Mahavir Singh Vs.
Khiali Ram & Ors.  INSC 2147 (12 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7252 OF 2008 [Arising
out of SLP (Civil) No. 664 of 2007] Mahavir Singh ...Appellant Versus Khiali
Ram & Ors. ...
S.B. SINHA, J :
of a Lambardar, who is a Village Headman and is inter alia engaged in the job
of collection of revenue on commission basis, is governed by the provisions of
the Punjab Land Revenue Act, 1887; Section 28 whereof reads as under:
respecting Kanungos and village officers - (1) The State Government may make
rules to regulate the appointments, duties, emoluments, punishment, suspension
and removal of kanungos and village officers."
to or in furtherance of the said rule making power, the State of Punjab framed
the Punjab Land Revenue Rules (for short "the Rules").
appointment in the post of Lambardar is laid down in Rule 15 and that of his
discharge is laid down in Rule 16 thereof. Rule 15 enumerates the factors which
are required to be taken into consideration for the purpose of appointment in
the said post being:
(b) the property in
the estate possessed by the candidate to secure the recovery of land-revenue;
(c) services rendered
to the State by himself or by his family;
(d) his personal
influence, character, ability and freedom from indebtedness;"
District Collector of Hisar undertook the process of appointment of Lambardar
for the Village Thurana in his District in terms of the said Rules.
six persons had applied for the said post. However, Appellant and Respondent
No. 1 as also one Ram Kumar were found fit to be considered for appointment to
the said post. Upon consideration of the respective merit of the said
candidates and in particular that of the appellant and the respondent No. 1
herein, appellant was appointed being a more meritorious candidate than others,
"...He is of 36
years of age having good personality and he has work experience of Namberdari.
For the purpose of security of the Govt. money, he has 8 kanals 18 marlas
agricultural land and plot which is sufficient for the purpose of security. He
has good credibility in the village. The respectable of the village also want
to appoint him as Namberdar. He actively participated in the collective work of
the village and help the Govt. Officials at the time of visit.
The Naib Tehsildar
and Tehsildar, Hansi have also recommended the name of Sh. Mahavir Singh for
the appointment on the post of Namberdar..."
arriving at the aforementioned findings, the factors relevant therefor, viz.,
the educational qualification, age, experience in work of Lambardari, relation
in village and character, land and property, illegal possession and dues, etc.
had been taken into consideration.
No. 1 filed a writ petition thereagainst before the Punjab and Haryana High
Court, Chandigarh which was marked as Civil Writ Petition No. 5582 of 2006. By
reason of the impugned judgment and order dated 9.11.2006, a Division Bench of
the said Court inter alia opining that the respondent No. 1 herein was a more
meritorious candidate, reversed the said decision of the District Collector
holding that Respondent No. 1 was also a graduate having work experience of 15
years in the Armed Forces and character certificate having been issued in his
favour by the Head Master of Government Girls Primary School and the Sarpanch
of Village Thurana and moreover having served in the Armed Forces that he was a
dedicated and disciplined person and enjoys a good reputation.
the High Court a contention was raised by the appellant that the respondent No.
1 was guilty of encroachment of land wherefor he was being proceeded against
under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 in
respect whereof, the following comments were made:
suffice to say that these proceedings appear to be motivated, having been filed
after initiation of procedure for appointment to the post of Lambardar..."
5 The appointment of
the appellant, on the said findings, was directed to be set aside by the High
does not have better claim on account of inheritance as the office of Lambardar
is not a hereditary office. It appears that the competent authority has totally
ignored the comparative merits of the petitioner as well as respondent No.4. As
per the qualification the petitioner has certainly an edge over respondent
No.4. No doubt, the choice of the competent authority in the appointment of
Lambardar should not ordinarily be interfered with, but from the facts of the
present case, it is quite evident that the authorities have totally ignored the
merits of one of the candidates, therefore, interference is necessitated.
