Kulwant Singh v. Randeep Singh & Others

INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANA AToCHANDIGARH LPA-236-2017o(O&M) Da !o"#oD!$%&%"'(oti)*02*2026 KULWANT SINGH ...Appellant Versus RANDEEP SINGH AND ORS ...Respondents CORAM(o HON+BLEoMR*oJU,TICEoHAR,IMRANo,INGHo,ETHI HON+BLEoMR*oJU,TICEo-I.A,o,URI Present: Mr. Birinder Singh Khehar, Advocate, for the appellant. Mr. Sherry K. Singla, Advocate, for respondent No.1. Mr. Yatin Bunger, AAG, Punjab. ***** oHAR,IMRANo,INGHo,ETHIoo/oJ*o(ORAL)o

¶1In the present appeal, the challenge is to the order dated

08.12.2016 passed by the learned Single Judge in CWP52511752014, by which the writ petition filed by respondent No.15Randeep Singh challenging the order dated 01.10.2014 (Annexure P55) passed by the Financial Commissioner, Punjab, so as to remand the case back to the Collector for deciding afresh the appointment of the Lambardar in the village Saparheri, Tehsil Samana, has been set aside and respondent No.1 has been directed to be appointed as a Lambardar.

¶2oLearned counsel appearing on behalf of the appellant submitsothat the District Collector, Patiala,oafter due consideration, passed an order appointing appellant5Kulwant Singh as a Lambardar vide order dated

27.09.2011,ocopy of which has been appended asoAnnexure P52. oThe said appointment was challenged by respondent No.15Randeep Singh before the Divisional Commissioner, Patiala,owhereby the appointment of the appellant was set aside vide order dated 18.09.2012 (Annexure P54)oand respondent LPA523652017 (O&M)

(2) No.15Randeep Singh was appointed as Lambardar, against which order, an appeal was preferred by the appellant before the Financial Commissioner, Punjab. After noticing all the facts, the Financial Commissioner found that a fresh consideration is required to be undertaken for the appointment of Lambardar at the hands of Collector keeping in view the allegations and counter5allegations  as well as a report received from the Sub Divisional Magistrate, which was also taken into consideration and therefore, the case was remanded back to the Collector.

2.1 The said order of remand was challenged by respondent No.1 before the learned Single Judge and the learned Single Judge vide impugned order dated 08.12.2016 has set aside the order of the Financial Commissioner, Punjab, so as to declare respondent No.15Randeep Singh as Lambardar by upholding the order of the Divisional Commissioner, Patiala.

2.2. Learned counsel for the appellant submits that once the matter was remanded back for fresh adjudication by the Financial Commissioner, the learned Single Judge was only required to ascertain whether the said order was valid or not, whereas, the learned Single Judge upheld the order of the Divisional Commissioner, Patiala, wherein the appointment of the appellant was set aside.  Learned counsel for the appellant further submits that the matter needs to be remanded back for fresh appointment of the Lambardar, especially when both the appellant as well as respondent No.1, are claiming themselves to be the Lambardar as per the order passed by the different revenue authorities.

¶3Learned counsel appearing on behalf of respondent No.1 submits that  there was a forged certificate submitted by the appellant qua LPA523652017 (O&M) (3) thhis passing of 7 class examination. This factowas noticed by the learned Single Judge and held that such candidate cannot be treated as a Lambardaroand therefore, appointed respondent No.15Randeep Singh as Lambardar,owhich order is perfectly valid.o

¶4Controverting the said submission, learned counsel for the appellant submitsothat after the appointment of the appellant as Lambardaroby the District Collector, Patiala, anoexoparteoenquiry report was securedoand that too, without associating the appellant in any mannerowith regard to the alleged forgery of the document and the said document has been relied upon by the learned Single Judgeo and that too, without giving any opportunity to rebut the same.o

¶5We have heard the learned counsel for the parties and have gone through the record of the case with their able assistance.

¶6The District Collector, Patiala, after adjudicating the relevant claims,oappointed the appellant as a Lambardar,owhich appointment was set aside by the Divisional Commissioner, Patialaoand respondent No.15 Randeep Singh was appointed as Lambardar.o Thereafter, in the appeal preferred by the appellant, the Financial Commissioner, Punjab was of the viewothat a fresh consideration needs to be undertaken and therefore, remanded the case back to the District Collector for fresh adjudication of the rival claimsoraisedoby the appellant as well as respondent No.1. o

¶7The learned Single Judge has set aside the said order of the Financial Commissioner only on the ground that there was a false document thqua his passing of 7 class examination submitted by the appellant.oIt may be noticed that the said opinion is based uponoanoexoparteoinquiry report LPA523652017 (O&M) (4) submitted before the learned Single Judge. The said exoparte report was obtained, firstly, without associating the appellantoand secondly, after the appointment of the appellant as Lambardar. oIn such cases, in case the appointment becomes vitiated,othe same is ought to be set aside by a competent authority under the provisions of law, whereas, reliance was placed upon subsequent fact to change the candidate from appellant to respondent No.1,owhich is not correct.o

¶8Further, any report prepared exoparte,ocannot cause prejudice unless and until opportunity to rebut the same is given to the concernedobefore the said document is treated to the prejudice of such concerned person. In the present case, exoparte inquiry report for the educational qualification of the appellant has been used against him and that too, without associating him which is prejudicial and therefore, cannot be accepted.o

¶9At this stage, learned counsel for respondent No.1 submits that as the appointment of respondentoNo.1 was not final for the reason that an appeal has been filed, the same could have been done by the Commissioner,owhich was rightly done.oIn this regard, it may be noticed that once the appointment is made by the Collector, the filing of an appeal does notomean that the appointment is not final. Further, any document which has been taken into consideration in appeal, which was not existing on the date of appointment, the same cannot be taken into account by the appellate authority post such appointment qua its validity of appointment. Theo ex parte enquiry report qua educational qualification, which has been relied upon by the Commissioner to decide the issue withoregard to the entitlement LPA523652017 (O&M) (5) of the appellant to be appointed as Lambardar was non5existentoon the day of appointment of appellant as Lambardar and the said document which is subsequent to the appointment can onlyobe taken into consideration for the purpose of setting aside of the appointment, whereas the Commissioner treated the same forosubstitution of the candidate, which was impermissible.o

¶10Hence, keeping in view the facts and circumstances of the present case, othe order passed by the Financial Commissioner, Punjab, was most suitedoso as to remand the case back to the District Collectorofor deciding the claim afresh in accordance with lawoby giving opportunity to both the sides to present their objections against each other including the factor of education qualification of appellant, order passed by the learned Single Judge is set aside.

¶11Let the District Collector decide the proceedings within a period of eight weeksofrom the date of receipt of copy of this order by giving due opportunity of of being heard to both the parties to present their objections against each otherobefore determining the suitable candidate out of the appellant and the respondent No.1.oFurther, till the fresh order is passed by the District Collector,othe Lambardar, who is already officiating as on date as per the revenue records, will continue.

¶12Accordingly, the present appeal is allowed in above terms.

¶13Pending applications, if any, also stand disposed of. (oHAR,IMRANo,INGHo,ETHIo) JUDGE (o-I.A,o,URIo) F!012a13oti)/o2026 JUDGE