ORDER : (Goutam Bhaduri, J.) Heard. 1. Challenge in this petition is to the Rule 7 (a) of the Chhattisgarh State Waqf Rules, 2020 (hereinafter referred to as ‘the Rules, 2020’) that it is repugnant to Section 23 (1) of the Waqf Act, 1995 (hereinafter referred to as ‘the Act, 1995’). 2. In order to evaluate the facts the relevant provisions of Rule 7 (a) of the Rules, 2020 framed by the State of Chhattisgarh are reproduced hereinbelow:- 7. The terms and conditions of Service of Chief Executive Officer.- The appointment, terms and conditions of service of Chief Executive Officer under sub-section (2) of Section 23 of the Act shall be as given below:- (a) There shall be a Chief Executive Officer by the Government on deputation who shall be a Muslim Government Servant not below the rank of Deputy Collector. xxx xxx xxx xxx xxx xxx xxx xxx xxx 3. The above Rule is claimed to be ultra vires as it goes beyond the scope of Section 23 of the parent Act, 1995. In order to adjudicate the relevant part of statute under lis, Section 23 of the Act, 1995 would also be relevant and is reproduced hereinunder:- 23. Appointment of Chief Executive Officer and his term of office and other conditions of service.- (1) There shall be a fulltime Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation. (2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. 4. The submission of the petitioner is that the State Government in exercise of power under Section 109 of the Act, 1995 has framed the Rules wherein Section 23 (1) of the Act, 1995 prescribes for full-time Chief Executive Officer of the Board, who is to be appointed. 4. The submission of the petitioner is that the State Government in exercise of power under Section 109 of the Act, 1995 has framed the Rules wherein Section 23 (1) of the Act, 1995 prescribes for full-time Chief Executive Officer of the Board, who is to be appointed. Without any further dilution, necessarily person should be a Muslim and is required to be appointed by the State Government by notification in the official Gazette from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government. The Section also provides that in case of non-availability of a Muslim Officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation. He would further submit that Section 23 of the Act, 1995 when is compared to the Rule 7 (a) of the Rules, 2020 it shows that the State Government has prescribed the term of office and other conditions of service of the Chief Executive Officer. Under sub-section (2) of Section 23 of the Act, 1995 the prescription has been made that the Chief Executive Officer shall not be below the rank of Deputy Collector. The submission is that when the Central Act specifically engrafts that the Chief Executive Officer who apart from being a Muslim is to be a Deputy Secretary to the State Government, the same cannot be substituted by the State through sub-ordinate legislation by Deputy Collector. He would further submit that in respect of the removal of Chief Executive Officer that since Respondent No.3 already has been relieved as on date, his prayer is only confined to the vires of Rule 7 (a) of the Rules, 2020. He would further submit that under the circumstances Rule 7 (a) of the Rules, 2020 is required to be declared as ultravires. He placed his reliance in the law laid down by the Supreme Court in the matter of Union of India and others Versus S. Srinivasan { (2012) 7 SCC 683 } and would submit that when the Rule goes beyond the rule making power conferred by the statute, the same is liable to be declared ultravires. He placed his reliance in the law laid down by the Supreme Court in the matter of Union of India and others Versus S. Srinivasan { (2012) 7 SCC 683 } and would submit that when the Rule goes beyond the rule making power conferred by the statute, the same is liable to be declared ultravires. He would further submit that when the Rules made by the State, supplants any provision for which power has not been conferred and where source of power has also wrongly been adopted by the State, the Rule should be held ultravires. 5. Per contra, learned Additional Advocate General appearing for the State and learned counsel for Respondents No.2 & 3 would submit that the petition is silent about how the rules are repugnant to the Act of 1995. They would further submit that the power to determine the equivalence is not the nomenclature of the post i.e. Deputy Secretary or the Deputy Collector but the various factors for determining and equivalence are required to be evaluated. They would further submit that in a given case, the reading of Section 23 (1) shows that it gives the power to the State to appoint officer on deputation and the post on deputation at any time the officer may be of high rank. They placed reliance in the ratio laid down by the Supreme Court in the matter of Punjab State Power Corporation Limited Versus Rajesh Kumar Jindal and others { (2019) 3 SCC 547 } to submit that the equivalence tests is required to be determined on various scales and there is nothing in the petition to substantiate & evaluate the same. They would further submit that even the State Government by the Entry No.10 & 28 of List III (Concurrent List) of Schedule 7 of the Constitution of India is empowered to make rules and unless the Rules, 2020 are repugnant to the parent Act