In view of the above,
we find that the petitioner would be the best suitable candidate for the post
of Lambardar as he has experience of being the member of disciplined force and
is more meritorious. Accordingly, the present writ petition is allowed and it
is directed that the petitioner be appointed as Lambardar of Village
S.B. Sanyal, learned senior counsel appearing on behalf of appellant, in
support of this appeal, would submit:
6 (i) As the father
of the appellant was a Lambardar and he had been helping him in carrying out
his functions in that capacity, he had experience.
(ii) Appellant being younger
in age than respondent No. 1, he was a better candidate.
(iii) Appellant is a
graduate of a University, whereas respondent No. 1 was merely a deemed graduate
for the purpose of Class `C' post having served the Army for a period of
(iv) Respondent No. 1
having been convicted for unauthorisedly occupying the land of Gram Panchayat
Thurana under Section 7 of the Punjab Village Common Lands (Regulation) Act,
1961, he could not have been appointed in the post of the Lambardar.
(v) The High Court
committed a serious error insofar as it, in exercise of its writ jurisdiction
under Article 226 of the Constitution of India, entered into the merit of the
respective candidates, which is beyond its domain.
V.C. Mahajan, learned senior counsel appearing on behalf of respondent No. 1,
7 (i) The relevant
factors as laid down under the Rules having not been complied with by the
District Collector, the High Court in exercise of its writ jurisdiction could
have interfered therewith.
(ii) A finding of
fact arrived at by a statutory authority, if perverse, is liable to be
interfered with by the High Court in exercise of its jurisdiction under Article
226 of the Constitution of India.
(iii) In any event,
the respondent No. 1 being a retired military personnel, the equity also lies
in his favour.
(iv) The fact that
the respondent No. 1 has been convicted for commission of an offence under
Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, having
been raised for the first time before the High Court, no cognizance thereof
should be taken by this Court.
is defined in Advanced Law Lexicon, 3rd edition 2005, page 2616 as a `headman
of a village or of a patti or section of a village'. It is furthermore stated:
cultivator who either on his own account, or as the representative of other
members of the village, pays the government dues and is registered in the
Collector's roll according to his 8 number: as the representative of the rest
he may hold the office by descent or by election..."
the post of Lambardar is governed by the provisions of the Punjab Land Revenue
Act and the Rules framed thereunder, holder of the said post is not a
government servant. He does not hold a civil post within the meaning of Article
309 of the Constitution of India. He although is paid a sum of Rs. 500/- as a
fixed sum but his main income is the amount of commission which he receives out
of the amount of revenue collected.
Apart from collection
of revenue, he has other functions to perform including rendition of assistance
to an investigating officer when a crime is committed in a village.
District Collector is the appointing authority. He considered the respective
merits of the candidates in great details. As indicated hereinbefore, the
factor that the appellant is son of a deceased Lambardar and he used to help
him in the work of `Lambdari' during his life time was taken into
9 Candidature of Ram
Kumar was not taken into consideration being a matriculate. The Collector took
into consideration the fact that the respondent No. 1 is also a graduate
keeping in view the services rendered by him in the Armed Forces. As regards
age, he found the appellant to be more suitable being 36 years whereas the respondent
No. 1 was aged 62 years at the relevant time.
As regards experience
of the work of Lambardari, he found that the appellant was more experienced in
the work of Lambardari. It was, however, noticed that the respondent No. 1 is a
retired official from the Indian Armed Force and he has served the nation for
28 years and as such good experience in the military works.
So far as character
of the respective candidates is concerned, all were found to have been
possessing good character. Similar opinion was expressed in respect of land and
The Collector drew
his conclusion, as noticed hereinbefore, upon taking into consideration the
aforementioned factors which were all relevant for the purpose of recruitment
to the post of `Lambardar'. The High Court 10 in its impugned judgment did not
enter into the question as to whether the said findings of the Collector were
right or wrong. It did not also take into consideration the nature of
jurisdiction the High Court exercises under Article 226 of the Constitution of
India in such matters.
is now a well-settled principle of law, keeping in view the decisions in regard
to the appointment of Lambardar in the State of Punjab, that age of a candidate
is a relevant factor.
