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2011 DIGILAW 359 (CAL)

K. Abdul Rehman v. The Lieutenant Governor

2011-03-14

JYOTIRMAY BHATTACHARYA

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JUDGMENT :- Jyotirmay Bhattacharya, J. The legality and/or validity of the notification issued by the Lt. Governor, A & N Islands on 2nd June, 2010 whereby five persons were appointed as members of the Wakf Board in the Union Territory of A & N Islands with immediate effect, has been challenged by the petitioner herein in this writ petition. The petitioner claims that since the petitioner represents an eminent Muslim organization, the petitioner has every right to file the instant writ petition. The petitioner has complained that the selection of members of the Wakf Board was made by the concerned authority arbitrarily and in violation of provisions contained in Articles 14, 15, 19 and 21 of the Constitution of India. The petitioner further complains that the persons who were appointed as members of the said Board were not selected in accordance with the provisions of Wakf Act, 1995. Under such circumstances, the petitioner has filed this writ petition praying for quashing of the impugned notification. This writ petition was disposed of earlier at the Motion stage by Justice S.P. Talukdar, as His Lordship then was, on 15th June, 2010. After considering the legality and/or validity of the appointment of each member of the Wakf Board very meticulously His Lordship rejected this writ petition. However, the said order was not maintained in appeal as the Hon’ble Appeal Court, while considering the Appeal being MAT No.044 of 2010, was of the view that the dispute involved in this writ petition was required to be considered after exchange of affidavits between the parties. Accordingly, the order which was impugned in the said appeal was set aside. The parties were given liberty to file their respective affidavits in this writ petition. Pursuant to the aforesaid directions, passed in the said appeal, affidavits have been exchanged between the parties and thereafter this matter was placed for hearing before this Court for consideration afresh. Let me now consider the merit of this writ petition afresh in the light of the pleadings of the respective parties in their affidavits. Before considering the legality of such appointment of the members in the Wakf Board, this Court wants to consider the locus of the petitioner to maintain this writ petition. Let me now consider the merit of this writ petition afresh in the light of the pleadings of the respective parties in their affidavits. Before considering the legality of such appointment of the members in the Wakf Board, this Court wants to consider the locus of the petitioner to maintain this writ petition. The petitioner has not stated in the writ petition that he was aspirant for appointment as a member of the said Board from any of the categories as mentioned in Section 14 of the Wakf Act, 1995. The petitioner has also not claimed that though he had the right to be considered for such appointment as a member of the said Board but he was ignored. He simply stated in the writ petition that he has right to maintain the writ petition as he represents an eminent Muslim organization. In my considered view this solitary statement made by the petitioner in the writ petition, is not sufficient enough to establish his locus to maintain the writ petition. Unless the petitioner establishes that he was aspirant for such appointment and he was not considered though he was an eligible candidate for such appointment, his right to challenge the legality of appointment of the members in the Wakf Board, cannot be held to have matured, particularly when this writ petition was not filed in the nature of Public Interest Litigation. Thus, this Court holds that the petitioner has failed to establish his locus to maintain this writ petition. Let me now consider the merit of this writ petition with regard to the challenge regarding the legality of appointment of the members of the said Board in the light of the provision contained in Section 14 of the Wakf Act, 1995. For convenient understanding of the problem involved in this writ petition, this Court feels that Section 14 of the said Act should be set out hereunder. Accordingly, the said provision is quoted:- “14. For convenient understanding of the problem involved in this writ petition, this Court feels that Section 14 of the said Act should be set out hereunder. Accordingly, the said provision is quoted:- “14. Composition of Board.