it cannot be declared ultravires. It is contended that the Rule must be given purposive interpretation which is primarily for the fulfillment of object of the Act of 1995 is for the Waqf. Reliance is also placed in the ratio laid down by the Supreme Court in the matter of Forum for People’s Collective Efforts (FPCE) and Another Vs. It is contended that the Rule must be given purposive interpretation which is primarily for the fulfillment of object of the Act of 1995 is for the Waqf. Reliance is also placed in the ratio laid down by the Supreme Court in the matter of Forum for People’s Collective Efforts (FPCE) and Another Vs. State of West Bengal and Another { (2021) 8 SCC 599 } to submit that as the non-compliance of Section 23 does not provide any consequence, therefore, the said provision is only directory in nature. They would further submit that the pay band of the officers would show that the Deputy Secretary has a pay band of Rs.15600-39100/- and even the Librarian and Account Officers are on the similar pay scale of Rs.15600 – 39100/- except the Grade Pay as per the Chhattisgarh Secretariat Service Recruitment Rules, 2012, therefore, if the equivalence is decided considering the pay band it shows that the Deputy Collector and Deputy Secretary have similar pay scale and the Rule is intravires which are predominantly made to achieve the object of the Act. 6. We have heard learned counsel for the parties at length. 7. The primary reading of Section 23 of the Act, 1995 shows that the Act, 1995 envisaged that the condition put forth for appointment of full-time Chief Executive Officer the mandate is (i) necessarily should be a Muslim; and (ii) shall be appointed by the State Government by notification in the official gazette. Further the Section envisaged that he shall not be below the rank of Deputy Secretary to the State Government and in case of non-availability of Muslim officer of that rank, the Muslim Officer of the equivalent pay-band may be appointed on deputation. Reading of Section 23 (1) shows that part of Section is mandatory which touches upon that the CEO shall be a Muslim and shall be appointed by the State and in respect of certain rank Section 23 (1) of the Act, 1995 stipulates that he shall not be below the rank of ‘Deputy Secretary’. 8. Rule 7 (a) of the Rules, 2020 which is framed by the State purports that the Chief Executive Officer shall be an officer to be appointed by the Government on deputation should be a Muslim and shall not be below the rank of “Deputy Collector”. 8. Rule 7 (a) of the Rules, 2020 which is framed by the State purports that the Chief Executive Officer shall be an officer to be appointed by the Government on deputation should be a Muslim and shall not be below the rank of “Deputy Collector”. The dispute surfaced as to whether the post of Deputy Collector can be held to be equivalent to the Deputy Secretary or the nomenclature would have a conclusive binding effect. 9. The Supreme Court in the matter of Punjab State Power Corporation Limited Versus Rajesh Kumar Jindal and others { (2019) 3 SCC 547 } while dealing in a service law had occasion to consider the principle for equation of posts and the issue of equivalence of posts. The four factors were laid down at para 21 of the order which are reproduced hereinbelow:- 21. It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative: (i) The nature and duties of a post; (ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) The minimum qualifications, if any, prescribed for recruitment to the post; and (iv) The salary of the post (vide Union of India v. P.K. Roy [Union of India v. P.K. Roy, AIR 1968 SC 850 ]). 10. The initial challenge of Respondent No.3 who was subsequently removed he was at pay band of Rs.15600- 39100/- and grade pay of Rs.5400/-. The schedule of pay scale shows that the payment of the Deputy Secretary is Rs.15600-39100/- and Grade Pay of Rs.7600/- and in respect of the Librarian, whose pay scale is equivalent to Deputy Collector i.e. Rs.15600-39100/- and have a grade pay of Rs.5400/-. The pay scale, therefore, on which the Respondent No.3 was appointed was of the pay scale of Deputy Secretary. The principle which is laid down that the issue of equivalence of post which is required to be ascertained the nature and duties of the post and apart from the responsibilities and powers exercised by the officer holding a post minimum qualification and salary. The principle which is laid down that the issue of equivalence of post which is required to be ascertained the nature and duties of the post and apart from the responsibilities and powers exercised by the officer holding a post minimum qualification and salary. The salary prima facie shows that the pay scale was same that of Deputy Secretary and the post of Deputy Collector on which Respondent No.3 was appointed and the nature of duties, responsibilities and minimum qualification, the petition is silent as to how the Deputy Secretary and the Deputy Collector will fall in different compartment or equivalence. When the petition is to declare certain provisions of Rules as ultravires on the contrary the presumption would be in favour of the State that the Rules made therein were intravires unless it is categorically pointed out by the petitioner. 