In Lt. Malik Abbas
Khan v. Ghulam Haidar [1940 Lahore Law Times 25], it was stated:
certainly not wise, save in very exceptional circumstances, to appoint for the
first time, an inamkhor or zaildar whose age is 60 or more."
In Kalyan Singh v.
Haidar [1928 Lahore Law Times 33], the Financial Commissioner held that
ordinarily the Collector's choice appointing a Zaildar or Sufedpost should not
be interfered with even though the appellate authority believes that his choice
was not the best choice.
11 Similar view was
expressed in Lila Ram v. Asa Ram [1955 Lahore Law Times 29] in the following
"...While it is
now an established principle that there should be no interference with the
choice made by the Collector, it does not follow that where the Collector's
order is based on a misrepresentation of facts, there should still be no
In Jai Dayal v. Mohar
Singh [1962 P.L.J. 64], it was held that even a panch or sarpanch can carry out
the job of both the offices together, stating:
from which the issue may be considered is to see whether a Lambardar is
eligible for election as a Panch or Sarpanch.
Section 6(5) of the
Gram Panchayat Act, 1952, enumerates the conditions which should be fulfilled
before a person is entitled to stand for election as, or continue, to be a
Sarpanch or Panch. The only relevant provisions of this section are that a
person, who is not qualified to be elected as a member of the Legislative
Assembly or is a whole-time salaried servant of any Local Authority or State or
the Union of India, shall not be entitled to stand for election as a Sarpanch or
Panch. It is clearly laid down in section 2 of Punjab Act No.7 of 1952 that a
person shall not be disqualified for being a member of the Punjab State
Legislature by reason only of the fact that he is a Lambardar. Further, while
it may be true to say that a Lambardar holds a civil post under the 12 State,
it cannot be said that he is a whole-time salaried servant of the State."
in view the aforementioned backdrop, the correctness of the judgment of the
High Court may have to be considered.
High Court while exercising its jurisdiction under Article 226 of the
Constitution of India is basically concerned with the correctness of the
decision making process and not the merit of the decision. It has not been
found by the High Court that Collector in expressing his opinion as regards
comparative merit of appellant vis-`-vis respondent No. 1 committed an error in
his decision making process. The principles of natural justice have been
complied with. Procedure laid down in the Rules had also been complied with. It
is also not correct to say, as has been contended by Mr. Mahajan that the
Collector had not taken into consideration the services rendered by the
respondent No. 1 to the State. He did acknowledge that the respondent No. 1 had
rendered the services to the State as a member of the Armed Forces. The
Collector also took into consideration that the views of the respectables of
the village were in favour of appellant as also the fact that he had
participated in the collection work of the village and helped the 13
government officials at the time of their visit. He furthermore took into
consideration the fact that the Naib Tehsildar, Hansi had also recommended his
name. Even the Circle Revenue Officer had recommended therefor.
is, therefore, not a case where the finding of the Collector can be said to be
perverse. It has also not been established that the said statutory authority
while taking a decision failed to take into consideration the relevant factors
or based its decision on extraneous considerations or on irrelevant factors not
In Dalpat Abasaheb
Solunke v. B.S. Mahajan [(1990) 1 SCC 305], this Court held:
"12. It will
thus appear that apart from the fact that the High Court has rolled the cases
of the two appointees in one, though their appointments are not assailable on
the same grounds, the court has also found it necessary to sit in appeal over
the decision of the Selection Committee and to embark upon deciding the
relative merits of the candidates. It is needless to emphasise that it is not
the function of the court to hear appeals over the decisions of the Selection
Committees and to scrutinize the relative merits of the candidates.
