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2017 DIGILAW 2681 (RAJ)

Syed Nazeer Hasan v. State of Rajasthan

2017-12-04

M.N.BHANDARI

body2017
JUDGMENT : M.N. Bhandari, J. By this writ petition, a challenge is made to the Notification dated 09th March, 2016 nominating respondent Nos.3 to 5 as the members of Rajasthan Board of Muslim Wakf (for short "the Wakf Board"). 2. Learned counsel for the petitioners submit that nomination of the non-petitioner Nos. 3 to 5 is under Sections 14(1) (c) and 14(1)(d) of the Waqf Act, 1995 (for short "the Act of 1995"). The non-petitioner Nos.3 to 5 are not in possession of the required qualification as given under Sections 14(1)(c) and 14(1)(d) of the Act of 1995 thus their nominations are illegal. 3. A reference of the documents has been given to show the information under the Right to Information Act, 2005 (for short "the Act of 2005") in regard to the qualification of the non petitioner Nos.3 to 5. 4. The non-petitioner No.3 was in the government service and was working as PTI till voluntary retirement on 04th February, 2016. He was then nominated as member of the Wakf Board on 09th March, 2016. It is within short period of one month after voluntary retirement. He was in government service throughout thus is not falling in any of the categories given under Section 14(1)(c) of the Act of 1995. His nomination is only due to his political affiliation. 5. Learned counsel for the petitioner/s has given a reference of Rule 7 of the Rajasthan Civil Service (Conduct) Rules, 1971 (for short "the Rules of 1971"). As per the provision aforesaid, an employee cannot take part in politics. The bio-data submitted by the non-petitioner No.3 shows his political affiliation and activities while in service. No one can be a member of political party or work otherwise in their association while in service. Ignoring the aforesaid, nomination has been made. 6. In the similar manner, the non-petitioner Nos.4 and 5 were not possessing the required qualification, as given under Section 14(1)(d) of the Act of 1995. They are not recognised scholars in Shiya and Sunni Islamic Theology. It is coming from resume/bio-data given by them. In view of the above, they were not eligible for nomination as members of the Wakf Board. 7. A reference of the judgment of the Karnataka High Court in the case of Karnataka Wakfs Protection Joint Action Committee and Anr. v. State of Karnataka & Ors. reported in 2014 ILR (Karnataka) 2618 has been given. In view of the above, they were not eligible for nomination as members of the Wakf Board. 7. A reference of the judgment of the Karnataka High Court in the case of Karnataka Wakfs Protection Joint Action Committee and Anr. v. State of Karnataka & Ors. reported in 2014 ILR (Karnataka) 2618 has been given. Therein, same issues were considered and decided. 8. Learned Additional Advocate General Mr. Shyam Arya, appearing for the non-petitioner No.1, has opposed this petition. A preliminary objection about maintainability of the writ petition has been taken. 9. It is submitted that a writ of certiorari cannot be filed without a cause to the petitioners. The petitioners are strangers to the subject, rather, it is politically motivated thus the writ petition deserves to be dismissed on the aforesaid ground itself. The petitioners have not prayed for a writ of quo-warrant so as to be entertained and, otherwise, they could have preferred a Public Interest Litigation (PIL) thus the writ petition before the Single Bench is not maintainable. The prayer is to dismiss the writ petition. 10. He further submitted that nomination of the non-petitioner Nos.3 to 5 as Members of the Wakf Board has been made after objective consideration of the candidature and in such matters, where no illegality exists, intervention should not be made by the Court. A reference of the judgment in the case of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors. reported in (2014) 1 SCC 161 has been given. Coming to the merits of the case, learned Additional Advocate General Mr.Shyam Arya referred the bio-data/resume of each of the candidates. It is to demonstrate that they were in possession of required qualification. A specific reference about non-petitioner No.3 has been given to show that he was involved in social activities and work while holding the post in Muslim Rashtriya Manch and Muslim Mahasabha Sansthan, Rajasthan apart from his involvement in the Rajasthan State Employees Federation and Rajasthan Prathmik and Madhyamik Shikshak Sangh, Rajasthan. 11. It is further stated that the word "social work" cannot be defined by the petitioners or even by the State Government so as the Court, thus according to him, the word "social work" cannot be defined by anyone and, accordingly, the prayer is not to cause interference in the impugned order. 12. A reference of the qualification of the non-petitioner Nos. 12. A reference of the qualification of the non-petitioner Nos. 4 and 5 has also been given to demonstrate that they are scholars in Shiya and Sunni Islamic Theology thus have rightly been nominated as Members of the Wakf Board. The prayer is accordingly to dismiss the writ petition. 13. Learned counsel for the respondent Board submits that they have nothing to do with selection of members of the Wakf Board. 14. Learned counsel for the respondents No.3 has opposed the writ petition. A reference of Section 14(1)(c) of the Act of 1995 has been given to show the qualifications for nomination as the member of the Wakf Board. According to him, one should be Muslim and nominated by the State Government as the Member of Board. The nomination is made after objective satisfaction of the State Government thus could not have been questioned by the petitioners. 