' This judgment shall dispose of W.P. No,767 of 1998 and W.P. No,4550 of 1999 as both of them are directed against order, dated 20-1-1998 22-7-1996 and 26-10-1995 passed by the learned Member, Board of Revenue, Punjab, Lahore, Commissioner, Multan Division, Multan and Deputy Commisisoner/Collector, Vehari respectively.
2. Brief facts of the case are that the post of "Lumberdar" of Chak No,241/EB, Tehsil Burewala, District Vehari fell vacant on the demise 01 Muhammad Younas, Lumberdar. Applications to fill in the vacancy were invited and as many as 14 persons applied for this post. Ultimately the main contestants remained in the field were M/s. Rana Fiaz Ahmad, Mst. Khalida. Adeeba, Shahzad Kareem Fazal Raheem, Mukhtar Ahmad Rana and Amir Din, present petitioner. The case was got processed through the Field Staff and A.C./Collector after hearing all the candidates recommended the petitioner in W.P. No,767 of 1998 (Ameer Din). District Collector, Vehari after going through recommendation and examining himself the merits and demerits of the candidates in detail appointed Amir Din as Lumberdar vide order dated 26-10-1995. Aggrieved by the abovesaid order four appeals were preferred before Commissioner, Multan Division, Multan, who vide order dated 22-7-1996 dismissed all the four appeals and the order passed by the Deputy Commissioner/Collector was upheld. Against order dated 22-7-1996 passed by the Commissioner three Revision Petitions Nos.ROR 1739 of 1996 titled Fazal Raheem v. State (Amir Din), ROR 1744 of 1996 titled Rana Fiaz Ahmad v. State (Amir Din), ROR 1749 of 1996 Muhammad Mukhtar Rana v. State (Amir Din) were preferred before Member, Board of Revenue, Punjab, Lahore and the learned Member, Board of Revenue vide order dated 20-1-1998 while accepting Revision Petition filed by Rana Fiaz Ahmad, appointed him Lumberdar of Chak No,241-EB, Tehsil Burewala and set aside the order of District Collector, Vehari, dated 26-10-1995 and that of Commissioner, Multan, Division Multan dated 11-7-1996. However, the Revision Petitions of Fazal Raheem and Muhammad Mukhtar Waheed Rana were dismissed. Hence these Constitutional petitions.
3. The learned counsel for petitioner in W.P. No,767 of 1998 has contended that the writ petition was admitted to regular hearing on 27-1-1998 and respondent No,2 has not filed any written statement uptill today, meaning thereby the contentions raised in the writ petition stand admitted. It is further contended that the heriditary claim of respondent No,2 was not accepted by the District Collector as well as the Commissioner and the learned M.B.R. Had no fresh material before him to interfere with the findings recorded by two Courts below. It is further contended that respondent No,2 was non-suited on the ground that he had sold his entire property except 1 Kanal and 19 Marlas about which he too had entered into an agreement to sell arid so far as 2-1/4 acres of land is concerned he purchased it on 9-8-1995, whereas the post had fallen vacant on 6-1-1994. Further he never resided in the Chak and had permanently shifted his abode to Lahore. So far as petitioner in W.P.
No,4550 of 1999 is concerned, the learned counsel has contended that he is just a covering candidate and not at all interested seriously. In support of his contention he has drawn my attention to the filing of the writ petition, which was filed on 19-5-1999, whereas the impugned order was passed on 20-1-1998, after a delay of 1-1/4 years, thus the writ petition suffers from lathes, which also shows lack of interest on the part of writ petitioner. The learned counsel further contends that the Rule of primagenitor as enshrined in Rule 19 is directory and not mandatory in nature. He further contended that petitioner Amir Din was rightly appointed Lumberdar by the District Collector as well as the Commissioner and the learned Member, Board of Revenue without any reason or declaring impugned order as perverse had no authority to interfere with the order passed by the Courts below.
4. Conversely, the learned counsel for respondents, Mr. Abdul Sattar Goraya, Advocate, has contended that the respondent being retired Major from Pakistan Army, holding sufficiently influence in the area and also having sufficient property to meet 'Zari Barth' was the fittest person and the learned M.B.R. By appointing him as Lumberdar in place of his deceased father had committed no illegality whatsoever. He has, however, frankly admitted about the absence of the respondent from the Chak, but contended that it makes no difference as the functions of Lumberdar can be performed by appointing 'Sarbrah Lumberdar' and this is no ground for non- suiting the respondent who is otherwise competent to be appointed under the Rule of Primogenitor.
