Karl Reddy, F.C. - This is a petition under Section 16 of the Punjab Land Revenue Act, 1887 seeking to revise the order dated 11.2.2000 of the Commissioner (Appeals), Jalandhar Division, Jalandhar, appointing Basant Ram respondent as lambardar of village Gurdaspur, H. B. No. 337, Tehsil and District Gurdaspur, against the vacancy caused by the death of his brother Ram Lal, and to restore the order, dated 21.1.1999 of the District Collector, Gurdaspur appointing Darshan Kumar petitioner.

2. The District Collectors choice fell on Darshan Kumar because :

(i) Basant Ram was not one of the original contestants. The file had been sent on 23.7.1997 to the Assistant Collector IInd Grade, Gurdaspur to afford opportunity of hearing to various parties. Instead, the Assistant Collector IInd Grade invited applications afresh, which was without jurisdiction;

(ii) Darshan Kumar is a better candidate than Basant Ram. Although Darshan Kumar had been convicted in a case of illicit distillation, he was released on probation. The conviction some 20 years ago cannot stand in the way of his appointment as lambardar now.

3. The Commissioner reversed this order on the ground that when the other contestants had raised no objection to the invitation of fresh applications by the Assistant Collector IInd Grade, with or without jurisdiction, it was incumbent on the District Collector to consider those applications. Moreover, it is doubtful whether Darshan Kumar owned land in the village at the time when the District Collector made his selection, although he may have acquired the same thereafter. Finally, a 20 year old conviction may not be a disqualification, but it cannot be totally ignored while assessing relative merits of the candidates. When a candidate with a clean slate is available, he should be appointed.

4. On the procedural side, it is not clear what the District Collector hoped to achieve by remanding the case on 23.7.1997 to the Assistant Collector IInd Grade with a direction that he should hear the contestants afresh. The officials subordinate to the District Collector have no fact finding role and function more or less as a post office. It is necessary to stress this point, because if the subordinate officials are allowed to indicate their preference, and that preference is set at naught by the District Collector, the choice of the District Collector may be challenged on the ground that he did not abide by the choice of his subordinates as has happened in the instant case.

5. It is correct that the Assistant Collector IInd Grade should not have invited applications afresh when there was no direction from the District Collector, but the District Collector had the option to reject the fresh applications in toto. Once the respective merits of the additional candidates was taken into consideration, they could not be rejected thereafter on the ground of procedural irregularity.

6. Counsel for the petitioner has cited 1980 PLJ 54 in support of his contention that a candidate convicted of an offence under the Indian Penal Code but given the benefit of Section 4 of the Probation of Offenders Act, is not unfit for the post of lambardar. Further, the petitioner has been working as Sarbrah lambardar for a number of years and hence is to be given preference. Moreover it is settled law that the choice of the District Collector is not to be lightly upset.

7. From the file, it appears that the petitioner was not only convicted and released on probation, but was dismissed from the post of police constable on this account. The factum of dismissal is hotly disputed. Accordingly, the case is remanded to the District Collector, Gurdaspur for affording opportunity to the parties to produce evidence for and against the factum of dismissal. The respondent shall be appointed if it is proved that the petitioner was dismissed from Government service. The petitioner shall be appointed if the factum of dismissal is not proved. The parties are directed to appear be