15. It is further stated that even if bio-data of the non-petitioner NO.3 is looked into, he was socially active and description of various posts held by him and activities undertaken by him have been reflected and, otherwise, referred by learned Additional Advocate General Mr.Shyam Arya in his arguments. The word "social work" is elaborately discussed to show that even as a Secretary to the Rajasthan Rajya Karamchari Mahasangh and also as President of Rajasthan Prathmik and Madhyamik Shikshak Sangh, Rajsthan, the non-petitioner No.3 had undertaken social activities for the benefit of employees. A reference of other organisations referred in the bio-data has also been given to show that the non-petitioner NO.3 was a social worker thus has rightly been nominated. 16. Learned counsel for the non-petitioner NO.3 has also raised objection about maintainability of the writ petition as raised by Mr.Shyam Arya, AAG. It is further added that the writ petition does not disclose the basis of its filing. They have not disclosed as to when the information about the non-petitioner No.3 was sought. The writ petition is, otherwise, politically motivated thus may be dismissed. 17. Learned counsel for the non-petitioner Nos.4 and 5 has also opposed the writ petition. 18. A reference to the bio-data/resume of the respondent Nos.4 and 5 has been given. It is submitted that they are scholars of Shiya and Sunni Islamic Theology thus were rightly nominated as Members of the Wakf Board. 17. Learned counsel for the non-petitioner Nos.4 and 5 has also opposed the writ petition. 18. A reference to the bio-data/resume of the respondent Nos.4 and 5 has been given. It is submitted that they are scholars of Shiya and Sunni Islamic Theology thus were rightly nominated as Members of the Wakf Board. Both are female and as per the Act of 1995, at least, two members need to be from their gender hence consideration of candidature of the non-petitioner Nos.4 & 5 is against the quota meant for female candidates. The writ petition against their nomination is in ignorance of the facts aforesaid. 19. The objection about delay in filing of the writ petition has also been taken and, accordingly, the prayer is made to dismiss the writ petition. It is more so when, the non-petitioner Nos.4 & 5 are Alimma and Molimma as per the certificate given by them. The aforesaid shows their devotion to work as scholar and it is for Shiya and Sunni Islamic Theology. The qualification aforesaid has been ignored by the petitioners while filing the writ petition. 20. I have considered the rival submissions made by learned counsel for the parties and scanned the matter carefully. 21. The brief facts of the case have already been given thus need not to be reiterated. 22. The respondent No.3 has been nominated under Section 14(1)(c) and the non-petitioner Nos.4 & 5 have been nominated under Section 14(1)(d) of the Act of 1995. Section 14(1) of the Act of 1995 is thus quoted, as otherwise, referred by both the parties : "14. 22. The respondent No.3 has been nominated under Section 14(1)(c) and the non-petitioner Nos.4 & 5 have been nominated under Section 14(1)(d) of the Act of 1995. Section 14(1) of the Act of 1995 is thus quoted, as otherwise, referred by both the parties : "14. Composition of Board.-(1) The Board for a State and 3 [the National Capital 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, 3 [the National Capital Territory of Delhi]; (ii) Muslim Members of the State Legislature; (iii) Muslim members of the Bar Council of the concerned State or Union territory: Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory, and] (iv) Mutawallis of the 1 [auqaf] having an annual income of rupees one lakh and above. [Explanation I.-For the removal of doubts, it is hereby declared that the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category. [Explanation I.-For the removal of doubts, it is hereby declared that the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category. Explanation II.-For the removal of doubts it is hereby declared that in case a Muslim member ceases to be a Member of Parliament from the State or National Capital Territory of Delhi as referred to in sub-clause (i) of clause (b) or ceases to be a Member of the State Legislative Assembly as required under sub-clause (ii) of clause (b), such member shall be deemed to have vacated the office of the member of the Board for the State or National Capital Territory of Delhi, as the case may be, from the date from which such member ceased to be a Member of Parliament from the State National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case may be;] (c) one person from amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, to be nominated by the State Government; (d) one person each from amongst Muslims, to be nominated by the State Government from recognised scholars in Shia and Sunni Islamic Theology; (e) one person from amongst Muslims, to be nominated by the State Government from amongst the officers of the State Government not below the rank of Joint Secretary to the State Government;] (1A) No Minister of the Central Government or, as the case may be, a State Government, shall be elected or nominated as a member of the Board: Provided that in case of a Union territory, the Board shall consist of not less than five and not more than seven members to be appointed by the Central Government from categories specified under sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1): Provided further that at least two Members appointed on the Board shall be women: Provided also that in every case where the system of mutawalli exists, there shall be one mutawalli as the member of the Board.]" 