5. Syed Kabeer Mahmood, Advocate, counsel for Muhammad Mukhtar Waheed, petitioner in W.P.
No,4550 of 1999 contended that the petitioner is fittest person to be appointed as Lumberdar. He is a law graduate and holds 42 Kanals of land in the same Patti. He is real nephew of the deceased Lumberdar and permanently residing in the same village.
6. The learned Addl.A.-G. Has supported the order of learned M.B.R. And contended that since the seat of Lumberdar fell vacant due to death of deceased Lumberdar so M.B.R. Has committed no illegality in appointing his son in place of deceased Lumberdar and the seat was to be filled as provided under Rule 9 sub-Rule (2) of the Land Revenue Rules.
7. I have heard the learned counsel for parties at length and have also perused the record. The perusal of orders of District Collector and the Commissioner reveal that the case of petitioners alongwith other candidates were examined in its true perspective. The arguments of the learned counsel that according to the Rule of Primogenitor, the learned Member, Board of Revenue while accepting the Revision of Rana Fiaz Ahmad, respondent No,2 being real son of the deceased.
Lumberdar was rightly appointed as Lumberdar of the village, has no force. The learned District Collector after making detailed inquiry treated this matter under Rule 17 and Rule 18(2), which specifically empowers a Collector that he may also refuse to appoint a person claiming as heir of the deceased Lumberdar on any ground which may necessitate or justify dismissal of that person from the office of headman. So far as Rana Fiaz Ahmad, is concerned his own sister Mst, Khalida Adeeb, who was also one of the contesting candidates for the seat of her father, categorically stated before the Collector that she has better claim against his brother Rana Fiaz Ahmad, respondent No,2 due to the reason that he has migrated from this Chak since long. She also contended before the Collector that Rana Fiaz Ahmad was not at all interested in the appointment as Lumberdar of the Chak because he had disposed of his entire property in the Chak. Khalida Adeeb, however, contested the matter up to the Commissioner, but did not further contest the same as she neither assailed the order of Commissioner before Member, Board of Revenue nor she has filed any petition before this Court. But the fact remains that she has supported the arguments advanced by the learned counsel for petitioner that Rana Fiaz Ahmad is not a fit person to be appointed as Lumberdar. No written statement has been filed by respondent No,2. Rana Fiaz Ahmad, therefore, it can safely be concluded that the factual position as narrated in the writ petition stands admitted. In my view he being an absentee is not a proper person to discharge the duties of the office. Rule 18(2)(c) provides for dismissal of the headman owing to the old age, mental incapacity or absence from the estate. So in case of appointment of Lumberdar, the Collector has been empowered to refuse appointment to a person whose claim is based as being heir on the ground which would justify his dismissal from the said office. This being the position, Rule 18(2)(c) would be legitimately read with rule 19 while making the appointment of Lumberdar.
So in these circumstances, I do not agree with the arguments advanced by the learned counsel for respondent No,2 that the Rule of Primogenitor has been totally discarded by the Collector as well the Commissioner. Perusal of orders of District Collector as well as the Commissioner shows that this being an administrative arrangement for which merits or demerits of the prospective candidates have been considered and the Rule of Primogenitor is not attracted in this case, which is merely a directory and also subject to certain provisions. I am fortified by the judgment of Honble Supreme Court of Pakistan Ghulam Hussain v. Ghulam Muhammad and another (1976 SCM R 75).
Their lordships of Supreme Court have held:-- "The argument of the learned counsel was that the petitioner being near consanguine as compared to the respondent was nearest eligible heir' and as such had a right to be appointed Lumberdar in competition with the respondents. The argument in our opinion is misconceived. On its proper construction far from conferring any right muchless a legal right. The rule at the best is directory which provides guideline fpr choice of successful Lumberdar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligibles under rules. It would be wrong to impart greater efficacy to the above rule. Moreover, fitness cannot be judged by any objective standard; it is primarily a subjective process, in which the opinion of the appointing authority is the crucial factor. Even on general principles, the appointment rests in the discretion of the graded hierarchy of Revenue Officers created by the West Pakistan Land Revenue Act, who because of their experience and training are better qualified to make the choice than the Courts of general jurisdiction. In such cases, the matter is not to be approached as if it were a dispute relating to property or franchise."
