Judgment · High Court · 2012

The petitioner contended that such selection of the Respondent N o.8 by the Permanent Committee is contrary to the recommendation of the Selectio n Committee and as such, arbitrary and illegal. Further, it was also contended t hat no proper reason has been assigned for the selection of the respondent no.8 since the writ petitioner was also having the requisite educational qualificati ons and also possessing higher qualifications than the respondent no.8 for the s aid post. [5] s-in-opposition in the writ petition. The respondent nos. 2 and 8 filed had their respective affidavit According to the respondent no.2, as per Rule 6 of the Assam Mos lem Marriages and Divorces Registration Rules, 1935 framed under the Assam Mosle m Marriages and Divorces Registration Act, 1935, the Permanent Committee was wit hin its competence to disapprove the nomination of the District Registrar and s elect another candidate . Accordingly, the Permanent Committee selected the cand idate other than the candidate nominated by the District Registrar. The respondent no.8 in his affidavit-in-opposition also stated i n the same lines and stated that the Permanent Committee can select a candidate even beyond the nomination made by the District Registrar. He also stated that h e was staying nearer to Burubari and had more experience. [6] The learned Single Judge, after hearing the parties and also o n perusal of the materials on record, was of the view that no reason had been a ssigned by the Permanent Committee for selecting the respondent no.8. The learn ed Single Judge observed as follows:- (cid:28)As per the documents annexed to the writ petition, the petitioner alo ng with other candidates including the respondent No.8 was invited for a selecti on by order dated 7.12.2010. The District Registrar conducted the selection and according to the marks assigned under various heads to the candidates, the peti tioner secured 22 as against 13 marks secured by the respondent No.8. Thereafter , as per the requirement of the provisions of the aforesaid rules, the matter w as placed before the permanent committee. The said committee in its meeting held on 24.05.2011 resolved as follows: (cid:28)Buraburi: The members carefully examined the educational qualification of the c andidates and the distance of residence from the M.M.R Office as reported by th e DC, Morigaon. The P.C found Tamaruddin has the requisite qualification. Furthe r, he has experience certificate. Considering all these aspects the P.C selected him for issuing licence for M.M.R and the Chairman is requested to move Govt. a ccordingly (cid:29). A bare perusal of the aforesaid resolution, it is seen that non reason has been assigned as to why the respondent No.8 was selected. The permanent committee eve n did not discuss about the candidatures offered by the other candidates, their qualifications, their place of residence and the distance from the Muslim Marri age Registration office, etc. It gives the impression as if the Committee consid ered the case of the respondent No.8 alone to the exclusion to the other candida tes (cid:29). The learned Single Judge also observed that in case of non-acce ptance of the nomination by the District Registrar/Deputy Registrar, the Perman ent Committee is to request the District Registrar to submit fresh nomination, h owever, without taking recourse to such course of action, the Permanent Committe e selected the respondent no.8 without assigning any reason. Accordingly, the le arned Single Judge allowed the writ petition with a direction to the authorities to consider afresh the appointment of MMR. [7] The impugned Resolution dated 24.05.2011 reads as follows:- (cid:28)PROCEEDING OF THE MEETING OF THE PERMANENT COMMITTEE CONSTITUTED VIDE G OVT. LETTER NO.REGN.50/75/PT-I/3 DATED 16.04.2008 HELD ON 24TH MAY, 2011 IN THE OFFICE CHAMBER OF THE INSPECTOR GENERAL OF REGISTRATION, ASSAM, GUWAHATI-32. Name & Designation Signatures 1. Sonmai Barua, IAS Sd/- Members Present President, & IGR, Assam.

#2. Mr.Atavar Rahman, HOD, Islamic Studies Cotton College, Kamrup, Guwahati. Sd/-

#3. Dr. Abdul Halim Retd. HOD, Political Science, Nalbari College.

#4. Mostafa Sohidul Islam, Ex-MLA Sd/- Guwahati, Christian Basti, Guwahati-5.

#5. Moulana Abdul Rahim Laskar Lecturer, M.K Dey College, Amraghat, Cachar Sd/- Sd/-

#6. Moulana Sariful Hussain Arabic Teacher Jorhat M.E. Madrasa, Jorhat.

#7. Prof. Shafiqul Hussain, HOD, English Dudhnoi College, Goalpara. Sd/- Sd/- Resolution No.I. **** **** Resolution No.II: The P.C. discussed the recommendation for M.M.R. to be selected at the following **** **** **** **** places. Buraburi: The members carefully examined the educational qualification o 1. f the candidates and the distance of residence from the M.M.R Office as reported by the DC, Morigaon. The P.C found Tamaruddin has the requisite qualification. Further, he has experience certificate. Considering all these aspects the P.C s elected him for issuing licence for M.M.R and the Chairman is requested to move Govt. accordingly. ***** ***** **** **** **** **** Resolution IV: Consequent upon the direction of the Hon’ble Supreme Court for c ompulsory registration of all marriages, it has become essential to have licence of M.M.R. and resolved to propose Govt. for opening of M.M.R. offices at the fo llowing places:

