Judgment Vindod K.Sharma, J. 1. Mr. A.R. Talwar, IAS, Principal Secretary, Government of Punjab Department of Home Affairs and Justice is present in Court. He has explained his position in recommending the name for appointment. It is stated, that the appointment was recommended in view of Section 23 of the Wakf Act, 1995 . He further states that there was no intention to violate the order of the Court. The explanation is accepted. No further action is called for. CM.No. 3322 of 2010 2. The petitioner prayed for a writ of mandamus directing the respondents to appoint the Chief Executive Officer of the Punjab Wakf Board. 3. When the case camp up hearing on 6.4.2010, a statement was made, which reads as under :- "In pursuance to the order dated 1.4.2010, Deputy Secretary Home is present in Court. He has placed on record the notification dated 5.4.2010, Showing the appointment of Sh. Gazi Mohd. Umair, Deputy Advocate General, Punjab, as Chief Executive Officer, Punjab WakfBoard, on deputation. Learned counsel for the petitioner, however, points out that the appointment is not in consonance with the Wakf Act and the Rules framed thereunder, as no advertisement was issued, as envisaged under Rule 8(1) of the Punjab Wakf Rules, 1964 . Sh. B.B. Sethi, Deputy Secretary Home, who is present in Court, assures the Court that the notification appointing the Gazi Mohd. Umair Deputy Advocate General Punjab on deputation as Chief Executive Officer, Punjab Wakf Board, would be immediately withdrawn and the steps would be taken to appoint the Chief Executive Officer/Secretary in accordance with Acts and Rules immediately. He further undertakes that the advertisement inviting applications would be issued within two days and the applications would be preferred within 15 days of the advertisement and the appointment made thereafter within three days, after consultation with the Punjab Wakf Board. He seeks short adjournment to comply with the order passed by this Court, as it is stated by him that the appointment made vide notification dated 5.4.2010 was under bona fide mistake and on the wrong advice rendered to the office, stating therein that the applications could be invited by circulation in different offices from the Punjab State. On request adjourned to 3.5.2010." 4. However, the State Government did not comply with the undertaking given in this Court, as no appointment was made within the period stipulated in the order. 5. On request adjourned to 3.5.2010." 4. However, the State Government did not comply with the undertaking given in this Court, as no appointment was made within the period stipulated in the order. 5. Thereafter an application was moved for extension of time, which came up for hearing on different dates. The orders passed by this Court starting from December 2, 2009 till May 13, 2010 were recorded in the order dated May 13, 2010, which is reproduced below. "The petitioner filed a writ of certiorary to challenge the notification dated 28.8.2008 (Annexure P-2), whereby respondent No. 3 i.e.Khushi Mohd., PPS Superindent of Police, Barnala, District Barnala, was appointed as Chief Executive Officer of the Punjab Wakf Board. The prayer was also made for issuing a writ of mandamus, directing respondents No. 1 and 2 i.e. State of Punjab and Punjab Wakf Board, to fill up the post of Chief Executive Officer, Punjab Wakf Board, as per the provisions of the Wakf Act and Punjab Wakf Rules,1964. The writ was disposed off by this Court on 2.12.2009 by passing the following order:- "This order shall dispose of Civil Writ Petition No. 20227 of 2008 titled Abdul Rasheed v. State of Punjab and others and Civil Writ Petition No. 12690 of 2009 titled Sayed Shabeeh Haider v. State of Punjab and others, as common question of law and facts are involved. These writ petitions have been filed under Articles 226/227 of the Constitution of India to challenge the appointment of respondent No. 3 as Chief Executive Officer of the Punjab Wakf Board, primarily on the plea that his appointment is not in accordance with the provisions of the Wakf Act and the Punjab Wakf Rules, 1964 . During the pendency of the writ petition term of the constituted Wakf Board expired on 10.11.2009 and new Board is now to elect its Chairman and the process for the election of Chairman is on. Learned Additional Advocate General, Punjab, on instructions from Sh. Ashok Pathak, District Attorney, Home Department, Punjab, States that new CEO in accordance with th wakf Act and the Punjab Wakf Rules, 1964 would be positively appointed within two months from today. In view of the statement made by the learned Additional Advocate General, Punjab, on instructions from Sh. Ashok Pathak, learned counsel for the petitioner does not press this writ petition. In view of the statement made by the learned Additional Advocate General, Punjab, on instructions from Sh. Ashok Pathak, learned counsel for the petitioner does not press this writ petition. Dismissed as not pressed." Instead of complying with the under taking given in this Court, an application was moved for extension of time to appoint Chief Executive Officer. On 1.4.2010, this Court passed the following order :- "The petitioner had invoked the jurisdiction of this Court under Article 226/227 of the Constitution of India to challenge the notification dated 28.8.2008, vide which respondent No. 3 was appointed as Chief Executive Officer of the Punjab Wakf Board. When the writ came up for hearing, the learned Additional Advocate General, Punjab on instructions from Sh. Ashok Pathak, District Attorney, Home Department, Punjab stated that new Chief Executive Officer, in accordance with the Wakf Act and the Punjab Wakf Rules, 1964 would be positively appointed within two months. The order was passed on December 2, 2009 on the statement made by the District Attorney, Home Department, Punjab. In spite of an undertaking given in this Court, that the appointment would be positively made within two months, instead of complying with the undertaking, an