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2004 DIGILAW 637 (GAU)

Abdul Latif Barbhiya v. State of Assam

2004-12-17

BROJENDRA PRASAD KATAKEY

body2004
JUDGMENT B.P. Katakey, J. 1. This writ petition has been filed by the petitioners challenging the recommendation made by the Permanent Committee for appointing the Respondent No. 4 as Muslim Marriage Registrar. 2. The fact in brief is that an advertisement in local daily "Sonar Cachar" was issued on 4.5.2002 inviting applications for the post of Muslim Marriage Registrar and Kazi at Barkhola in the district of Cachar, in pursuant to which both the petitioners and the private respondent No. 5 along with other candidates applied for the said post. According to the petitioners, interview was conducted by the Interview Board consisting of District Registrar, Cachar, Deputy District Registrar and the Sub-Divisional Officer (Sadar) Civil on 23.9.2002 and the select list was prepared wherein the names of the petitioner Nos. 1 and 2 appeared at Sl. No. 1 and 2 respectively. The name of private respondent No. 5, according to the petitioners, appeared in the bottom of the list. The said list was forwarded by the District Registrar, Cachar to the Permanent Committee constituted under the provision of Assam Moslem Marriage and Divorces Registration Act, 1935 and the rules framed thereunder, and the Permanent Committee in total disregard to the merit list prepared and sent by the District Registrar recommended the name of respondent No. 5 for appointment as Muslim Marriage Registrar and Kazi by the resolution adopted in its meeting dated 6.12.2003. The writ petitioners have filed the present application challenging the said recommendation of the Permanent Committee. 3. I have heard Mr. H.R.A. Choudhury, learned counsel for the writ petitioners, Mr. R.K. Bora, learned Govt. counsel for the respondent Nos. 1 to 4 and also Mr. M.U. Mahmud, learned counsel for the private respondent No. 5. 4. Mr. Choudhury has submitted that the petitioners have challenged the aforesaid recommendation of the Permanent Committee dated 6.12.2003 on the ground that the respondent No. 5 is not a resident within the local limit of the jurisdiction of Barkhola police station and as such not entitled to be preferred over the writ petitioners, who according to Mr. Choudhury, are residing at a convenient place within the limit of jurisdiction of Barkhola police station, for which the Muslim Marriage Registrar and Kazi is sought to be appointed. Another submission of Mr. Choudhury, are residing at a convenient place within the limit of jurisdiction of Barkhola police station, for which the Muslim Marriage Registrar and Kazi is sought to be appointed. Another submission of Mr. Choudhury is that the District Registrar having prepared a list on the basis of merit, wherein the names of the petitioner Nos. 1 and 2 appeared at Sl. Nos. 1 and 2 respectively, the Permanent Committee constituted under the Act is bound by the said list and to recommend the person whose name appears in the said list strictly in conformity with the position in the list and in case, the said Permanent Committee decided not to recommend the person whose name appeared at Sl. No. 1, it has either to request the District Registrar to submit a fresh nomination or may select another candidate with necessary qualifications under the Rules 6 of the Rules. According to Mr. Choudhury, 'said another candidate' means candidate whose name does not appear in the list sent by the District Registrar. 5. On the other hand, Mr. Bora learned Govt. counsel has submitted that the advertisement was issued by the District Registrar for the purpose of preparation of a list of candidates for nominating their names to the Permanent Committee for the purpose of selection as Muslim Marriage Registrar and Kazi at Barkhola. According to Mr. Bora, no select list was ever prepared by the District Registrar as claimed by the writ petitioners and the District Registrar in fact, sent all the applications to the Permanent Committee nominating their names for the purpose of selection to the said post. Mr. Bora relying upon the provisions of Act and the Rules framed thereunder as well as the affidavit in opposition filed by the respondent No. 3, has submitted that there is no question of preparation of any select list by the District Registrar as he has no power and authority to prepare any select list for that purpose. It is the Permanent Committee who has the power to select and recommend a candidate for the post of Muslim Marriage Registrar and Kazi. Countering the argument of Mr. Choudhury that the writ petitioners being resident at a convenient place within the limit of jurisdiction of Barkhola ought to have been preferred over the respondent No. 5, Mr. It is the Permanent Committee who has the power to select and recommend a candidate for the post of Muslim Marriage Registrar and Kazi. Countering the argument of Mr. Choudhury that the writ petitioners being resident at a convenient place within the limit of jurisdiction of Barkhola ought to have been preferred over the respondent No. 5, Mr. Bora has submitted that the said preference is available only when other things are equal between the petitioners and respondent No. 5. According to him, the Permanent Committee has selected and recommended the name of the respondent No. 5 over the petitioners on the ground that he was found to be more qualified and a resident near the place. Mr. Bora has further contended that the Permanent Committee constituted by the experts and having found respondent No. 5 more qualified, the scope of judicial review by this Court is very limited and this Court cannot sit on appeal over the decision of the Permanent Committee which is the authority for the purpose of selection and recommendation to the post in question. Mr. Bora has further submitted that the name of respondent No. 5 was also nominated by the District Registrar along with writ petitioners and the Permanent Committee having selected one of the candidates nominated by the District Registrar, there is no question of requesting the District Registrar again to submit a fresh nomination. 