2017 (5) TMI 1831 - HC - Indian Laws

Bombay HC sets aside CEO appointment to Maharashtra Wakf Board for violating Section 23 requirements

Durrani Abdullah Khan Versus The State of Maharashtra, Through its Secretary; Maharashtra State Board of Wakf, Through its Chief Executive Officer; Ajmatulla Rahimatulla Qureshi

Bombay HC invalidated the appointment of a Chief Executive Officer to the Maharashtra State Board of Wakf for non-compliance with amended Section 23 of ... Appointment as deputation as Chief Executive Officer of the Maharashtra State Board of Wakf, Aurangabad - scope of amended Section 23 and Rule 7 of the Maharashtra Wakf Rules - interpretation of the word 'and' in Section 23 concerning the appointment criteria for the CEO. HELD THAT:- Sec. 23 as it existed prior to the amendment of the year 2013 empowered the State Government to appoint a Chief Executive Officer, who shall be a Muslim in consultation with the board. However, after the amendment to Sec. 23 in the Wakf Act 1995 in the year 2013 rigor of consultation of the board has been done away with. However, the State Government is empowered to appoint Chief Executive Officer of the Board from panel of two names suggested by the board and who shall not be below the rank of the Deputy Secretary to the State government and in case non availability of Muslim officer of that rank, a Muslim Officer of equivalent rank may be appointed on deputation. Sec. 23 as it exist after amendment does not require the State government to consult with the board while appointing a full time Chief Executive Officer. To read the provision in the manner that if a person not below the rank of deputy secretary to the State Government is not available, then the State Government may appoint any Muslim Officer of equivalent rank without getting two names from the board, would be doing violence to the language of the word 'and' appearing between two parts of Sec. 23(1) of the Wakf Act. Whether the person to be appointed as a Chief Executive Officer is a person not below the rank of Deputy Secretary and in case of non availability of such a Muslim officer of that rank, a Muslim officer of equivalent rank is to be appointed, the names will have to be suggested by the board - Whether the person appointed is not below the rank of Deputy Secretary or of a equivalent rank, he will have to be appointed on deputation, because the Chief Executive Officer to be appointed as per Rule 7 cannot be more than 60 years of age at the time of appointment, his tenure would be three years or at the most five years. In the present case, the name of the respondent No. 3 was not suggested by the board. If the names suggested by the board were of the persons not competent to be appointed, then the State could have called for other names from the Board and ought to have appointed a full time Chief Executive Officer from and amongst the names suggested by the Board. Of course, if some time is spent in it, then modalities can be workout for appointing incharge Chief Executive Officer in the interregnum. Conclusion - The appointment of respondent No. 3 was invalidated due to non-compliance with Section 23, necessitating a new appointment process adhering to the statutory requirements. Application disposed off. 1. ISSUES PRESENTED and CONSIDEREDThe judgment primarily revolves around the following core legal questions:Whether the appointment of the Chief Executive Officer (CEO) of the Maharashtra State Board of Wakf (the 'Board') was in compliance with Section 23 of the Wakf Act, 1995, as amended in 2013.Whether the appointment process required consultation with the Board under the amended Section 23 and Rule 7 of the Maharashtra Wakf Rules.Whether the State Government was authorized to appoint a CEO from outside the panel of names suggested by the Board.The interpretation of the word 'and' in Section 23 concerning the appointment criteria for the CEO.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Compliance with Section 23 of the Wakf Act, 1995Relevant Legal Framework and Precedents: Section 23 of the Wakf Act, 1995, as amended in 2013, outlines the procedure for appointing the CEO of the Board. The section mandates that the appointment should be from a panel of two names suggested by the Board.Court's Interpretation and Reasoning: The court emphasized that the amended Section 23 requires the State Government to appoint a CEO from the panel of names suggested by the Board. The amendment removed the requirement for consultation with the Board, indicating the Board's prerogative in suggesting names.Key Evidence and Findings: The court found that the respondent No. 3 was appointed without being part of the suggested panel, which contravened the statutory requirement.Application of Law to Facts: The court applied the statutory mandate of Section 23, concluding that the appointment of respondent No. 3 was not in compliance as his name was not suggested by the Board.Treatment of Competing Arguments: The petitioner argued for adherence to the panel requirement, while the State contended the necessity due to the non-availability of qualified candidates. The court sided with the statutory requirement, emphasizing adherence to the panel suggestion.Conclusions: The appointment of respondent No. 3 was deemed non-compliant with Section 23, necessitating a new appointment process.Issue 2: Requirement of Consultation with the BoardRelevant Legal Framework and Precedents: Rule 7 of the Maharashtra Wakf Rules initially required consultation for appointments. However, the 2013 amendment to Section 23 removed this requirement.Court's Interpretation and Reasoning: The court clarified that post-amendment, the requirement for consultation was removed, as the appointment had to be from the Board's suggested panel.Key Evidence and Findings: The court noted the inconsistency between Rule 7 and the amended Section 23, highlighting that rules must align with statutory provisions.Application of Law to Facts: The court determined that consultation was not a prerequisite under the amended Section 23, focusing on the panel requirement.Treatment of Competing Arguments: The State argued for the necessity of consultation, but the court emphasized statutory compliance with the panel suggestion.Conclusions: Consultation was not required under the amended Section 23, focusing on adherence to the panel suggestion.Issue 3: Authority to Appoint from Outside the Suggested PanelRelevant Legal Framework and Precedents: Section 23 mandates appointments from the Board's suggested panel, with no provision for external appointments.Court's Interpretation and Reasoning: The court underscored the statutory limitation, restricting appointments to the panel suggested by the Board.Key Evidence and Findings: The appointment of respondent No. 3, not from the suggested panel, was found to be unauthorized.Application of Law to Facts: The court applied the statutory requirement, invalidating the appointment of respondent No. 3.Treatment of Competing Arguments: The State's argument for necessity was overruled by the statutory mandate.Conclusions: The appointment from outside the panel was unauthorized, necessitating adherence to the statutory process.Issue 4: Interpretation of 'and' in Section 23Relevant Legal Framework and Precedents: The interpretation of 'and' in Section 23 was crucial in determining the conjunctive or disjunctive nature of appointment criteria.Court's Interpretation and Reasoning: The court interpreted 'and' conjunctively, requiring adherence to both criteria for appointing a CEO.Key Evidence and Findings: The court emphasized the legislative intent, requiring appointments from the suggested panel.Application of Law to Facts: The court applied a conjunctive interpretation, reinforcing the panel requirement.Treatment of Competing Arguments: The State's argument for a disjunctive interpretation was rejected in favor of legislative intent.Conclusions: The conjunctive interpretation was upheld, reinforcing the statutory requirement for panel-based appointments.3. SIGNIFICANT HOLDINGSPreserve Verbatim Quotes of Crucial Legal Reasoning: 'The State Government is obliged to appoint a full-time Chief Executive Officer of the Board from the panel of two names suggested by the Board.'Core Principles Established: The statutory requirement for appointing a CEO from the Board's suggested panel is mandatory, with no provision for external appointments or consultation post-amendment.Final Determinations on Each Issue: The appointment of respondent No. 3 was invalidated due to non-compliance with Section 23, necessitating a new appointment process adhering to the statutory requirements.In conclusion, the judgment emphasizes strict adherence to the statutory framework outlined in Section 23 of the Wakf Act, 1995, as amended in 2013, for appointing the CEO of the Board. The court invalidated the appointment of respondent No. 3 due to non-compliance with the panel requirement, underscoring the legislative intent and statutory mandate.