REPORTABLE

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. … Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Appointment 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:

“28. Rules  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.”

3. Pursuant to or in furtherance of the said rule making power, the State

of Punjab framed the Punjab Land Revenue Rules (for short “the Rules”).

Criterion for 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:

“(a) his hereditary claims; (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;”

4. The District Collector of Hisar undertook the process of appointment

of Lambardar for the Village Thurana in his District  in terms of the said

Rules.

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5. Indisputably,  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, stating:

“…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…”

6. For  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.   

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7. Respondent 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.   

8.  Before 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:

“…It  is  suffice  to  say  that  these  proceedings appear  to  be  motivated,  having  been  filed  after initiation of procedure for appointment to the post of Lambardar...”

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The appointment of the appellant, on the said findings, was directed

to be set aside by the High Court, stating:

“Respondent No.4 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 Thurana.”

9. Mr.  S.B.  Sanyal,  learned  senior  counsel  appearing  on  behalf  of

appellant, in support of this appeal, would submit:

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(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 fifteen years.

(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.

10. Mr.  V.C.  Mahajan,  learned  senior  counsel  appearing  on  behalf  of

respondent No. 1, contended:

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(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.

11. ‘Lambardar’ 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:

“…The 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

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number: as the representative  of the rest  he may hold the office by descent or by election…”

12. Although 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.  

13. The 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 consideration.

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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 property.

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

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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.

14. It 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:

“…It  is  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.

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Similar view was expressed in  Lila Ram v.  Asa Ram [1955 Lahore

Law Times 29] in the following terms:

“…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 interference.”

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:

“Another  aspect  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

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State,  it  cannot  be  said  that  he  is  a  whole-time salaried servant of the State.”

15. Keeping in view the aforementioned backdrop, the correctness of the

judgment of the High Court may have to be considered.

16. The 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-à-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

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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.   

17. It 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 germane therefor.

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

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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 jurisdiction.”  

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  of  fact. 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

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correctness  of  the  decision  making  process  but also on the correctness of the decision itself.”

In State of U.P. v. Committee of Management of S.K.M. Inter College

[1995 Supp (2) SCC 535], this Court held:

“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:

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“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 case. 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.”

18. There 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.   

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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.

19. It 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.

20. For  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.

No costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 12, 2008

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