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2011 DIGILAW 361 (CAL)

Lieutenant Governor v. Shri K. A. Abdul Salam

2011-03-14

JYOTIRMAY BHATTACHARYA, R.N.BHATTACHARYA

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JUDGMENT:- Jyotirmay Bhattacharya, J. By the impugned order dated 5th January, 2011 passed by a learned Single Judge of this Court in WP No.10017 (W) of 2010, the learned Trial Judge quashed the order No.3289 dated 21st October, 2009 issued by the Assistant Secretary, Andaman and Nicobar Administration by which the respondent No.4 herein was appointed as the Chief Executive Officer, Andaman and Nicobar Islands, Wakf Board. The learned Trial Judge held that the respondent No.4 therein who was appointed as Chief Executive Officer of the Wakf Board was not eligible for appointment to the said post as he had no bachelor degree from any of the recognized Indian universities. The Lieutenant Governer, Andaman and Nicobar Islands felt aggrieved against the said order. Hence, the instant appeal has been filed by the Lieutenant Governor of Andaman and Nicobar Islands, Heard the learned advocates of the parties, Considered the materials on records including the order impugned. Let me now consider as to how far the learned Single Judge was justified in passing the impugned order in the facts of the instant case. By an order No.3289 dated 21st October, 2009 issued by the Andaman and Nicobar Administration, Shri M. Akhtar Hussain, Assistant Director (Admn) attached to the office of the Superintending Engineer, Electricity Department was appointed by the Lieutenant Governor (Administrator), A & N Islands, as the Chief Executive Officer, Andaman and Nicobar Islands Wakf Board in Ex-Officio capacity and without any extra remuneration with immediate effect vice Smti Safina Khan, who was ordered to hold the post, vide Administrator’s order No.698 dated 20.02.2006 in addition to his own assignment as Assistant Director (Admn) in the Office of the Superintending Engineer, Electricity Department. The appointment of Shri M. Akhtar Hussain as Chief Executive Officer of the A & N Islands Wakf Board was challenged by the writ petitioner on the ground that Shri M. Akhtar Hussian being not a graduate from any of the recognized Indian Universities is ineligible for such appointment to the post of Chief Executive Officer. Let me now consider as to how far such contention of the petitioner is acceptable. Section 23 of the Wakf Act 1995 deals with appointment of Chief Executive Officer and his term of office and other conditions of service, Section 23 of the said Act is set out hereunder: “23. Let me now consider as to how far such contention of the petitioner is acceptable. Section 23 of the Wakf Act 1995 deals with appointment of Chief Executive Officer and his term of office and other conditions of service, Section 23 of the said Act is set out hereunder: “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 a 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-officio Secretary of the Board and shall be under the administrative control of the Board.” On perusal of the said provision, this Court finds that no person other than a Muslim can be appointed as Chief Executive Officer of the Board. The appointment of the Chief Executive Officer of the Board is required to be made by the State Government in consultation with the Board, by notification in the Official Gazettee. Sub-section 2 of Section 23 provides that the term of office and other conditions of service of the Chief Executive Officer will be such as may be prescribed. The terms and conditions of service of the Chief Executive Officer of the Board are prescribed in Rule 7 of A & N Islands Wakf Rules, 2002. The relevant parts of the said Rule with which we are presently concerned herein are Rule 7(1), Rule 7 (2), Rule 7(3) and Rule 7(5) which are set out hereunder:- “7. Terms and conditions of service of the Chief Executive Officer of the Board: (1) the appointment to the post of Chief Executive Officer under sub-section (2) of Section 23 shall be made by the Government in consultation with the Board:- (a) by transfer on deputation of a Government Servant; or (b) by appointment of a Government Servant, or (c) by open recruitment after the post is advertised by the Board in the newspaper having circulation in Andaman and Nicobar Islands. (2) to be eligible for appointment to the post of Chief Executive Officer, a candidate:- (a) Must be a citizen of India; (b) Must be a Muslim; ( c) Must hold a Bachelor’s degree of any of the recognized Indian Universities or hold of any diploma or degree of any foreign University, which in the opinion of the Government is equivalent to, or higher than, the aforesaid Bachelor’s degree. (d) Must have the knowledge of Urdu and English. (3) where the Chief Executive Officer is appointed under clause (a) or clause (b) of sub-rule (1), he shall not be an Officer below the rank of Assistant Secretary of the Andaman and Nicobar Administration.” (4)…… (5) Where the Chief Executive Officer is appointed by open recruitment – (a) he should not be below the age of 45 years. (b) he shall, before entering upon his office, be required to produce a certificate of physical fitness from the Medical Superintendent of the Government Hospital. (c) He shall be on probation for a period of two years from the date of his appointment and he may be confirmed on the recommendations of the Board.” Rule 7(1) of the said Rules provides that the Government in consultation with the Board may appoint Chief Executive Officer in the Board from any of the three options as mentioned in the said Rules. Those options are (1) by transfer on deputation of a Government Servant or (2) by appointment of a Government Servant or (3) by open recruitment after the post is advertised by the Board in the newspaper having circulation in A & N Islands. In the present case such appointment was made