Jammu & Kashmir High Court
Vipan Kumar vs Union Territory Of Jammu And on 2 May, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 07.03.2025
Pronounced on: 02.05.2025
WP(C) No. 465/2023
CM No. 4394/2023, 1103/2023
c/w
CCP(S) No. 69/2024
1. Vipan Kumar .....Appellant(s)/Petitioner(s)
Aged 46 Years, S/O Sh. Kewal
Krishan, R/O Village Salalpur
Tehsil Mahreen, District Kathua.
Through: Mr. Ankesh Chandel, Advocate.
Vs
1. Union Territory of Jammu and ..... Respondent(s)
Kashmir
Th. Commissioner/Secretary, Revenue
Department, Civil Secretariat,
Jammu/Srinagar.
2. Deputy Commissioner,Kathua
3. Sub Divisional Magistrate,
Hiranagar, District Kathua.
4. Tehsildar, Tehsil Mahreen, District
Kathua.
5. Naib Tehsildar, Kore Punnu, Tehsil
Mahreen, District Kathua.
6. Rajinder Parshad,
S/O Tilak Raj, R/O Salalpur Tehsil
Mahreen, District Kathua.
Through: Ms. Monika Kohli, Sr. AAG
Mr. Mayank Gupta, Advocate.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The case projected by the petitioner in this petition is that a notification
dated 11.01.2023 was issued by the respondent No. 4, whereby
applications were invited from the interested candidates for filling up of
c/w
the vacant posts of Lambardar for various villages of Tehsil Mahreen
including the village Salalpur, within a period of fifteen days of the
publication of the notice. The petitioner applied on 23.01.2023 i.e. within
the period of fifteen days from the date of issuance of the notification
with the respondent No. 4. The respondent No. 4 on receipt of the
application endorsed the same to Naib-Tehsildar i.e. the respondent No.
5 with a direction to prepare the file after completing all the formalities.
The respondent No. 5 in turn endorsed the application to Patwari Halqa
for report on the same date itself. The respondent No. 6 also in response
to the notification dated 11.012023 applied for his appointment as
Lambardar for village Salalpur by submitting his application on
20.01.2023, but as the respondent No. 4 was having ulterior motive and
interested in appointing the respondent No. 6 only as Lambardar for
village Salalpur, the respondent No. 4 without waiting for expiry of
fifteen days' period prescribed in the notification for submitting the
application, in utter contravention and violation of the Lambardari Act of
1972 and Jammu and Kashmir Lambardari Rules, 1980, issued the order
impugned on 23.01.2023, and appointed the respondent No. 6
temporarily as Lambardar by exercising powers vested in him under the
Rule 14 (4) of the Lambardari Act/Rule of 1972/1980 respectively.
2. It is alleged by the petitioner that when he came to know about the
illegal temporary appointment of the respondent No. 6, he immediately
raised objection in writing by filing a complaint dated 24.01.2023 with
the respondent No. 4, thereby bringing to the notice of respondent No. 4
that the respondent No. 6 was not eligible for appointment as Lambardar
on account of having a status of defaulter, as his loan had been declared
c/w
NPA by the Jammu Central Cooperative Bank Ltd. Salalpur. Complaint
dated 24.01.2023 was endorsed by the respondent No. 4 to the
respondent No. 5 with a direction to get report from the concerned bank.
The concerned Manager in response thereof recorded a certificate dated
24.01.2023 under his seal and signature that the respondent No. 6 had
obtained M. T. Retail Trade loan from Salalpur Branch of the Jammu
Central Cooperative Bank Ltd. to the tune of Rs. 2,00,000/ and the said
loan amount of the borrower i.e. the respondent No. 6 had turned NPA as
on date 31.03.2020 and remained NPA till date. As the respondent No. 4
did nothing in the matter even after submission of the report of the
concerned bank, the petitioner availed the statutory remedy of appeal
under Rule 13 of the Rules of 1980 and filed an appeal, though styled as
cancellation of temporary appointment order of Lambardar of village
Salalpur, before the Deputy Commissioner, Kathua i.e. respondent No. 2
on 25.01.2023. The respondent No. 2 on receipt of the appeal endorsed
the same to the respondent No. 4 to submit report, which in turn was
marked by the respondent No. 4 to the respondent No. 5 for detailed
report within a period of six days. It is further alleged by the petitioner
that as the respondent No. 6 is highly influential person, therefore, he has
got the proceedings stalled in the complaint dated 24.01.2023 filed
before the respondent No. 4 and appeal dated 25.01.2023 before the
respondent No. 2.