application has been moved on behalf of the State of Punjab seeking extension of time. The application is supported by an affidavit of Sh. Bharat Bhushan Sethi Deputy Secretary Home. When this matter came up for hearing this application was adjourned to enable the State to take steps to comply with the undertaking. It seems that the State has no respect for law and till date no appointment as per undertaking is made which prima facie constitute contempt of Court. Adjourned to 6.4.2010. The Deputy Secretary Home, Punjab is directed to be present in Court on the adjourned date of hearing. The copy of the order be given to the Addl. AG. Punjab under the signatures of the Special Secretary." In pursuance to the order passed by th is Court, the Deputy Secretary Home came present and placed on record the notification date 5.4.2010, showing appointment of Sh. Gazi Mohd. Umair as Chief Executive Officer, Punjab Wakf Board, on deputation. This Court on 6.4.2010 passed the following order :- "In Pursuance to the order dated 1.4.2010, Deputy Secretary Home is present in Court. He has placed on record the notification dated 5.4.2010, showing the appointment of Sh. Gazi Mohd. Gazi Mohd. Umair as Chief Executive Officer, Punjab Wakf Board, on deputation. This Court on 6.4.2010 passed the following order :- "In Pursuance to the order dated 1.4.2010, Deputy Secretary Home is present in Court. He has placed on record the notification dated 5.4.2010, showing the appointment of Sh. Gazi Mohd. Umair, Deputy Advocate General, Punjab as Chief Executive officer, Punjab Wakf Board; on deputation. Learned counsel for the petitioner, however, points out that the appointment is not in consonance with the Wakf Act and the Rules framed thereunder, as no advertisement was issued, as envisaged under Rule 8(1) of the Punjab Wakf Rules, 1964 . Sh. B.B. Sethi, Deputy Secretary Home who is present in Court assures the Court that the notification appointing Sh. Gazi Mohd. Umair, Deputy Advocate General, Punjab on deputation as Chief Executive officer, Punjab Wakf Board, would be immediately withdrawn and the steps would be taken to appoint the Chief Executive officer/Secretary in accordance with Acts and Rules immediately. He further undertakes that the advertisement inviting applications would be issued within two days and the applications would be preferred within 15 days of the advertisement and the appointment made thereafter with three days, after consultation with the Punjab Wakf Board. He seeks short adjournment to comply with the order passed by this Court as it is stated by him that the appointment made vide notification dated 5.4.2010 was under bona fide mistake and on the wrong advice rendered to the office stating therein that the applications could be invited by circulation in different offices from the Punjab State. On request, adjourned to 3.5.2010". Thereafter, an application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure was moved for recalling the order dated 6.4.2010. On the said application, this Court on 9.4.2010 passed the following order :- "This is an application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure, for recalling the order dated 6.4.2010. This Court on 6.4.2010 passed the following order :- "In pursuance to the order dated 1.4.2010, Deputy Secretary Home is present in Court. He has placed on record the notification dated 5.4.2010, showing the appointment of Sh. Gazi Mohd. Umair, Deputy Advocate General Punjab, as Chief Executive Officer, Punjab Wakf Board, on deputation. This Court on 6.4.2010 passed the following order :- "In pursuance to the order dated 1.4.2010, Deputy Secretary Home is present in Court. He has placed on record the notification dated 5.4.2010, showing the appointment of Sh. Gazi Mohd. Umair, Deputy Advocate General Punjab, as Chief Executive Officer, Punjab Wakf Board, on deputation. Learned counsel for the petitioner, however, points out that the appointment is not in consonance with the Wakf Act and the Rules framed thereunder, as no advertisement was issued, as envisaged under Rule 8(1) of the Punjab Wakf Rules, 1964 . Sh. B.B. Sethi, Deputy Secretary Home who is present in Court assures the Court that the notification appointing Sh. Gazi Mohd. Umair Deputy Advocate General, Punjab, deputation as Chief Executive Officer, Punjab Wakf Board, would be immediately withdrawn and the steps would be taken to appoint the Chief Executive Officer/Secretary in accordance with Act and Rules immediately. He further undertakes that the advertisement inviting application s would be preferred within 15 days of the advertisement and the appointment made thereafter within three days, after consultation with the Punjab Wakf Board. He seeks short adjournment to comply with the order passed by this Court, as it is stated by him that the appointment made vide notification dated 5.4.2010 was under bona fide mistake and on the wrong advice rendered to the office, stating therein that the applications could be invited by circulation in different offices from the Punjab State. On request, adjourned to 3.5.2010." The application has been filed, pointing out that the order suffers from error, apparent on the face of its, as this Court ordered the appointment of the Chief Executive Officer/Secretary of the Board by following the Rules of 1994. It ha been pointed out, that the Wakf Act, 1964 has been repealed by the Wakf Act, 1995 under which the appointment is required to be made under Section 23 of the Wlkf Act, 1995, which reads as under :- 23. Appointment of Chief Executive Officer and his term of office and other conditions of service. - (1) There shall be a Chief Executive Officer of the Board who shall be appointed by the State Government in consultation with the Board, by notification in the Official Gazette. The term of office and other conditions of service of the Chief Executive Office shall be such as may be prescribed. - (1) There shall be a Chief Executive Officer of the Board who shall be appointed by the State