23. The question for my consideration is as to whether the non-petitioner No.3 has rightly been nominated under Section 14(1) (c) of the Act of 1995. 24. It is admitted that he has been nominated taking him to be a social worker. The question for my consideration is as to whether the non-petitioner No.3 has rightly been nominated under Section 14(1) (c) of the Act of 1995. 24. It is admitted that he has been nominated taking him to be a social worker. It is not in dispute that his nomination is made by the State Government being a Muslim and, merely for that reason, the scrutiny as to whether he was in possession of required qualification cannot be ousted. It may be that the State Government has made scrutiny of the candidature after taking into consideration the bio-data/resume. 25. The perusal of the bio-data submitted by the petitioners reveals that the non-petitioner was in service as PTI till 04th February, 2016. If the details given in the bio-data are looked into then it would reveal that as a Chairperson, Muslim Mahasabha Sansthan Rajasthan, he worked to connect the Muslim society with BJP, the political party. The detail furnished by him shows projection of the activity with the political party. No doubt, it is true that the non-petitioner No.3 was a General Secretary of the Rajasthan Rajya Karamchari Mahasangh and also President of Rajasthan Prathmik and Madhyamik Shikshak Sangh, Rajsthan, but, no social work undertaken by him has been described. 26. The question is as to whether holder of these two posts can be taken to be social worker. The respondent No.3 has further made disclosure that he was in Muslim Rashtriya Manch and worked as a Director. 27. Learned Additional Advocate General Mr.Shyam Arya was asked as to whether any government servant can have alliance with political party or an organisation, that too, while in service. Mr. Shyam Arya, AAG submits that the government servant can alliance him with philosophy of a political party and can actively participate to get vote for it. He has further stated that social work cannot be defined by the petitioners, respondents, the State Government or even the Court. 28. The statement aforesaid is quite relevant and shows that even the Government of Rajasthan could not define the word "social work" and such constraint has been imposed even on the Court, meaning thereby, without defining the social work, nomination has been made by the State Government. 29. I fail to understand the arguments from the side of the Government to that effect while supporting the nomination of the non-petitioner No.3. 29. I fail to understand the arguments from the side of the Government to that effect while supporting the nomination of the non-petitioner No.3. The constrain to define the word "social work" has been imposed even on the Court. No employee can take part in the politics. It is not so permissible under Rules of 1971. The rule aforesaid is quoted hereunder for ready reference : "7. Taking part in politics and elections.- (1) No Government servant shall be a member of, or be otherwise associated with, any political party or any organization which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity. (2) It shall be the duty of every Government servant to endeavor to prevent any member of his family from taking part in, subscribe in aid of, or assist in any other manner any movement or activity which is, tends directly or indirectly to be subversive of the Government as by law established and where a Government servant is unable to prevent a member of his family from taking part in, or subscribing in aid of or assisting any other manner, any such movement or activity, he shall make a report to that effect to the Government. (3) If any question arises whether a party is a political party or whether any organization takes part in politics or whether any movement or activity falls within the scope of sub-rule (2), the decision of the Government thereon shall be final. (4) No Government servant shall canvass or otherwise interfere with or use his influence in connection with, or take part in an election to any legislature or local authority; Provided that - (i) a Government servant qualified to vote at such election may exercise his right to vote, but where he does so, he shall give no indication of the manner in which he proposes to vote or has voted; (ii) a Government servant shall not be deemed to have contravened the provisions of this rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force. Explanation. Explanation. -This display by a Government servant on his person, vehicle or residence of any electoral symbol shall amount to using his influence in connection with election, within the meaning of this sub-rule. Note.- (i) A Government servant who has reason to believe that attempts are being made to induce him to break the provisions of this rule by or on behalf of an official superior or superiors shall report the facts to the Chief Secretary to Government of Rajasthan. (ii) Proposing or seconding the nomination of a candidate at an election or acting a Polling agent shall be deemed as an action participating in the election." 