' According to section 37 of West Pakistan Land Revenue Act, 1967, Lumberdar is entitled to get remuneration. Section 37 is reproduced herebelow:-- "Village Officer Cess.---(1) The Government, may by Notification, impose on all or any of the States in the Province, a cess to be called the Village Officer's Cess, at such rate or rates, not exceeding five per cent. Of the land revenue, as it may think fit, for remunerating Village Officers, other than those who are Government servants. (2) The Board of Revenue, may with the previous approval of Government, make rules for the collection control and 'distribution of the Village Officer's Cess."
' In AIR 1962 Mysore 233 (N. Balakarishna Hedge, v. K. Shankara Hegde and others) it was held that:- - "In a recent judgment of the Supreme Court of India in Petition No,133 of 1959 (AIR 19761 SC 564)
(Gazula Dasaratha Rama Rao v. State of Andhra Pradesh), the constitutionality of the provisions of the Madras Act 3 of 1895 applying the principle of hereditary succession to the village office was considered. Their lordships held that the office held by Village Officers fell within the meaning of the expression office under the State' occurring in clauses (1) and (2) of the Article 16 of the Constitution and that the application of principles of hereditary sucession in the matter of selecting persons to fill those posts would amount to or involve denial of equality of opportunity to citizens in a matter relating to employment to such office under the State and also discrimination on the ground of descent.
(5) In the light of this clear pronouncement of the Supreme Court, the application of the principles of hereditary succession to this case must be held to be unconstitutional. This case, therefore, will have to be dealt with and decided without reference to the principles of hereditary succession."
' In a recent judgment reported in PLD 1999 SC 484 Hon'ble Judges of Supreme Court have held as under:-- "All these principles laid down by the Holy Qur'an and the Sunnah of the Holy Prophet (s.a.w.) are sufficient to indicate that the appointment to an office of the Government are to he 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 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 are 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 filling 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 be made on merit of a person who is honest, trustworthy, bodily strong and possession 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 (2) of the Rule 19 of the Rules providing for rule of primogeniture as the basis of appointment successor, though interpreted by the Supreme Court as directory rules 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 Injunction of Islam. The objection with regard to provision of hereditary claim amongst other factor 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 consideration 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 heirs of previous Lambardar continuity in the work and in the liaison created between the landowners and the administration is intended to be achieved. Rule 17 is, therefore, not repugnant to any Injunction of Islam."
' The petitioner in W.P. No,767 of 1998, admittedly did not earn any disqualification and on the recommendation made by the Assistant Commissioner and the Deputy Commissioner/District Authority after conducting a thorough inquiry appointed him as Lambardar and this order was upheld by the Commissioner. There was absolutely no material before the learned Member, Board of Revenue to set aside the orders of District Collector and the Commissioner as he was persuaded on the sole ground of Primogeniture and declared the appointment of respondent No,2 Lumberdar of the village. The learned Member, Board of Revenue even did not consider the fact that respondent No,2, Rana Fiaz Ahmad had no sufficient property to meet even Zar-i-Barth' and also that he has permanently shifted from the Chak. No cogent reason whatsoever has been given by the learned Member, Board of Revenue while setting aside the order of the learned Commissioner as well as learned District Collector. The Writ Petition No,767 of 1998 is allowed and the impugned order dated 20-1-1998 passed by the learned Member, Board or Revenue, Punjab, Lahore is set aside and the same is declared as without lawful authority and of no legal effect. Resultantly the order dated 26-10-1995 passed by the learned District Collector and the order dated 22-7-1996 of the learned Commissioner, Multan Division Multan shall hold the field.
' Writ Petition No, 4550 of 1999
8. This writ petition has been filed after a delay of 1 year and four months and no plausible explanation has been given by the petitioner as to why this writ petition has been instituted after such a long time. The petitioner is admittedly an Advocate, he should have been more cautious in pursuing the matter if at all he was interested for this office. On the one hand it shows lack of interest on the part of petitioner while on the other hand, it appears that he is merely a covering candidate of respondent No,2 Rana Fiaz Ahmad. This petition has no merit and the same is dismissed with no order as to costs.