6. Mr. M.U. Mahmud, learned counsel for the respondent No. 5 has also submitted that scope of judicial review of the decision of the Selection Committee i.e. the Permanent Committee constituted under the Act for selection of candidate to the post in question being very limited, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India shall not interfere with the selection of the respondent No. 5 made by the Permanent Committee. Mr. Mahmud has further submitted that admittedly respondent No. 5 is more qualified than the writ petitioners having obtained more marks in F.A. and M.M. examination. In any case he being a resident of a convenient place within the limit of jurisdiction of Barkhola, the Permanent Committee has rightly selected his name for appointment to the said post. According to Mr. Mahmud has further submitted that admittedly respondent No. 5 is more qualified than the writ petitioners having obtained more marks in F.A. and M.M. examination. In any case he being a resident of a convenient place within the limit of jurisdiction of Barkhola, the Permanent Committee has rightly selected his name for appointment to the said post. According to Mr. Mahmud, Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India shall not go into the disputed question of fact about the place of residence of the candidates, which dispute is sought to be raised by the writ petitioners in the present writ petition. Mr. Mahmud has submitted that since there is no infraction of the provisions of the Act as well as the Rules framed thereunder, selection made by the Permanent Committee may not be interfered with by this Court. 7. I have considered the rival submissions of the learned counsel for the parties, perused the writ petition as well as affidavits filed and also the records produced by the learned Govt. counsel. 8. In exercise of power conferred by Section 17 of the Assam Moslem Marriage and Divorces Registration Act (hereinafter referred to as the Act) 1935, the State Government has framed the Assam Moslem Marriages and Divorces Registration Rules, 1935 (hereinafter referred to as the Rules). Rule 2 of the said Rules requires the District Registrar to nominate a sufficient number of persons possessing requisite qualifications specified in Rule 3 to be licensed as Moslem Registrars under Section 3 of the Act. Such nominations are required to be submitted to the Inspector General of Registration to be placed before the Permanent Committee constituted under the Rules, along with original applications of the candidates and other testimonials as required under Rule 3 of the Rules. Rule 4 of the Rules provides that preference for nominating the name of a candidate is required to be given to a candidate who has passed the Assam Senior Madrassa Final Examination and having good moral character. Rule 4 further stipulates that preference shall ordinarily be given to candidates who are natives of or domiciled in Assam and who reside at a convenient place within the limits of jurisdiction proposed. Rule 4 further stipulates that preference shall ordinarily be given to candidates who are natives of or domiciled in Assam and who reside at a convenient place within the limits of jurisdiction proposed. Rule 5 of the Rules provides that the limits in which a Moslem Registrar is to be licensed to act shall coincide with the limits of a sub-district under the Indian Registration Act, or with the jurisdiction of such police station or stations or parts thereof, as the Government may, from time to time direct. Rules 6 of the Rules stipulates that in case, the Permanent Committee disapproves the nomination of the District Registrar, he may be requested to submit a fresh nomination, or the Permanent Committee may select another candidate with the necessary qualifications which has to be approved by the Government. For better understanding Rules 2, 3, 4, 5 and 6 of the Rules are quoted below:- "2. Nomination of Moslem Registrar. As soon as the Act comes into force in any area, the District Registrar shall nominate a sufficient number of persons possessing the qualifications specified in Rule 3 to be licensed as Moslem Registrars under Section 3. The District Registrar shall also specify the limits within which each of the persons so nominated shall exercise the functions of Moslem Registrar. 3. Form of application. The District Registrar's nominations shall be submitted to the Inspector General of Registration to be placed before the Permanent Committee, and shall be accompanied by the original application of the candidate in the following form, together with a certificate of good moral character, and either a certificate that he has passed the Assam Senior Madrassa Final Examination or a certificate that he possesses a sufficient acquaintances with the Arabic language and the Moslem Law of Marriage and Divorce, signed by three Muhammadan gentlemen of respectability and position. Application for Moslem Registrarship under the Assam Act DC of 1935 An Act to provide for the voluntary registration of Moselm Marriages and Divorces at .............. Thana................ District of................. Who may be nominated. Candidates for permanent posts of Moslem Registrar will be preferred if they have passed the Assam Senior Madrassa Final Examination; and they must be of good moral character. Thana................ District of................. Who may be nominated. Candidates for permanent posts of Moslem Registrar will be preferred if they have passed the Assam Senior Madrassa Final Examination; and they must be of good moral character. In the selection of Moslem Registrar preference shall ordinarily be given to candidates who are natives of or domiciled in the Assam and who reside at a convenient place within the limits of the jurisdiction proposed; but no person shall be nominated a Moslem Registrar merely be reason of some supposed hereditary right. The fact that a person is pensioner shall not be a bar. Jurisdiction. The limits within which Moslem Registrar shall be licensed to act shall coincide with the limits of a sub-district under the Indian Registration Act, or with the jurisdiction of such police station or stations or parts thereof, as the Government may, from time to time, direct. The headquarters shall be at some convenient place within those limits. Should be nomination of the District Registrar be disapproved by the Permanent Committee, the District Registrar may be requested to submit a fresh nomination, or the committee may select another candidate with the necessary qualifications for the approval of Government." 9. It is apparent from the said Rules that power to select and recommend a candidate for the post of Muslim Marriage Registrar and Kazi vests on the Permanent Committee constituted under the Rules. The District Registrar is only required to nominate sufficient number of persons possessing requisite qualifications for the purpose of selection by the Permanent Committee. The Rules do not provide for making any selection by the District Registrar or preparation of any select list giving preference by the District Registrar while nominating persons for the purpose of selection by the Permanent Committee. The District Registrar is also required to send all the original applications along with other testimonials to the Inspector General of Registration for the purpose of placing the same before the Permanent Committee, which is the ultimate authority for the purpose of selection and recommendation to the post in question. From a conjoint reading of Rules 2 and 3 of the Rules, it is evident that the District Registrar has no power and authority to prepare any select list in order of preference for the purpose of appointment to the post of Muslim Marriage Registrar and Kazi. From a conjoint reading of Rules 2 and 3 of the Rules, it is evident that the District Registrar has no power and authority to prepare any select list in order of preference for the purpose of appointment to the post of Muslim Marriage Registrar and Kazi. The power of selection being vested on the Permanent Committee, if power of preparation of select list is given to the District Registrar, the same would amount to usurping the power of the Permanent Committee. 10. In the instant case the District Registrar has issued the advertisement calling for the application from the intending candidates for the purpose of selection to the post in question (Annexure-2 to the writ petition). Though by the said advertisement the applications were invited for the said post, in fact, the District Registrar has issued the said advertisement calling for application from the in tending candidates for the purpose of nominating their names to the Permanent Committee for selection by the said Committee in terms of the Rules. There is, therefore, no question of preparation of any select list by the District Registrar in terms of the said advertisement issued in the month of April 2002 and consequently, the Permanent Committee is also not bound to adhere to the said select list, if any. The Permanent Committee, being the authority to make selection and recommendation, is required to verify all the original applications along with other testimonials filed by the candidates and nominated by the District Registrar and select any person from out of the candidates whose applications were forwarded to the said Committee. Rule 6 of the Rules does not provide that the Permanent Committee is bound by the select list, if any, prepared by the District Registrar while nominating names of candidates for the said post. 11. The contention of Mr. Choudhury, learned counsel for the petitioners that the Permanent Committee in case decided not to select the person whose name appears at Sl. 11. The contention of Mr. Choudhury, learned counsel for the petitioners that the Permanent Committee in case decided not to select the person whose name appears at Sl. No. 1 in the select list prepared by the District Registrar, the Committee is either to request the District Registrar to submit a fresh nomination or may select any other candidate other than the candidates nominated by the District Registrar in terms of the provisions of the Rule 6, cannot also be accepted as under Rule 6 the power of selection was given to the Permanent Committee who can select any person found suitable for the post from out of the candidates whose names were nominated by the District Registrar and the name of the respondent No. 5 being one of the nominated candidate by the District Registrar, the Permanent Committee is not required to request the District Registrar to submit a fresh nomination. The District Registrar having not been vested with any power to prepare any select list under the Rules, the preparation of any such list giving preference by the District Registrar will not confer any right on such candidate since the power of selection solely vests on the Permanent Committee. In fact, the records produced by the Government do not reveal preparation of any such select list by the District Registrar, as claimed by the petitioners. The petitioners have also failed to produce any such list before this court. 12. The further contention of Mr. Choudhury that preference ought to have given to the writ petitioners since they reside at a convenient place within the limits of jurisdiction cannot also be accepted on the ground that the said preference is to be given only when the writ petitioners and the respondent No. 5 are found to be equal in merit. 13. In Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors., reported in the Apex Court intensively dealt with the question of giving 'preference' to a candidate in the matter of selection under the relevant Rules and has held as follows : "10. 