Government in consultation with the Board, by notification in the Official Gazette. The term of office and other conditions of service of the Chief Executive Office shall be such as may be prescribed. The Chief Executive Officer shall be ex officio Secretary of the Board and shall be under the administrative control of the Board." The learned counsel appearing on behalf of the petitioner, however, pointed out that the appointment with Section 23 of the Wakf Act, 1995 as the appointment proposed by the State Government was not approved by the Board. The reading of Section 23 Would show, that the requirement of consultation with the Board, is a statutory requirement and not more formality. In view of the changed circumstances, the respondents are granted one months time, now to appoint the new Chief Executive Officer, after consultation with the Board. If no applications are received from the departmental may be called by publication in the press, if so advised. Adjourned to 13.5.2010." When the matter came up for hearing today, the learned Additional Sh. Gazi Mohd. Umair has again been recommended to be appointed as Chief Executive Officer. The reading of Section 23 of the Wakf Act, 1995 would show, that it is a statutory appointment, which is required to be made by the State Government in consultation with the Board. In spite of the fact that on earlier occasion, the proposal of the State Government for appointment of Sh. Mohd. Umair as Chief Executive Officer was not accepted by the Board, in pursuance of the order dated 9.4.2010, same name has been sent to the Punjab Wakf Board for its approval. This action clearly shows, that the order passed by this Court, directing that in absence of any applications, from departmental candidate , the applications be called for by publication in the Press, has not been complied with. Rather, recommendation, which was not accepted by the Board and this Court, has been reiterated. The proceedings referred to above clearly show that the action of the State Government is not bona fide, and a deliberate attempt is being made to show disrespect to the order passed by this Court, and avoid statutory duty to appoint Chief Executive Officer/Secreataty of Wakf Board. The proceedings referred to above clearly show that the action of the State Government is not bona fide, and a deliberate attempt is being made to show disrespect to the order passed by this Court, and avoid statutory duty to appoint Chief Executive Officer/Secreataty of Wakf Board. The appointment of Chief Executive Officer is a statutory post in terms of Section 23 of the Wakf Act, 1995 , therefore, some seriousness is excepted from the State Government in the appointment to the post. However, before initiating contempt of Court proceedings, an opportunity is given to the Principal Secretary. Home Department, Punjab, to file an affidavit, explaining his conduct in showing disrespect of the order passed by this Court and not acting bona fide as per the statutory provisions of law in appointing Chief Executive Officer, and also place on record steps taken in this direction after passing of order by this Court. Adjourned to 25.5.2010. Copy of the orderd be given to the learned Additional Advocate General, Punjab, under the signatures of the Court Secretary." 6. In view of the stand taken by the petitioner, and the respondents herein, it would be necessary to interpret Section 23 of the Wakf Act, 1995. 7. Section 23 of the Wakf Act, 1995 , reads as under :- 23. Appointment of Chief Executive Officer and his term of office and other conditions of service. - (I) There shall be a Chief executive Officer of the Board who shall be Muslim and shall be appointed by the State Government, in consultation with the Board, by notification in the Official Gazette. (2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. (3) The Chief Executive Officer shall be ex office Secretary of the Board and shall be under the administrative control of the Board." 8. The State Government inters of Section 23 of the Wakf Act, 1995 is statutory bound to appoint the Chief Executive Officer of the Board, who shall be a Muslim and his appointment is to be made by the State Government, in consultation with the Board. 9. The terms of office and other conditions of service of the Chief Executive Officer, are required to be prescribed. He has to perform the duties of ex officio Secretary of the Borard, under the administrative control of the Board. 10. 9. The terms of office and other conditions of service of the Chief Executive Officer, are required to be prescribed. He has to perform the duties of ex officio Secretary of the Borard, under the administrative control of the Board. 10. No rules have been framed regarding appointment. In absence of any rules or regulations, permitting the appointment by deputation or to hold a post by deputation, the appointment to the post can only be made by the competent authority by inviting applications from eligible persons. 11. In case any appointment is to be made by transfer a deputation i.e. the other modes of appointment a specific provision is required to be made. In absence thereof, the appointment can only be made by calling applications of eligible persons. There is no condition under Section 23 of the Wakf Act, 1995 , that appointment is to be made from the Government employees only by way of deputation or inviting applications. The procedure adopted is per-se violative of Articles 14 and 16 of the Constitution, as it denies the right of consideration for appointment of eligible persons. 12. As there was some misunderstanding about the interpretation of Section 23 of the Wakf Act, 1995, the respondents are granted further time of three months to appoint the Chief executive Officer, Punjab Wakf Board strictly in accordance with the provisions of Section 23 of the Wakf Act, 1995 by inviting applications from the eligible persons by publication in the press. 13. It is made clear, that no further time shall be granted under any circumstances.