30. Perusal of the bio-data of the non-petitioner NO.3 shows his political affiliation throughout and at least from the year 2004. It is not so permissible under the Rules of 1971 and, in any case, even if it is ignored to see whether he was has done some social work, no description exists other than of holding the post in same organisations. The State Government was under an obligation to enquire into the matter before nominations are made because it should not be in violation of the provisions of law. There is nothing on record to show that whatever declarations made by the candidates, were subjected to any scrutiny. It cannot be considered to be objective consideration when according to learned Additional Advocate General, social work cannot be defined even by the State Government. 31. Learned counsel for the respondent Nos.4 and 5 has also supported the nomination by referring to their qualifications and, more specifically, as Alimma and Molimma. 32. The question is as to whether they have considered to be recognised scholars in Shiya and Sunni Islamic Theology. The word "scholar" has not been defined in the Act of 1995 thus it needs to be taken from the dictionary or from relevant material, which includes, Outlines of Islamic Culture, as was considered by the Karnataka High Court in the case of Karnataka Wakfs Protection Joint Action Committee and Anr. (supra). The word "Theology" was also taken into consideration and it has been decided as to who can be said to be scholar in Islamic Theology in Shiya and Sunni, which are as under : "22. To make a nomination under Section 14(1)(d) of the Act, the person should be a Recognised Scholar in Islamic Tehology. (supra). The word "Theology" was also taken into consideration and it has been decided as to who can be said to be scholar in Islamic Theology in Shiya and Sunni, which are as under : "22. To make a nomination under Section 14(1)(d) of the Act, the person should be a Recognised Scholar in Islamic Tehology. In teh Book titled "Outlines of Islamics Culture" Second Edition, by AMA Shushtery, Professor of Iranian Language and Literature, University of Mysore, it is noted that Theology has been sytemized into a science. Under this head, the following subjects have to be studies by those desirous of knowing it for practical purposes : (1) A commentary on Quran (2) Pertaining to tradition (3) Fundamental principles of Muslim Law based on the Quran, the Tradition, consensus of opinion and analogy. (4) Rules relating morals, civil and criminal law. (5) Scholastic theology based on the knowledge of unity of God, His attributes, the word of God, freedom of will, the sacred books, the Prophets, the angels, the punishment and the reward, the resurrection, etc. (6) A brief study of logic." 33. The recognized scholars of any Theology is required for nomination. It cannot on the qualification possessed by the non-petitioner Nos.4 & 5. If their qualifications are looked into, it is not sufficient to be recognised as scholars of Shiya and Sunni Islamic Theology. The Alimma and Molimma cannot be recognised as scholar in the Islamic Theology. 34. In view of the above, I do not find that nomination of the non-petitioner Nos.3 to 5 under Section 14(1)(c) and (d) of the Act of 1995 is in consonance to the provisions of the law. The scrutiny of the nomination can be made by this Court and can pass appropriate order, if it is not in consonance to the provision of law. The view aforesaid is supported by the judgment referred by Mr.Shyam Arya, AAG in the case of Central Electricity Supply Utility of Odisha (supra). No doubt, it is true that scrutiny of the qualifications cannot be made in common parlance. From the record, it comes out that the candidates nominated are not in possession of the required qualification, thus intervention can be made by this Court. 35. Here, the question comes about maintainability of the writ petition and delay therein. 36. No doubt, it is true that scrutiny of the qualifications cannot be made in common parlance. From the record, it comes out that the candidates nominated are not in possession of the required qualification, thus intervention can be made by this Court. 35. Here, the question comes about maintainability of the writ petition and delay therein. 36. The writ petition has been filed by non-else but by members of Muslim community concerned to the Muslim Wakf Board. No doubt, it is true that in the prayer clause, the writ of quo-warranto has not been mentioned, but, it is not even for writ of certiorari. What writ can be issued by the Court, can be decided from the facts and herein, if the nominations have been challenged on the ground of qualification, it would be nothing but a writ of quo-warranto. It is not necessary that a PIL has to be filed for it, rather, writ can be filed by the individual concerned to the activity of the Board. Accordingly, I find that the writ petition in the hands of the petitioners is maintainable. 37. The issue of delay has also been raised by learned counsel for the non-petitioner Nos.4 & 5. The nomination of non-petitioner Nos.3 to 5 was made on 16th March, 2016. The writ petition for it was filed in the month of July, 2017. 38. The facts available on record, however, show that before filing of the writ petition, the petitioners made an application to the non-petitioners to seek information about non-petitioner Nos.3 to 5. It was by maintaining an application under the Right to Information Act 2005. In view of the above, the writ petition was filed after getting the information. 39. It is not a writ petition which can be thrown out on the ground of laches, accordingly, the writ petition is allowed. The nomination of the non-petitioner Nos.3 to 5 are set aside. 40. The State Government would, however, be at liberty to make nomination afresh, but, care would be taken to nominate those who qualify in different categories and, while doing so, they would select two female candidates from an amongst those who are in possession of the required qualification in different categories.