13. In Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors., reported in the Apex Court intensively dealt with the question of giving 'preference' to a candidate in the matter of selection under the relevant Rules and has held as follows : "10. Both on account of the scheme of selection and the various stages disclosed as necessary to the undergone by every candidate and the manner of actual selection for the appointment in question, the candidates were required to be selected finally for appointment on the basis of the ranks obtained by them in terms of the inter se ranking based on the merit of their respective performance. There is no escape for anyone from this ordeal and claim for any en bloc favoured treatment merely because, any one of them happened to possess and additional qualification than the relevant basis/general qualification essential for even applying to the post. The word 'preference' in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in any isolated or detached manner, ascribing a meaning of universal import for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all round merit, if had to be adjudged in that manner only, what jurisdiction could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The 'preference' envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference mean to give weight age to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. A mere rule of preference mean to give weight age to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority merit wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection." 14. Mr. Choudhury, in support of his contention has relied upon the decision of this Court in Matiur Rahman v. State of Assam and Ors., reported in 2000 (2) GLT 217, wherein this court has held that preference for residing at a convenient place within the limit of the proposed jurisdiction, shall be available if educational qualifications are equal. 15. It is evident from the resolution No. 1 of the Permanent Committee that respondent No. 5 was found to be more qualified than the other candidates including the writ petitioners and therefore, that being the ground for selection, there is no question of claiming any preference by the writ petitioners over the respondent No. 5. Rule 4 of the Rules also does not impose a bar in selecting and appointing any person who does not reside at a convenient place within the limits of jurisdiction. In the instant case it is apparent from the said proceedings of the Permanent Committee dated 6.12.2003 (Annexure-E to the Affidavit-in-Opposition filed by respondent No. 5) that the Permanent Committee has found respondent No. 5 more qualified, who resides near the place selected for opening of new M.M.R. office at Barkhola. In the instant case it is apparent from the said proceedings of the Permanent Committee dated 6.12.2003 (Annexure-E to the Affidavit-in-Opposition filed by respondent No. 5) that the Permanent Committee has found respondent No. 5 more qualified, who resides near the place selected for opening of new M.M.R. office at Barkhola. The said Permanent Committee while selecting the respondent No. 5 carefully considered all the applications along with other testimonials of the candidates including that of the petitioners and found respondent No. 5 more suitable for the purpose of selection and accordingly selected his name. The issue sought to be raised by the writ petitioners regarding the place of residence of the respondent No. 5, which is disputed by the respondent No. 5, cannot be allowed to be raised in this proceeding under Article 226 of the Constitution of India and no decision can be given by the Writ Court on such disputed question of facts. 16. The Apex Court in Nutan Arvind (SMT) v. Union of India and Anr., reported in has held that court cannot sit over the assessment made by the DPC as an appellate authority. The Apex Court also in Mrs. Anil Katiya v. Union of India and Ors., reported in AIR (1997) 1 SCC 280 , while dealing with the question of selection has held as under : "4. Having regard to the limited scope of judicial review of the merits of a selection made for appointment to a service or a civil post, the Tribunal has rightly proceeded on the basis that it is not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the DPC and that it would not sit in judgment over the selection made by the DPC unless the selection is assailed as being vitiated by mala fides or on the ground of it being arbitrary. It is not the case of the appellant that the selection by the DPC was vitiated by mala fides". 17. The petitioners have challenged the selection of the respondent No. 5, only on the grounds stated above and have not challenged the selection on the ground of mala fide exercise of power or violation of any other statutory provisions by the Permanent Committee while selecting the respondent No. 5. 17. The petitioners have challenged the selection of the respondent No. 5, only on the grounds stated above and have not challenged the selection on the ground of mala fide exercise of power or violation of any other statutory provisions by the Permanent Committee while selecting the respondent No. 5. The Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the decision of the Selection Committee, in this case the Permanent Committee, unless such Selection Committee exercises the power mala fide or violates any statutory provision while making such selection. This Court has already recorded the findings that there is no violation of any provision of the Rules in making the selection. There is absolutely no allegation of mala fide in this writ petition. Therefore, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with the selection made by the Permanent Committee selecting and recommending the respondent No. 5 for appointment to the post in question and hence this writ petition deserves to be dismissed. 18. In view of the above, the writ petition is dismissed. No costs.