3. By placing these facts, the petitioner has sought quashing of appointment
order dated 23.01.2023. Further, a prayer has been made for directing the
respondent No. 2 to decide the appeal for cancellation of temporary
appointment of the respondent No. 6 as Lambardar and further for
c/w
commanding the respondents to appoint the petitioner as Lambardar of
Village Salalpur, Tehsil Mahreen.
4. The official respondents in their response have stated that notification
dated 11.01.2023 was issued from the office of Tehsildar, Mahreen but
the same was withdrawn on 16.01.2023 as there was no provision of
issuing notification for filling vacant post of Lambardar in Lambardari
Rules 1980. The application of the respondent No. 6 was received from
Naib-Tehsildar Kore Punnu after verification vide office letter dated
23.01.2023 and on the same day, he was temporarily appointed as
Lambardar for a period of six months. The application of the petitioner
was received on 24.01.2023, which was rejected as the order for
temporary appointment of Lambardar stood already issued on
23.01.2023. The official respondents have admitted that on 27.01.2023,
he liquidated whole of the amount of Rs. 2,00,000/ and produced the
NOC from the Jammu Central Cooperative Bank Ltd and the respondent
No. 4 intimated the same to Deputy Commissioner, Kathua i.e.
respondent No. 2 vide letter dated 03.02.2023.
5. The respondent No. 6 too has filed the objections, stating therein that
relief sought by the petitioner cannot be granted and this Court cannot
issue the writ of mandamus to compel the respondents to exercise their
discretion in the manner as desired by the petitioner, as the statute clearly
places discretion with the area collector, who is to notify it, in such
manner as he deems appropriate. It is further stated that the order in
question was yet to be confirmed by the respondent No. 2, therefore, this
Court lacks jurisdiction to address legality or illegality of the order at
this stage. It is stated that the petitioner and the respondent No. 6 belong
c/w
to same family and when the allegations were levelled by the petitioner
against the respondent No. 6, he obtained NOC from the same
Cooperative Bank, which had declared the respondent No. 6 as defaulter.
6. Mr. Ankesh Chandel, learned counsel for the petitioner has argued that
the way in which the respondent No. 6 has been appointed clearly reeks
of arbitrariness on part of the respondent No. 4. The respondent No. 6
had concealed the fact that he was a defaulter of the Central Cooperative
Bank Ltd and succeeded in getting himself appointed as Lambardar,
therefore the order impugned is required to be quashed.
7. Per contra, Mr. Mayank Gupta, learned counsel for the respondent No.
6 has argued that the respondent No. 2 has yet to confirm the
appointment of the respondent No. 6, therefore, this Court cannot
interfere at this stage. In the written arguments, it is stated that the
respondent No. 6 was an eligible candidate as per the official notification
and had previously held the post of Lambardar and the petitioner has
deliberately concealed this fact. He has laid much stress that the
respondent No. 6 has obtained NOC negating the claim of the petitioner
that the respondent No.6 was defaulter.
8. Heard learned counsel for the parties and perused the record.
9. The petitioner has stated that notification dated 11.01.2023 was issued
by the respondent No. 4 inviting applications from the interested
candidates for filling up the vacant post of Lambardar within a period of
fifteen days from the publication of the notification. The respondent No.
6 too has admitted in his written arguments that he was eligible
candidate as per the official notification. The official respondents have
stated that they had withdrawn the notification, however, no notification
c/w
in respect of withdrawal of the notification issued earlier, has been
produced before this Court.
10. Be that as it may, the fact remains that the petitioner and the respondent
No. 6 applied for the post of Lambardar pursuant to that notification
only. But for that notification, neither the petitioner nor the respondent
No. 6 could have become aware of the filling up of the vacant post of
Lambardar for the village Salalpur, Tehsil Mahreen, though on
temporary basis. Interestingly, in the order impugned dated 23.01.2023,
it has been mentioned that one application has been received in this
office on 20.01.2023. It is difficult to comprehend as to how the person
desirous of seeking appointment as Lambardar, would come to know that
Tehsildar is going to appoint substitute (temporary Lambardar), thereby
filling up the vacant post of Lambardar. The official respondents may be
right in submitting that under the rules there is no requirement for
publication of notification inviting applications, but once the Tehsildar is
appointing Lambardar, though on temporary basis, it is imperative that
equal opportunity is provided to all the interested candidates, and the
best candidate is appointed as Lambardar though temporarily. Tehsildar
cannot as per his own sweet will appoint any person as Lambardar
without affording any opportunity of equal participation in the process
for appointment of Lambardar though on temporary basis, to the other
interested candidates.