11. We went through the initial act namely the Wakf Act, 1954 (for short ‘the Act, 1954’) wherein Section 21 postulates that there shall be Secretary to the Board who shall be a Muslim and shall be appointed by the State Government in consultation with the Board. This Section stands amended by the Act, 1995 wherein scope was widened for appointment of a CEO. The Rules of 2020 by the State of C.G. which are made under Section 109 of the Wakf Act, 1995 specifically empowers the State Government to make rules by notification in the Official Gazette in order to carry out the purposes of the Act. Meaning thereby sub-section (2) (v) of Section 109 of the Act, 1995 postulates that in particular and without prejudice to the generality of the foregoing powers, such rules may provide for terms and conditions of service of CEO under sub-section (2) of Section 23 of the Act, 1995. The relevant part of Section 109 is reproduced hereunder:- 109. Power to make rules.- (1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act, other than those of Chapter III. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:- xxx xxx xxx xxx xxx xxx xxx xxx xxx (v) the terms and conditions of service of the Chief Executive Officer under sub-section (2) of section 23; 12. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:- xxx xxx xxx xxx xxx xxx xxx xxx xxx (v) the terms and conditions of service of the Chief Executive Officer under sub-section (2) of section 23; 12. Reading of the aforesaid Section shows that it is in two parts first under sub-section (1) which gives the State Government power to make rules to carryout the purposes of Wakf Act, 1995 and second sub-section (2) (v) primarily touches upon Section 23 (2) of the Act, 1995 wherein the State Government is given the power to make rules with respect to the terms and conditions of service. Therefore, primarily the rule making power is covered by sub-section (1) of Section 109 of the Act, 1995 which legislature has used the word State Government may make rules to carry out for the purposes of the Wakf Act. 13. With respect to evaluate the vires of statute qua the object, the Supreme Court in the matter of Chandrika Prasad Yadav Versus State of Bihar and others { (2004) 6 SCC 331 } has held that the question as to whether a statute is directory or mandatory would not depend upon the phraseology used therein. The principle as regard the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve. Para 31 of the said judgment which is relevant is reproduced hereinbelow:- 31. The question as to whether a statute is directory or mandatory would not depend upon the phraseology used therein. The principle as regards the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve. (See P.T. Rajan v. T.P.M. Sahir [ (2003) 8 SCC 498 : (2003) 8 Scale 165 ].) 14. The statement and object of the Wakf Act, 1995 shows that the Act, 1954 was found with many deficiencies in it as also in the set up of Wakf Boards especially their powers of superintendence and control over the management of individual wakfs. The statement and object of the Wakf Act, 1995 shows that the Act, 1954 was found with many deficiencies in it as also in the set up of Wakf Boards especially their powers of superintendence and control over the management of individual wakfs. Thereafter, after careful considerations and after holding wide ranging discussions with the leaders of the Muslim Community, the new act was brought into i.e. the Wakf Act, 1995 and Section 23 (1) of the Act, 1995 would show that the right was given to Government to appoint the CEO to control the affairs of Wakf. It mandates that the CEO shall be a Muslim and also he should be a Government employee. Therefore, the nomenclature of Deputy Collector which has been used by the State Government in the Rules, 2020 do not reflect that it fall short to achieve the object of Wakf Act, 1995. When the equivalence of Deputy Collector & Deputy Secretary is not in serious dispute qua their discharge of duty the presumption of intravires is required to be given a preference and the statutory attempt is required to be held that it was only inserted to give effect to purpose of the Act. 15. Perusal of Section 23 of the Act, 1995 in entirity would further show that no consequence of non-compliance in the statute has been provided. When such consequence has not been provided in the statute, the said section would be a directory in nature. 16. The Supreme Court in the matter of Balwant Singh v. Anand Kumar Sharma, (2003) 3 SCC 433 has emphasized the effect of law that when no consequence is provided, it would be directory in nature. Further, the Supreme Court in State of Uttar Pradesh Vs. Babu Ram Upadhyay ( AIR 1961 SC 751 ) has held that it is well established that an enactment in form mandatory might in substance be directory. It was further held that it is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. It was further held that it is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. The reference is made to Maxwell on “The interpretation of Statutes”, 10th Edition, at Page 381 and the Court ruled the following: “On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.” This passage was accepted by the judicial Committee of the Privy Council in the case of Montreal Street Rly. Com. v. Normandin 1917 AC 170: (AIR 1917 PC l42) and by this Court in 1958 SCR 533 : ((S) AIR 1957 SC 912 ). 