Writ Petition No. 551 of 2017. Case: Durrani Abdullah Khan Vs The State of Maharashtra and Ors. Bombay High Court

Case Number:Writ Petition No. 551 of 2017
Party Name:Durrani Abdullah Khan Vs The State of Maharashtra and Ors
Counsel:For Appellant: V.J. Dixit, Senior Advocate i/by Sushant V. Dixit, Advocate and For Respondents: P.S. Patil, Addl. G.P.
Judges:S.V. Gangapurwala and K.L. Wadane, JJ.
Issue:Waqf Act, 1995 - Sections 23, 23(1)
Judgement Date:May 05, 2017
Court:Bombay High Court
 
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Judgment:

S.V. Gangapurwala, J., (Aurangabad Bench)

1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. The petitioner assails the Government Resolution dated 03.01.2017 thereby appointing the respondent No. 3 on deputation as Chief Executive Officer of the respondent No. 2/the Maharashtra State Board of Wakf, Aurangabad (herein after referred as to the "Board" for the sake of brevity).

3. Mr. Dixit, the learned senior advocate for the petitioner during the course of his erudite arguments put forth following propositions.

(i) The Chief Executive Officer of the respondent No. 2/Board has to be appointed from the panel of names recommended by the Board as required U/Sec. 23 of the Wakf Act 1995 (for short hereinafter referred as "Act"). Pursuant thereto the board had recommended three names on 24.08.2016. The said recommendation is still pending and no decision has been taken on the said recommendation.

(ii) Without taking any decision on the recommendations, the respondent No. 1 directed the respondent No. 2 to hold the meeting of the board and appoint the respondent No. 3 by letter dated 27.10.2016. The respondent held meeting on 04.11.2016 and passed the resolution that the board may consider on any other recommendation made by the respondent No. 1, only after the respondent No. 1 takes decision in respect of recommendation made by the respondent No. 2. Without considering the recommendations of the respondent No. 2, the respondent No. 1 appointed the respondent No. 3 as Chief Executive Officer of the respondent No. 2 on 03.01.2017.

(iii) While appointing the respondent No. 3 as Chief Executive Officer of the respondent No. 2, the respondent No. 1 did not make any consultation with the respondent No. 2 as is required under Rule 7 of the Wakf Rules. The appointment of the respondent No. 3 is also bad on account of lack of consultation. As per Rule 7 of the Wakf Rules, consultation is mandatory. The learned senior advocate relies on the judgment of the Division Bench of this Court in a case of Sopanrao Onkarrao Sathe and another Vs. State of Maharashtra and others reported in 2011 (1) Mh.L.J. 739 and also the judgment of the Apex Court in a case of Nirothilal Gupta and others Vs. Union of India and others reported in 1993 Supp. (1) SCC 731.

(iv) It is further contended by the learned senior advocate that, sec. 23 of the Act gives powers to the State Government to appoint full time Chief Executive Officer, but the same has to be from the panel of two names suggested by the Board, who 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, a Muslim officer equivalent of the rank may be appointed on deputation. According to the learned senior advocate all Chief Executive Officers are required to be appointed on deputation only. The word 'and' appearing in the section will have to be read conjunctively. Whether the person is of the rank of Deputy Secretary or is of equivalent rank, in both the cases, the State Government has to appoint a full time Chief Executive Officer only from the panel of two names suggested by the Board. The learned counsel relies on the judgment of the apex Court in a case of M. Satyanarayana Vs. The State of Karnataka and another reported in AIR 1986 SC 1162.

(v) As the appointment of the respondent No. 3 is not on the recommendation of the respondent No. 2, nor in consultation with the respondent No. 2, the appointment of the respondent No. 3 as Chief Executive Officer of the respondent No. 2 on Deputation is bad in law and deserves to be set aside.

4. The learned Additional Government Pleader for the respondent No. 1 submits that, out of three names recommended by letter dated 24.08.2016 by the Chairman, one Smt. Nasim Bano Nazir Patel, did not possess requisite qualification. The report regarding name of Mohammad Raza Khan and Qureshi Naimoddin Abdul were still awaited and thus, the board was directed to consider the name of the respondent No. 3 and was asked to pass resolution. A resolution to that effect was passed by the respondent No. 2/Board. Thereafter only the respondent No. 3 is appointed. As far as name of Razakhan is concerned, the Urban Development Department vide its letter dated 01.07.2016 informed that the decision has been taken to initiate departmental enquiry against him. The question of appointment of full time Chief Executive Officer was raised in Writ Petition No. 1745 of 2016 and Writ Petition No. 125 of 2016...

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