his heir if the circumstances of the Office, directions of duty or disqualification for which the Headman was dismissed make it probable that he would be unsuitable for Headman or if there is reason to believe that he has committed any offence or direction or duty for which Headman has been dismissed or if any disqualification for which the Headman has been dismissed attaches to him or if he may reasonably be supposed to be under the influence of the dismissed Headman or family thereof to an undesirable extent or the Collector may also refuse to appoint a person claiming as heir on any ground which would necessitate or justify the dismissal of that person from the Office of the Headman or a female ordinarily is not eligible for the Office, but may be appointed when she is the sole owner of the Estate for which the appointment has to be made or for special reasons in other cases.
13. ' So far sub-rule (3) of rule 10 is concerned it provides that failing the appointment of an heir its successor to the Office shall be appointed in the manner and with regard to the consideration described in rule 7; whereas its sub-rule (4) says that election shall not in any case be resorted to as an aid in making appointment. A close study of this rule provides certain disqualifications for a successor Headman as enumerated by rule 10, sub-rule (2), clauses (a) and (b) and clause (d) are not applicable on the case of respondent No,1. After discussing this rule reference can also be made to rule 12 which lays duties of Headman. However, to answer the proposition under consideration rule 14 is very important which deals with regard to appointment of substitutes for non residents Headman. Before taking into consideration the implications of this rule it is to be observed that there could be a ease where a person has been appointed as Headman, but due to certain reasons he is not capable to reside in the Estate where he has been appointed as Headman like a person who is in the Government job, but has been posted out of the area where he enjoys the Office of Headman, therefore, to deal with such-like situation sub-rule (1) of this rule provides that where as Estate is owned by a non-resident landowner, he may nominate for the Collector approval a substitute to discharge the duties of Headman from amongst the residents in the Estate. If the non-resident owner fails to nominate a fit person the Collector may appoint a substitute from among the resident tenants. As far as sub-rule (2) of this very rule is concerned it lays down that where an Estate owned by more landowners than one non-resident Headman is liable either individually or as representative of other non-resident owners for more than half the land revenue of the Estate is substitute for such Headman may be appointed from among either the resident landowners or tenants. In making such appointment the Collector shall consult the wishes of non-resident Headman. So, safely it can be concluded that if a Headman on account of the exigencies of his service is not in a position to attend his duty he can appoint his substitute with the approval of the Collector concerned.
14. It may also be noted that according to sub-rule (1) of rule 17 in appointing a substitute for a minor Headman the Collector shall select any landowner resident in the village or any resident tenant if the case falls under sub-rule (4) according to which a substitute may be removed at any time by the Collector either on its own motion or accept the case of substitute for a minor Headman at the request of the person for whom the substitute is acting for any reason which would justify the removal of the substantive holder of the Office or for any other reason which the Collector thinks sufficient. Comparative study of Rule 10, sub-rule (2), clause (d) Rule 14, sub-rules (1) and (2) and Rule 17 of sub- rules (1) and (4) categorically provides for the appointment of a female substitution of non-resident Headman as well as substitution of a Headman who is minor, therefore, from these provisions it can safely be held that the Rules of 1962 are exhaustive in their nature. They have laid down ineligibility for a person to be appointed as Headman if he has got his own lands in the Mauza/Mahal where he is seeking his appointment as the Headman. If he is in Government service it would not be a disqualification for him for the purpose of appointment as Headman because if a female minor or a substitute can discharge functions of Headman then why a Government employee cannot act as Headman.
15. ' At this stage reference to an authority relied upon by Mr. Ammanullah Khan Tareen reported in 1972 SCM R 354 (Muhammad Waryam v. MBR, Punjab, Lahore and 3 others), would not be out of context. In this very judgment it was held that it is the direction of the Revenue Authorities and the High Court in exercise of Constitutional jurisdiction cannot interfere in exercise of such jurisdiction.
16. Relevant para. For the sake of convenience is reproduced hereinbelow:-- ' "It was next urged by the learned counsel for the petitioner that the petitioner was a better candidate. Respondent No,4 was a retired Deputy Secretary and he has obtained his appointment by adopting illegal means. The learned counsel was unable to satisfy us that retired Deputy Secretary could not be appointed as Lambardar. The question about the selection of Lambardar is entirely within the discretion of the Revenue Authorities and the High Court was perfectly justified in observing that said order cannot be interfered with under Article 98 of the Constitution."
17. Thus above discussion indeed leads us to conclude that under the scheme of Rules, 1962 there is no prohibition for a Government servant from holding the Office of Lambardar provided he fulfills other requirements of the rules discussed hereinabove.
18. ' As far as objection of Mr. W.N. Kohli learned counsel for petitioner is concerned that no enquiry was conducted by the Collector before appointment of respondent No,1 as Headman in terms of Rule 5, sub-rules (3) and (4) is concerned, that is without substance because on receipts of application from respondent Deputy Commissioner referred the matter to Assistant Commissioner, Killa Saifullah who called for report from Tehsildar vide order dated 3-5-1995. In pursuance of directions of his superior, Tehsildar conducted a detailed enquiry and submitted report recommending for appointment of respondent as Headman. During the process of enquiry good number of Patidarans were examined who supported his claim. As far as petitioner is concerned even otherwise he has no locus standi to agitate against the appointment of respondent because no such grievance was expressed by him before the Deputy Commissioner when the application was filed or before Tehsildar, Killa Saifullah who was conducting enquiry. Thus, for this score as well petitioner has no claim to agitate.
19. ' Before, parting with the judgment we would like to observe that Mr. Amanullah Khan Tareen learned counsel for respondent No,1 made a statement at Bar that Payo Khan present Headman otherwise is going to retire from his service within 4 and 5 months, therefore, even if case in hand is examined from this angle it can safely be held that if at all there is any disqualification for the sake of arguments to hold the Office of Headman by respondent No,1 that would be of temporary nature.
20. As such it is not a fit case to issue writ in the interest of justice because after the period pointed out the learned counsel he would not be in Government job and would be capable to enjoy the Office of Headman on the place of his father late Juma Khan.
21. ' For the foregoing reasons we see no merits in the petition, as such it is dismissed leaving the parties to bear their own costs.