17. The Supreme Court in Mohan Singh v. International Airport Authority of India (1997) 9 SCC 132 has made a reference to the book of mandate on the construction of statute and has fortified the principle the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way of the other. The Supreme Court in this case further laid down that where the language of statute creates a duty, the special remedy is required to be prescribed for non-performance of the duty. 18. Now further turning back to the question of repugnancy, the Supreme Court in the matter of Forum for People’s Collective Efforts (FPCE) and Another Vs. State of West Bengal and Another { (2021) 8 SCC 599 } has laid down the test of repugnancy. 18. Now further turning back to the question of repugnancy, the Supreme Court in the matter of Forum for People’s Collective Efforts (FPCE) and Another Vs. State of West Bengal and Another { (2021) 8 SCC 599 } has laid down the test of repugnancy. As per Entry No.10 of List III (Concurrent List) of Schedule 7 of the Constitution of India envisage that the State and Central both can make laws in respect of trust and trustees and Entry No.28 envisages the charities and charitable institutions, charitable and religious endowments and religious institutions. Therefore, though the rules were framed in exercise of power under Section 109 of the Act, 1995 conferred by the Act, 1995 the distribution of legislative powers in Part XI of the Constitution envisages that Parliamentary legislation extends to the entire territory of India or its part while State legislation extends law to the whole or any part of a State. Under Article 246 the legislative power to make laws “with respect to” any of the matters enumerated in List I of the Seventh Schedule – the Union List – is entrusted to Parliament. Clause (1) of Article 246 which embodies this principle is prefaced with a non obstante provision which gives it precedence over clauses (2) and (3). Article 246 (2) enunciates the principles governing the exercise of legislative power “to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule, the Concurrent List. Clause (2) begins with a non obstante provision which gives it precedence over Clause (3). Clause (2) embodies the principle that Parliament and [subject to Clause (1)] the legislature of any State have the power to make laws with respect to any of the matters in List III. Clause (3) stipulates that that the legislature of any State has the exclusive power to make laws for the State or any part of it” with respect to any of the matters enumerated in list II”, the State List. Some of the salient features which have been reiterated in para 113 are reproduced hereinbelow:- 113. The distribution of legislative powers in Part XI of the Constitution envisages that parliamentary legislation extends to the entire territory of India or its part while State legislation extends law to the whole or any part of a State. Some of the salient features which have been reiterated in para 113 are reproduced hereinbelow:- 113. The distribution of legislative powers in Part XI of the Constitution envisages that parliamentary legislation extends to the entire territory of India or its part while State legislation extends law to the whole or any part of a State. Under Article 246, the legislative power to make laws “with respect to” any of the matters enumerated in List I of the Seventh Schedule — the Union List — is entrusted to Parliament. Clause (1) of Article 246 which embodies this principle is prefaced with a non obstante provision which gives it precedence over clauses (2) and (3). Article 246(2) enunciates the principles governing the exercise of legislative power “to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule, the Concurrent List. Clause (2) begins with a non obstante provision which gives it precedence over clause (3). Clause (2) embodies the principle that Parliament and [subject to clause (1)] the legislature of any State have the power to make laws with respect to any of the matters in List III. Clause (3) stipulates that the legislature of any State has the exclusive power to make laws for the State or any part of it “with respect to any of the matters enumerated in List II”, the State List. Some of the salient features of Article 246 need to be noticed: 113.1. An exclusive power has been entrusted to Parliament to legislate on matters enumerated in List I. 113.2. The plenary power entrusted to Parliament to legislate with respect to a matter enumerated in List I is reaffirmed by the non obstante provision which operates notwithstanding anything in clauses (2) and (3). 113.3. On matters which have been enumerated in List III: 113.3.1. Parliament has the power to make laws notwithstanding clause (3). 113.3.2. The State Legislature also has the power to make laws subject to clause (1). 113.4. The State Legislatures have the exclusive powers to make laws for the State or any part of it with respect to matters in List II, this power being subject to clauses (1) and (2). 113.5. Clauses (1) and (2) of Article 246 employ non obstante provisions in respect of: 113.5.1. The exclusive power entrusted to Parliament over List I matters. 113.5.2. 113.5. Clauses (1) and (2) of Article 246 employ non obstante provisions in respect of: 113.5.1. The exclusive power entrusted to Parliament over List I matters. 