___(1) The Board for a State and the Union territory of Delhi shall consist of__ (a) a Chairperson; (b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of__ (i) Muslim Members of Parliament from the State or, as the case may be, the Union territory of Delhi, (ii) Muslim Members of the State Legislature, (iii) Muslim Members of the Bar Council of the State, and (iv) mutawallis of the wakfs having an annual income of rupees one lakh and above; (c) one and not more than two members to be nominated by the State Government representing eminent Muslim organizations; (d) one and not more than two members to be nominated by the State Government, each from recognized scholars in Islamic Theology; (e) an officer of the State Government not below the rank of Deputy Secretary. (2) Election of the members specified in clause (b) of subsection (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed: Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further that where there are no Muslim Members in any of the categories mentioned in sub-clause (i) to (iii) of clause (b) of sub-section (1), the ex-Muslim Members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college. (3) Notwithstanding anything contained in this section, where the State Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of subsection (1), the State Government may nominate such persons as the members of the Board as it deems fit. (4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under sub-section (3). (5) Where there are Shia wakfs but no separate Shia Wakfs Board exists, at least one of the members from the categories listed in sub-section (1), shall be a Shia Muslim. (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia wakfs and Sunni wakfs and Sunni wakfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. (7) In the case of the Union Territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in sub-section(1): Provided that there shall be one mutawalli as the member of the Board. (8) Whenever the Board is constituted or re-constituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette.” Since this Court is presently dealing with this particular problem with reference to appointment of the members in the Wakf Board in A & N Islands, this Court holds that Subsection(7) of Section 14 of the said Act is relevant for the present purpose. Section 14(7) of the said Act says that in the case of the Union Territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in sub-section(1): Provided that there shall be one mutawalli as the member of the Board. The said provision makes it clear that the Scheme for constitution of the Board of Wakf in A & N Islands is different from the Scheme for constitution of the Board in a State as well as in the Union Territory in Delhi. The said provision makes it clear that the Scheme for constitution of the Board of Wakf in A & N Islands is different from the Scheme for constitution of the Board in a State as well as in the Union Territory in Delhi. As per Section 14(7) of the said Act, such Board in A & N Islands will be constituted by way of appointment of its members in the Board while in the States as well as in Delhi U.T. the Board is required to be constituted partly by election and partly by nomination. From the impugned notification this Court finds that the following members were appointed as members of the Board:- (1) Shri Hamid Ali – Eminent Muslim citizen, Port Blair. (2) Shri Mohd. Tabraiz, Secretary, Bar Association, A & N Islands, Port Blair. (3) Mutawalli, Jama Masjid and Police Masjid, Aberdeen Bazar, Port Blair. (4) Shri K.P. Abdul Samad Faizy–Vice Principal, Routulthul Ulum Arabic College, Wimberlygunj. (5) Shri Mohd. Mansoor, B. Tech. – Principal, ITI, Dollygunj. Re.:- Legality of appointment of Shri Hamid Ali It is contended by the petitioner that Shri Hamid Ali ought not to have been appointed as a member of the said Board as there was no material before the Lt. Governor to show that he represented an eminent Muslim organization at the relevant time of his selection. Though this Court finds that such material was absent before the Lt. Governor at the time when Janab Hamid Ali was appointed as member in the Wakf Board but this Court cannot ignore the affidavit-in-opposition filed by the respondent Nos.1, 3 and 4 herein wherein it is categorically stated that Hamid Ali was associated with all the activities of the Jama and Police Masjid, Port Blair for a long time and he is a life member of the Jama Masjid Committee. Thus, on consideration of the said affidavit, this Court holds that the appointment of Shri Hamid Ali cannot be regarded as illegal and/or arbitrary as he was not only a life member of Jama Masjid Committee but he was also associated with all the activities of the Masjid Committee of Jama and Police Masjid which is an eminent Muslim organization in A & N Islands. Thus, his selection cannot be disturbed. Re.:- Legality of appointment of Mohd. Tabraiz Let me now consider the legality of the appointment of Shri Mohd. Thus, his selection cannot be disturbed. Re.:- Legality of appointment of Mohd. Tabraiz Let me now consider the legality of the appointment of Shri Mohd. Tabraiz, Secretary, Bar