11. This Court is of the considered view that issuance of notification inviting
applications from the interested candidates, though is not the
requirement of Rule 11 of the Lambardari Rules, but such requirement is
inherent in the power vested in the Revenue Officer to make temporary
c/w
appointment of Lambardar. Providing equal opportunity to all the
interested candidates to participate in the process of appointment of
Lambardar, even on temporary basis, is possible only if the proper
information in respect of intention of Tehsildar to make temporary
appointment of Lambadar, is disseminated to the interested candidates.
Otherwise, it would vest the Revenue Officer i.e. Tehsildar with absolute
and unbridled discretion to appoint any person of his choice as
temporary Lambardar. The respondent No.4 has stated that the
application of the petitioner was received on 24.01.2023 but the same
was rejected because the order impugned stood already issued. The copy
of the application placed on record by the petitioner reveals that the
application submitted by him was marked by respondent No.4 to
respondent No. 5 on 21.01.2023 and the same was marked by the
respondent No.5 to Patwari concerned on 23.01.2023. It appears that the
person at the helm of affairs of office of respondent No.4 has made a
brazen attempt to mislead this court. It is strange that when the
application was submitted on 24.01.2023, then how the report came to be
called from Patwari on 23.01.2023. These facts speak about the conduct
of the respondent No.4 that he wanted to appoint the respondent No.6 by
hook or by crook. If the actions and demeanour of the respondent No. 4
are tested on the anvil of concept of equality, as enshrined in Article 14
of the constitution of India, it is found that the respondent No.4 has acted
in an illegal and arbitrary manner.
12. More so, the respondent No. 6 was a defaulter of Jammu Central
Cooperative Bank Ltd. and the official respondents also have stated that
no dues certificate was submitted by the respondent No. 6 only on
c/w
27.01.2023, meaning thereby that when he applied for and was appointed
as Lambardar, he was a defaulter of Jammu Central Cooperative Bank
Ltd. It clearly establishes that the respondent No. 6 had concealed his
status of being defaulter from the respondent No. 4, which was
subsequently cleared by the respondent No. 6 on 27.01.2023.
13. Though the petitioner has preferred an appeal before the respondent No.
2, but it appears that the same has not been decided. This Court vide
order dated 01.03.2023 had stayed the operation of the order dated
23.01.2023. It is the stand of the respondent No. 6 that his appointment
as temporary Lambardar has not been approved by the respondent No. 2.
This Court could have directed the respondent No. 2 to decide the appeal
preferred by the petitioner, but taking into consideration that the whole
process of engaging the respondent No. 6 is illegal as initial notification
was issued on 11.01.2023, whereby the applications were invited from
the interested candidates within a period of fifteen days of publication of
notification and the petitioner applied for the same on 23.01.2023 i.e.
well within the time of fifteen days from the publication of notification,
but was not considered on account of self-conceived opinion formed by
the respondent No. 4 that notification was not required at all, resulting
into denial of opportunity to the petitioner to seek appointment as
Lambardar though on temporary basis and before expiry of 15 days, the
respondent No. 6 was appointed as Lambardar on 23.01.2023. The
appointment of the respondent No. 6, though yet to be confirmed, cannot
be held to be sustainable in the eyes of law. The period of temporary
appointment of the respondent No. 6 was for six months only and this
writ petition has been pending before this Court for nearly two years, as
c/w
such, directing the respondent No. 2 to decide the appeal of the petitioner
would further prolong the matter.
14. For what all has been considered, discussed and analysed hereinabove,
the order impugned dated 23.01.2023 is quashed and the respondent No.
1 is directed to ensure that the election for the post of Lambardar of
Village Salalpur, Tehsil Mahreen is held within a period of six months
from today and in the event, the respondent No. 4 intends to appoint
Lambardar temporarily for the period of six months, the respondent No.
4 shall issue notification inviting applications from all the interested
candidates to participate in the selection process and thereafter, only
appoint Lambardar for the period prescribed under the Lambardari
Rules.
15. Disposed of along with connected applications.
16. Original record retained be returned to the Ms. Monika Kohli, learned
senior AAG forthwith on proper receipt.
1. In view of disposal of the main petition, the instant contempt petition
arising out of the interim order passed in the main petition, accordingly,
is disposed of and the contempt proceedings are closed.
(RAJNESH OSWAL)
JUDGE
Jammu
02.05.2025
Sahil Padha
Whether the order is speaking: Yes
Whether the order is reportable: Yes