#1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Chagalia Madartari Jamardarhat Nayer alga Jaleswar Maria Sonari Kharmuja Nalbari & Mukalmua Garigaon Kakajan Naharani Kachudaram Jirighat Neairgram Nilambazar Dhubri District -do- -do- -do- Goalpara District -do- -do- -do- Nalbari District Kamrup (M) District Jorhat District Golaghat District Cachar district -do- -do- Karimganj District The meeting ended with thanks from the chair. Inspector General of Registration, Assam, Rupnagar, President, Permanent Committee & Guwahati -32. (cid:29) Sd/- It is, therefore, evident from the aforesaid Resolution dated 24 .05.2011 that the Permanent Committee recommended the respondent no.8, the appel lant herein for the post of Muslim Marriage Registrar and it was on the basis th at he was found to have the requisite qualification and experience certificate, and also taking into considering the distance of the residence of the candidate from the office of Muslim Marriage Registrar. However, it is not known how the aforesaid Permanent Committee m ade the selection, considering the fact that the petitioner also has the requisi te qualification and was given more marks in the interview conducted by the Sele ction Committee. [8] Though Rules provide for consideration of the residence at the c onvenient place within the limits of the jurisdiction proposed, it is seen from the records that while the petitioner was staying about 32 km away, the Respond ent No.8 was staying 25 km away, which cannot be said to be of much a difference . In the Select List prepared by the Selection Committee, the petitioner had bee n placed above the respondent no.8 in order of merit and no explanation has been given by the Permanent Committee for ignoring the claim of the petitioner while adopting the said impugned Resolution dated 24.05.2011. The only contention of the respondent no.2 is that Rule 6 of th e aforesaid Rules enables the Permanent Committee to disapprove the nomination o f the District Registrar and to select another candidate. In the present case, t he Permanent Committee selected a candidate other than nominated by the District Registrar and as such, no fault can be found with the process adopted by the Pe rmanent Committee. Rule 6 of the Assam Moslem Marriages and Divorces Registration R [9] ules, 1935 reads as follows:- (cid:28)6. Should the nomination of the District Registrar be disapproved by the Perman ent Committee, the District Registrar may be requested to submit a fresh nominat ion, or the committee may select another candidate with the necessary qualificat ions for the approval of Government (cid:29). The aforesaid Rule provides (i) that in the event the Permanent Committee disapproves the nomination of the District Registrar, the District Reg istrar may be requested to submit a fresh nomination, or (ii) the Committee may select another candidate with the necessary qualification for the approval of th e Government. In the present case, evidently, the petitioner was recommended, [10] being placed at the top of the merit list and therefore, if such recommendation of the Selection Committee is to be disapproved by the Permanent Committee by n ot accepting the candidature of the petitioner, it was required to refer back th e matter to the District Registrar with a direction to submit a fresh nominatio n. However, the same had not been done, rather, the Permanent Committee chose to select the respondent no.8 though he was placed below the petitioner. Even though Rules permits the Permanent Committee to select anot her candidate with necessary qualifications, the same has to be done in a fair a nd transparent manner and there ought to be proper reason for doing so. [11] In the present case, as discussed above, no reason has been give n by the Permanent Committee to reject the candidature of the petitioner, who wa s placed above the respondent no.8. The reasons assigned by the Permanent Commit tee, as can be seen from the impugned Resolution dated 24.05.2011 pertains only to the case of the respondent no.8 and has no such reference for rejecting the c laim of the petitioner. No reason has been assigned by the Permanent Committee for choosing the Respondent No.8 by ignoring the claim of the petitioner. The re ason for not selecting the more meritorious person ought to be given, which has not been done in the present case. Therefore, the reason assigned by the Permane nt Committee in the resolution is evidently arbitrary and cannot be sustained. [12] The respondent no.8 in his affidavit-in-opposition has stated th at the petitioner was staying in a place about 32 km away from the Kazi office whereas he is a local resident. To the aforesaid contention of the respondent no.8, the petition er had filed his reply-in-affidavit and had stated that the distance of the resi dences of the respondent no.8 and petitioner from the Muslim Marriage Registrar office, which is yet to be established, is almost the same and relied on the de cision of a Division Bench of this Court passed in W.A. No.30 of 2006 (Md. Jami l Ahmed Mazumdar vs. Lut Ahmed Barbhuiya and Others) on 08.06.2007 where this Court had held that choosing of a candidate for appointment to a statutory offi ce on the basis of purely of the distance of residence from the MMR office is ir rational. It may be noted that even though preference may be given in term s of distance as provided under the Rule 4, the same would postulate that other criteria or parameters would be equal. Preference given on the basis of distance cannot be at the cost of merit. In the present case, the petitioner obtained 22 marks whereas the respondent no.8 secured only 13 marks. Further, as can be se en from the record, as stated above, the petitioner was staying 32 km away and t he Respondent No.8 25 km away, which could hardly said to be of any difference. Therefore, giving a march over the petitioner only because of the reason of prox imity to the office cannot be considered to be valid. [13] The learned counsel for the appellant has also relied upon the j udgment of this Court in (cid:28)Abdul Latif Barbhuiya & anr. Vs. State of Assam & ors. (cid:29) reported in 2005 (2) GLT 178, in contending that the Permanent Committee was within its power to select any candidate from the list prepared by the District Registrar. While not denying such a power of the Permanent Committee to do so, i t goes without saying that it has to be done in a fair and transparent manner. P roper reading of the aforesaid judgment also reveals that in that case, no selec t list was prepared by the District Registrar. However, in the present case, a s elect list was prepared by a Selection Committee which has not been disputed nor challenged by the petitioner. Therefore, we are of the view that the facts and circumstances obtaining in the said case being different, the said decision may not be applicable in the present case. In the present case, a select list was pr epared. Though the said select list is not binding upon the Permanent Committee, the Permanent Committee while making the selection has to do it in a transparen t, fair and non-arbitrary manner, which in the present case is clearly absent, a s discussed above. [14] In view of the above, we are of the opinion that impugned judgme nt and order dated 18.05.2012 passed by the learned Single Judge in W.P(C) No.5 359 of 2011 does not warrant any interference by this Court and accordingly, th e appeal stands dismissed.