Association, A & N Islands, Port Blair, in the Wakf Board. Fact remains that there is no Bar Council in A & N Islands. As such, no appointment of any Muslim member from the Bar Council of these Islands, is possible. Under such circumstances, the Lt. Governor, in my view, had no other option but to appoint an eminent Muslim lawyer practicing in A & N Islands as a member of the Board. The eminence of Mohd., Tabraiz in legal practice in A & N Islands cannot be disputed. He is the Secretary of the Bar Association of the A & N Islands. Thus, when after considering the eminence and integrity of such a lawyer, he was selected for appointment as member of the said Board by the Lt. Governor, this Court holds that the Lt. Governor did not commit any illegality in choosing him for appointment as member of the Board as the object of appointing a Muslim member from the Bar Council of the State as contemplated under Section 14(1) (b) (iii) was practically fulfilled in true sense by such appointment. In fact, appointment of a Muslim lawyer in the Board is necessary for looking after the day to day legal affairs of the Board. Section 14(1) (b) (iii) was introduced in the said Act with the said object. If no appointment is given from this category as there is no State Bar Council in A & N Islands, the object of introducing the said provision in the Act, will remain unfulfilled. As such, the Lt. Governor, rightly appointed the Secretary of the Bar Association of the A & N Islands who is a Muslim lawyer, as a member of the said Board. In my view, the object of said provision was fulfilled by such appointment. As such his appointment cannot be disturbed. Re.:- Legality of appointment of mutawalli Section 14(7) of the said Act provides that one mutawalli shall be appointed as a member of the Board. From the list of the appointed members, this court finds that the mutawalli of Jama Masjid and Police Masjid, Aberdeen Bazar, was appointed as a member in the said Board. It is contended by Mrs. Re.:- Legality of appointment of mutawalli Section 14(7) of the said Act provides that one mutawalli shall be appointed as a member of the Board. From the list of the appointed members, this court finds that the mutawalli of Jama Masjid and Police Masjid, Aberdeen Bazar, was appointed as a member in the said Board. It is contended by Mrs. Nag, learned advocate for the petitioner that there are other Wakfs in A & N Islands having an annual income of more than Rs.1 Lakh and above and as such the Lt. Governor, before selecting the mutawalli of Jama Masjid and Police Masjid, Aberdeen Bazar ought to have recorded his finding as to why the mutawalli of other Wakfs in A & N Islands were not found to be suitable for such appointment. However, it is not the case of the petitioner that Jama Masjid and Police Masjid, Aberdeen Bazar did not have annual income of more than rupees one lakh and as such its mutawalli cannot be selected for such appointment. Thus ligibility of the mutawalli of the said Masjid is not under challenge. Only challenge is whether non-consideration of the mutawallis of other Masjids in A & N Islands having annual income of Rs.1 Lakh and above, vitiates the selection of member from this category? Let me now consider as to how far such submission can be accepted. Reading the provision contained in Section 14 of the said act, this Court finds that no duty was imposed upon the authority concerned to record a finding in the proceeding as to who amongst the mutawallis of different Wakfs having annual income of more than Rs.1 Lakh in A & N Islands, is the most suitable person who can be appointed as member in the Board. Undisputedly, the Jama Masjid and Police Masjid, Aberdeen Bazair had annual income of more than Rs.1 Lakh at the material time. Thus, when the mutawalli of such a Wakf was selected for such appointment, this Court holds that the provision of Section 14 was not infringed by the Lt. Governor in selecting the mutawalli of Jama Masjid and Police Masjid, Aberdeen Bazar as a member of the Board. Section 14 of the said Act does not contemplate that the mutawalli of the Wakf which has the highest income in A & N Islands, should be appointed. Governor in selecting the mutawalli of Jama Masjid and Police Masjid, Aberdeen Bazar as a member of the Board. Section 14 of the said Act does not contemplate that the mutawalli of the Wakf which has the highest income in A & N Islands, should be appointed. Even the said provision does not contemplate that appointment of mutawalli should be made by name. As such, his appointment without mentioning his name, cannot be held to be illegal. As such, this Court does not find any justification to interfere with his appointment. Re.:- Legality of appointment of K.P. Abdul Samad Faizy This Court also does not find much substance in the challenge regarding appointment of Shri K.P. Abdul Samad Faizy as a