from the second alternative option mentioned above i.e. by appointment of a Government Servant. Rule 7(3) of the said Rules provides that where the Chief Executive Officer is appointed under Clause (a) or Clause (b) of Sub-rule (1), he shall not be an officer below the rank of Assistant Secretary of A & N Administration. The said eligibility criteria is satisfied in the instant case as Shri M. Akhtar Hussain who was appointed as the Chief Executive Officer in the A & N Islands Wakf Board was the Assistant Director(Administration) attached to the office of the Superintending Engineer, Electricity Department. Admittedly, Assistant Director (Administration) is a post which is not below the rank of Assistant Secretary of A & N Islands. Admittedly, Assistant Director (Administration) is a post which is not below the rank of Assistant Secretary of A & N Islands. As such, this part of the said Rule has not been violated by appointing Shri M. Akhtar Hussain as Chief Executive Officer of the said Wakf Board. Now a question has come up for consideration as to whether the eligibility criteria which is prescribed under Rule 7(2) as aforesaid is also applicable to the appointment of Chief Executive Officer either by way of transfer on deputation of a government servant or by appointment of a government servant. According to Mr. Mandal, learned Government Pleader, the eligibility criteria as laid down in Rule 7(2) of the said Rule , is applicable only in case of appointment by open recruitment as contemplated in the last alternative option as mentioned in Rule 7(1) (c) of the said Rule. We cannot agree with such submissions of Mr. Mandal, learned Government Pleader as Rule 7(2) of the said Rule does not give any such indication that the said eligibility criteria is applicable only in case of direct recruitment to the post of Chief Executive Officer in the Board. Rather on conjoint reading of the provisions contained in Rule 7(1), 7(2), 7(3) and 7(5) of the said Rule, this Court is of the view that the eligibility criteria which is mentioned in sub-rule (2) of Rule 7 of the Rule is applicable to the appointment in the post of Chief Executive Officer from any of the said three categories as mentioned in Rule 7(1) of the said Rule. Thus, in our view, when any government servant is appointed to the post of Chief Executive Officer, he must not only be a Muslim but also must satisfy the following eligibility criteria namely; (i) He must not be an officer below the rank of Assistant Secretary of A & N Administration. (ii) Must be a citizen of India, (iii) Must hold a bachelor degree of any of the recognized Indian Universities or hold of any diploma or degree in foreign University which in the opinion of the government is equivalent to or higher than the aforesaid Bachelor’s degree. (iv) He must have the knowledge of Urdu and English. Unless all the aforesaid criteria are fulfilled, no government servant can be appointed as Chief Executive Officer in the Board. (iv) He must have the knowledge of Urdu and English. Unless all the aforesaid criteria are fulfilled, no government servant can be appointed as Chief Executive Officer in the Board. In other words, in case of appointment of a Government Servant; be it on deputation or otherwise, he will have to satisfy both the eligibility criteria as mentioned in Rule 7(2) and 7(3) of the said Rules. Since Shri M. Akhtar Hussain who was appointed as Chief Executive Officer by the Administrator, does not hold a bachelor degree from any of the recognized Indian Universities, which is one of the conditions as mentioned in Rule 7(2) of the said Rule, he could not have been appointed as the Chief Executive Officer in the Board even though he satisfied the other eligibility criteria as mentioned in Rule 7(2) and 7(3) of the said Rule. If the entire provision of Rule 7 is considered minutely then it will be crystal clear that the eligibility criteria mentioned in sub-rule (2) thereof is the general eligibility criteria which is applicable uniformly to, all appointments, whether it is made by way of deputation of a government officer or by way of appointment of a government officer or by way of direct recruitment, as mentioned in sub-clause (1) (a), (b) and (c) thereof. This will be further clarified, if the other sub-rules thereunder are considered. Sub-rule (3) thereof lays down additional criteria for the Government Officers on deputation as indicated in sub-rule (1) (a) and also for appointment of the Government Officer as indicated in sub-rule (1) (b) thereof. Similarly, sub-rule (5) lays down additional eligibility criteria for direct recruit. The age limit criteria is applicable to the direct recruitment, but such age limit is not a criteria for appointment from the other two categories i.e. (1) government officer on deputation and (2) government officer. Thus if we have to accept the submission of Mr. Mandal learned Government Pleader that eligibility criteria mentioned in sub-rule (2) thereof was laid down only for the direct recruit, then there would not have any occasion to introduce any additional sub-rule viz. sub rule (5) for direct recruitment. Accordingly, we do not find any merit in the submission of Mr. Mandal, learned Government Pleader. Mandal learned Government Pleader that eligibility criteria mentioned in sub-rule (2) thereof was laid down only for the direct recruit, then there would not have any occasion to introduce any additional sub-rule viz. sub rule (5) for direct recruitment. Accordingly, we do not find any merit in the submission of Mr. Mandal, learned Government Pleader. Under such circumstances, this court holds that the learned Trial Judge did not commit any illegality in quashing the appointment of Shri M .Akhtar Hussain as Chief Executive Officer of the Andaman and Nicobar Islands Wakf Board. The appeal thus fails. Accordingly, both the appeal and the application for stay stand disposed of.