113.5.2. The power entrusted to Parliament over List III matters. 113.6. Though, the legislature of a State has exclusive power to make laws with respect to matters on the State List, this is subject to clauses (1) and (2). 19. Reading of the aforesaid judgment shows that in order to declare a State legislature being repugnant to a law enacted by Parliament, the consequence to the extent it override the Union law, it would be viod to the extent of the repugnancy and the parliamentary enactment shall prevail. The Supreme Court in the said judgment at para 132 has laid down the principle and the relevant part is reproduced:- 132. ………...The concept of repugnancy emerges from the decisions of this Court which have elaborated on the context of clause (1) of Article 254. Clause (2) of Article 254 has also employed the expression “repugnant” while providing that a law enacted by the legislature of a State which is repugnant to a law enacted by Parliament or an existing law on a matter within the Concurrent List shall, if it has received the assent of the President, prevail in the State. The decisions of this Court essentially contemplate three types of repugnancy: 132.1 The first envisages a situation of an absolute or irreconcilable conflict or inconsistency between a provision contained in a State legislative enactment with a parliamentary law with reference to a matter in the Concurrent List. Such a conflict brings both the statutes into a state of direct collision. This may arise, for instance, where the two statutes adopt norms or standards of behavior or provide consequences for breach which stand opposed in direct and immediate terms. The conflict arises because it is impossible to comply with one of the two statutes without disobeying the other; 132.2. The second situation involving a conflict between State and Central legislations may arise in a situation where Parliament has evinced an intent to occupy the whole field. The notion of occupying a field emerges when a parliamentary legislation is so complete and exhaustive as a Code as to preclude the existence of any other legislation by the State. The second situation involving a conflict between State and Central legislations may arise in a situation where Parliament has evinced an intent to occupy the whole field. The notion of occupying a field emerges when a parliamentary legislation is so complete and exhaustive as a Code as to preclude the existence of any other legislation by the State. The State law in this context has to give way to a parliamentary enactment not because of an actual conflict with the absolute terms of a parliamentary law but because the nature of the legislation enacted by Parliament is such as to constitute a complete and exhaustive Code on the subject. 132.3 The third test of repugnancy is where the law enacted by Parliament and by the State Legislature regulate the same subject. In such a case, the repugnancy does not arise because of a conflict between the fields covered by the two enactments but because the subject which is sought to be covered by the State legislation is identical to and overlaps with the Central legislation on the subject. xxx xxx xxx 20. Applying the aforesaid principle in the context of the Rule, 2020 by the State, we do not find any absolute or irreconcilable conflict or inconsistency between the rules made by the State Government by Rules, 2020 to the Act,1995, we do not find that it is in direct collusion for the fact that only equivalence of the post cannot be decided on the nomenclature of post alone. The two statutes herein adopt the same norms and standard of behaviour and provide consequence for breach. In the instant case in hand, the primary object being in the interest of the Wakf, the appointment of the CEO to be a Deputy Collector by the Rules, 2020 do not come in direct conflict to the object by adopting the purposive interpretation of the Wakf Act, 1995 and the Rules of 2020 framed by the State. The reading of Section 23 (1) do not show that the parlimaent has evinced an intent to occupy the whole field to control the Wakf properties. The notion of the parliament do not show that it is so complete and exhaustive as a Court to preclude the existence of any other legislation by the State in the sense the parliament was conscious enough to bring in the State role by the Act itself. The notion of the parliament do not show that it is so complete and exhaustive as a Court to preclude the existence of any other legislation by the State in the sense the parliament was conscious enough to bring in the State role by the Act itself. The last test of repugnancy that the law enacted by the parliament and the State regulate the same subject also is missing as the Parliament has completely delegated the power to regulate of appointment of CEO to the hands of State provided certain conditions that he should not be a non-muslim or below of certain pay scale excising certain duties would show that it is not in conflict and the enactment by the State is sought to be covered is identical and incidental to the Central legislation to achieve the object. 21. In view of the foregoing discussion, we are not inclined to allow this petition and hold that the Rules, 2020 are intravires to the Act, 1995. 22. Accordingly, the petition sans merit is liable to be and is hereby dismissed.