member of the said Board. Shri K.P. Abdul Samad Faizy is the Vice Principal of Raulathul Uloom Arabic College, Wimberlygunj. He was selected for such appointment as he was considered as a scholar in Islamic theology. The petitioner has failed to produce any material before this Court to show that he was not a recognized scholar in Islamic theology. This Court cannot agree with the petitioner that a Vice Principal of an Arabic College is not a scholar in Islamic theology. Thus, this Court also does not find any illegality in selecting him as a member of the said Board. Re.:- Legality of appointment of Mohd. Mansoor Though the petitioner has contended that Shri Mohd. Mansoor (B.Tech.) ought not to have been appointed as a member of the said Board as he held the rank below the rank of Deputy Secretary but no material has been produced before this Court to substantiate such allegation. Shri Mohd. Mansoor is the Principal, ITI, Dollygunj. His scale of pay has been disclosed by the official respondents in their affidavit to show that his scale of pay is higher than the scale of pay of the Deputy Secretary. There is no effective denial of such claim of the official respondents in his reply. By reading the pleadings of the parties, this Court can safely conclude that the petitioner has failed to produce any material to show that Shri Mohd. Mansoor held a rank below the rank of Deputy Secretary. In the absence of sufficient materials, this Court is unable to hold that the Principal of an Industrial Training Institute holds the rank below the rank of Deputy Secretary of the State. Mansoor held a rank below the rank of Deputy Secretary. In the absence of sufficient materials, this Court is unable to hold that the Principal of an Industrial Training Institute holds the rank below the rank of Deputy Secretary of the State. As such, his appointment also cannot be disturbed. Thus, this Court does not find any illegality in appointing any of the members in the said Board. Before concluding, this Court feels it necessary to consider the submission of Mrs. Nag, learned advocate who tried to impress upon this Court that since the expression ‘appointed’ was used in Section 14(7) of the said Act, the concerned authority before selecting those persons for appointment as members of the Board, ought to have initiated a regular selection process so that the best and most competent person could have been selected through proper competition amongst the eligible candidates from each category. She tried to impress upon this Court that nomination and appointment, carry different meaning. Both the aforesaid expressions were used in different portions of the said provision. According to her, in case of nomination, any person of the choice of the authority can be nominated, but in case of appointment, best candidate should be selected through a process of competition. Though it is true that the expression ‘appointed’ is used in Section 14(7) of the said Act but can it be contended that such appointment should be made after initiating a regular selection process for picking up the best amongst the eligible candidates for such appointment. Let me now consider as to what exactly is meant by appointment in the present context. For finding out the meaning of appointment, this Court feels that various provisions of the Constitution of India may be considered. In fact, the use of the expression “Appointment” in different posts can be noticed under various provisions of the Constitution of India. Say for example, Article 76 of the Constitution of India deals with appointment of Attorney General for India. Article 76(1) of the Constitution of India provides that the President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General for India. Say for example, Article 76 of the Constitution of India deals with appointment of Attorney General for India. Article 76(1) of the Constitution of India provides that the President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General for India. Article 76 thus gives a wide discretion to the President of India to appoint any person who is qualified to be appointed as a Judge of the Supreme Court to be the Attorney General of India. Similarly, if Article 155 of the Constitution of India is consulted then it will appear therefrom that the Governor of a State shall be appointed by the President by warrant under his hand and seal. Similarly Article 124 of the Constitution of India deals with appointment of a Judge in the Supreme Court of India by the President of India. Article 217 of the Constitution of India also deals with appointment of a Judge in the High Court in the State. Article 223 of the Constitution of India provides for appointment of acting Chief Justice by the President of India, Article 224 of the Constitution of India deals with appointment of additional and acting Judges in the High Court by the