Whether a candidate
is fit for a particular post or not has to be decided by the duly constituted
Selection Committee which has the expertise on the subject. The court has no
such expertise. The decision of the Selection Committee can be 14 interfered
with only on limited grounds, such as illegality or patent material
irregularity in the constitution of the Committee or its procedure vitiating
the selection, or proved mala fides affecting the selection etc. It is not
disputed that in the present case the University had constituted the Committee
in due compliance with the relevant statutes. The Committee consisted of
experts and it selected the candidates after going through all the relevant
material before it. In sitting in appeal over the selection so made and in
setting it aside on the ground of the so called comparative merits of the candidates
as assessed by the court, the High Court went wrong and exceeded its
In H.B. Gandhi,
Excise and Taxation Officer-cum-Assessing Authority, Karnal and Others v. M/s.
Gopi Nath & Sons and Others [1992 Supp (1) SCC 312], this Court held:
"8. But here
what was assailed was the correctness of findings as if before an appellate
forum. Judicial review, it is trite, is not directed against the decision but
is confined to the decision making process. Judicial review cannot extend to
the examination of the correctness or reasonableness of a decision as a matter
The purpose of
judicial review is to ensure that the individual receives fair treatment and
not to ensure that the authority after according fair treatment reaches, on a
matter which it is authorised by law to decide, a conclusion which is correct
in the eyes of the Court. Judicial review is not an appeal from a decision but
a review of the manner in which the decision is made. It will be erroneous to
think that the Court sits in judgment not only on the 15 correctness of the
decision making process but also on the correctness of the decision
In State of U.P. v.
Committee of Management of S.K.M. Inter College [1995 Supp (2) SCC 535], this
"10. It is
settled law that the High Court exercising the power under Article 226 of the
Constitution is not like an appellate authority to consider the dispute. It has
to see whether the impugned order is based on records or whether the
authorities have applied their own mind to the relevant facts. It is seen that
clauses (v) and (vi) of sub-section (3) of Section 16-D specifically enumerate
the grounds which clearly applied to the facts in this case. Therefore, when
the facts do exist on record and the Government have applied their mind to
those facts and came to the conclusion that from the facts so collected they
were satisfied that the Committee had contravened clauses (v) and (vi) of
sub-section (3) of Section 16-D, they have rightly exercised the power under
sub-section (4) of Section 16-D. We are of the view that the High Court has
traversed the controversy as a court of appeal and committed manifest error of
law in interfering with the order."
In Durga Devi v.
State of H.P. [(1997) 4 SCC 575], this Court held:
16 "4. In the
instant case, as would be seen from the perusal of the impugned order, the
selection of the appellants has been quashed by the Tribunal by itself
scrutinising the comparative merits of the candidates and fitness for the post
as if the Tribunal was sitting as an appellate authority over the Selection
Committee. The selection of the candidates was not quashed on any other ground.
The Tribunal fell in
error in arrogating to itself the power to judge the comparative merits of the
candidates and consider the fitness and suitability for appointment. That was
the function of the Selection Committee. The observations of this Court in
Dalpat Abasaheb Solunke case are squarely attracted to the facts of the present
The order of the
Tribunal under the circumstances cannot be sustained. The appeal succeeds and
is allowed. The impugned order dated 10-12-1992 is quashed and the matter is
remitted to the Tribunal for a fresh disposal on other points in accordance
with the law after hearing the parties."
cannot be any doubt or dispute whatsoever that a writ court could interfere
with a finding of fact when the same inter alia is found to be perverse.
However, neither any such finding has been arrived at by the High Court nor do
we find any and as such the decision of this Court relied upon by Mr. Mahajan
in Bhagat Ram v. State of Himachal Pradesh [(1983) 2 SCC 442] cannot be said to
have any application whatsoever in this case.
17 The High Court
furthermore failed to take into consideration that while exercising its power
of judicial review, it exercises a limited jurisdiction. The court, it is
well-settled, is ordinarily concerned with the decision making process and not
the merit of the decision.
also cannot be said that the equity lies in favour of the respondent No. 1.
Even otherwise, when respective merit of the candidates is taken into
consideration, equity has hardly any role to play.
the reasons aforementioned, the judgment of the High Court being wholly
unsustainable is set aside. The appeal is allowed. The Collector, Hisar is
directed to restore the services of the appellant forthwith.