President of India. Though the expression ‘appointment’ is used in all these provisions of the Constitution of India but can anyone successfully contends before any Court of Law that while selecting any person for his appointment in any of the aforesaid posts, a regular selection process is required to be initiated after inviting applications from suitable eligible candidates therefor and thereafter to select the most suitable person amongst the eligible candidates for such appointment. This, in my view, was never contemplated under any of those provisions of the Constitution of India even though the expression ‘appointment’ was used in those provisions. Any choiced candidate who is considered to be fit and competent for such appointment in those posts by the President of India and upon whom confidence can be reposed by the President can be appointed in those posts, subject to satisfaction of the eligibility criteria of the candidates. Any choiced candidate who is considered to be fit and competent for such appointment in those posts by the President of India and upon whom confidence can be reposed by the President can be appointed in those posts, subject to satisfaction of the eligibility criteria of the candidates. Thus even if the Advisory body recommends the name of somebody for such appointment, the President may ultimately refuse to appoint such recommended candidate, and such selection is immune from challenge in Court of Law, provided however the selected candidate is otherwise eligible for the post. Thus this Court holds that for selection of any person for appointment to those posts under the Constitution, a regular selection process inviting applications from the eligible candidates is not at all warranted though the expression appointment is used in those provisions. It is really absurd to contend that in all cases of appointment, a regular selection process is necessary, as contended by Mrs. Nag., Thus, in my view, though the expression ‘appointed’ is used in Section 14(7) of the said Act, but such selection need not be made through a selection process by inviting application from the eligible candidates. In my view, appointment under Section 14 of the said Act can be given to any choiced candidate upon whom the Central Government has its confidence. Since none of the members of the said Board, in my view is otherwise ineligible for such appointment, this Court does not find any justification to interfere with the constitution of the Board. This Court also does not find any substance in the submission of Mrs. Nag, learned advocate that the entire selection process was vitiated as the erstwhile Board was consulted by the Lt. Governor before selecting those persons for such appointment. This Court is of the view that the modalities for such selection can be fixed by the selecting authority as per his own wisdom. The petitioner has no authority to challenge the legality in laying down the modalities for such selection by the Selection authority, according to his own wisdom. Mrs. Nag, learned advocate also contended that the concerned authority ought to have recorded as to why it abandoned the process for selection by election, though it felt the necessity for such selection by election of some persons from the category of section 14(1) (b) of the said Act. Mrs. Nag, learned advocate also contended that the concerned authority ought to have recorded as to why it abandoned the process for selection by election, though it felt the necessity for such selection by election of some persons from the category of section 14(1) (b) of the said Act. I have already discussed above that in view of Section 14(7) of the said Act, selection of members by election as per Section 14(1) (b) cannot be made in A & N Islands. As such, this part of her submission also cannot be accepted. It was also contended by the petitioner that appointment of the Chief Executive Officer was not given in accordance with law. This Court was informed that validity of the appointment of the Chief Executive Officer has also been challenged before this Court and the said writ petition is still pending. Thus, she wanted to impress upon this Court that if the appointment of Chief Executive Officer is ultimately set aside by this Court, then the show cause notice issued by him and, all follow up actions in connection therewith cannot be maintained. This Court does not find any substance in such submission of Mrs. Nag, as even assuming the appointment of the Chief Executive Officer is quashed by this Court for any reason whatsoever, the actions taken by him, during the tenure of his service as Chief Executive Officer of the Wakf Board, prior to quashing of his appointment, cannot be invalidated because of quashing of his appointment subsequently. Thus, this Court does not find any merit in this writ petition. The writ petition thus stands rejected.