Judgment · High Court · 2012

This is the second round of litigation that has arisen out of th e recommendation made in favour of the respondent No. 6 for appointment as Musli m Marriage Registrar (MMR) and Kazi at Mankachar in the District of Dhubri. The challenge made in the writ petition is the Annexure-5 notification dated 20.09.2 011 by which the Govt. of Assam in the Revenue (Registration) Department has iss ued license to the respondent No. 6 to act as MMR and Kazi.

I have heard Mr. A.M. Buzarbaruah, learned counsel for the petitioner as well as Mr. M. Choudhury, learned counsel representing the respondent No. 4. I have also heard Ms. B. Dutta, learned State counsel as well as Mr. U.K. Nair, al ongwith Mr. A.R. Bhuyan, learned counsel for the respondent No. 6.

In the first round of litigation noticing the allegation that the respo ndent No. 6 lacks basic qualification prescribed in Rule 3 of the Assam Moslem M arriages and Divorces Registration Rules, 1935, direction was issued to determin e the same by the Permanent Committee envisaged under Rule 4 of the said Rules. It was contended that the respondent No. 6 having not passed the Assam Senior M adrassa Final Examination (FM), he was not qualified for assignment of the MMR a nd Kazi. It was further contended that even if the particular qualification poss essed by the respondent No. 6 is held to be equivalent to FM, then also the pref erence given only to FM passed candidate under Rule 4, will hold the field.

The earlier round of litigation in the form of W.P.(C) No. 5437/2009 and W.P.(C) No. 9435/2009 came to an end with passing of the order dated 31.03.2011 . The operative part of the order dated 31.03.2011 is reproduced below: (cid:28)13. atter requires a fresh consideration of the Permanent Committee on the following For all the aforesaid reasons, I am of the considered opinion that the m aspects:- (i) Whether the respondent No.5 has the prescribed qualification conforming to t he requirement of the qualification prescribed in the advertisement and Rule 4 o f the aforesaid Rules. The committee is also required to look into the plea of the petitioners that in case of equivalence in qualification, preference will ha ve to be given to the candidates possessing FM qualification. (ii) The Committee should also look into the plea of the petitioners that there is no MMR Office as such and the MMR Office starts functioning from the convenie nt place once the MMR is appointed. In this connection, the petitioners have al so questioned the certificate that has been issued in favour of the respondent N o.5 certifying him to the nearest to the MMR Office. (iii)The Permanent Committee shall consider the issue No.2 in reference to the q ualification prescribed, about which mention has been made in Matiur Rahman (sup ra) judgment. (cid:29)

After the aforesaid order remanding the matter back to the Permanent com mittee, the said Committee has passed the particular resolution in its meeting h eld on 24.05.2011 favouring the respondent No. 6. The resolution is reproduced b elow: (cid:28)2. Mankachar: The P.C. carefully examined the papers relating to educational qualification, di stance from residence and the position of candidates determined by the D.R. Dhub ri. The members also followed the direction of the Hon’ble High Court in W.P. ( C) No. 5437/2009. after examining all the aspects, the members arrived at the c onclusion that Md. Enus Ali has the qualification equivalent to F.M. as certifi ed by the Secretary, State Mardrssa Board. He has also passed the Assam Madrass a Title (M.M.) examination from the same Board which is a higher examination tha n the F.M. Had his qualification been unequal, Board would not have allowed him to appeared in the higher examination i.e. the Assam Title (M.M.) examination. Moreover, there are instance of considering other examination equivalent to F.M. , like in case of Md. Moulana Aulad Hussain, MMR, Sonari and Md. Azhar Ali, MMR, Harirhar (South Salmara). Regarding criterion of residence the P.C. also of the same opinion with the Hon’ ble Court’s observation that nearness to presently working office can not be a c riterion for choosing a person to be a licence holder for M.M.R unless and until the office is of permanent nature and owned by the Department. On scrutiny if the records the following persons: (1) Md. Delwar Hussain (2) Miss Wahida Sulta na (3) Md. Ruhul Amin are found to be more or less on the same footing, as to t he residence criterion. It is a fact that preference should be given to the candidates having the F.M. D egree from Assam Madrassas Borad. In the instant case the person earlier chosen by the P.C. attained the requisite proficiency from an institute which is renow ned for Islamic Education all over India including Assam. His proficiency attai ned from Darul-Uloom, Deoband, U.P. was the eligibility criteria for attaining h igher qualification from the same Board i.e. Assam. Under the circumstances P.C . found no justification for regarding Md. Enus Ali as less preferred candidate than the others having F.M. Degree. (cid:29)

Although the determination of equivalence of the qualification possess ed by the respondent No. 6 in reference to FM as has been determined by the Perm anent Committee has not been questioned by the petitioner, but the submission m ade is that irrespective of the said equivalence, Rule 4 of the aforesaid Rules, 1935 having prescribed preference to FM candidate, the petitioner being FM qual ified, ought to have been preferred over the respondent No. 6 who has not passe d the said Assam Senior Madrassa Final Examination, i.e. FM.

Mr. Buzarbaruah, learned counsel for the petitioner submits that since R ule 4 has specifically provided for preference to candidates who have passed Ass am Senior Madrassa Final Examination, i.e. FM, the petitioner being FM ought to have preferred over the respondent No. 6. Be it stated here that the respondent No. 6 although not FM, but he has the equivalent qualification as certified by t he Secretary of State Madrassa Board, fact not in dispute. Pursuant to such equi valent qualification he has also passed Assam Madrassa Title (MM) Examination fr om same Board from which the petitioner has passed FM. MM examination is higher examination than FM. Thus here is a case in which although the respondent No. 5 is not FM from Assam Madrassa, but he is holder of higher qualification, i.e. MM , from the same Madrassa.

Learned counsel appearing for the parties have referred to Rules 3 and 4 of the aforesaid Rules of 1935 which are quoted below:

3. Form of application. The District Registrar’s nominations shall be submitted to the Inspector General of Registration to be placed before the Permanent Comm ittee, and shall be accompanied by the original application of the candidate in the following form, together with a certificate of good moral character, and eit her a certificate that he has passed the Assam Senior Madrassa Final Examination or a certificate that he possesses a sufficient acquaintance with the Arabic la nguage and the Moslem Law of Marriage and Divorce, signed by three Muhammadan ge ntlemen of respectability and position. Application for Moslem Registrarship under the Assam Act IX of 1935 (An Act to p rovide for the voluntary registration of Moslem Marriage and Divorces at .. & &T hana.. & & ..District of.. & & &) 4. Who may be nominated. Candidates for permanent posts of Moslem Registrar will be preferred if they have passed the Assam Senior Madrassa Final Examination; a nd they must be of good moral character. In the selection of Moslem Registrar p reference shall ordinarily be given to candidates who are natives of or domicile d in Assam and who reside at a convenient place within the limits of the jurisdi ction proposed; but no person shall be nominated a Moslem Registrar merely by re ason of some supposed hereditary right. The fact that a person is a pensioner s hall not be a bar. (cid:29)

Mr. Buzarbaruah, learned counsel for the petitioner submits that Rule 3 of the Rules only prescribes the eligibility, but Rule 4 prescribes for preferen ce for the purpose of selection. He submits that the respondent No. 6 having no t had FM qualification, could not have been preferred over the petitioner who i s FM. Countering the above argument, both Mr. Choudhury representing the respon dent No. 4 and Mr. U.K. Nair, learned counsel for the respondent No. 6, submit t hat the aforesaid two Rules cannot be read in isolation, but will have to be rea d con-jointly so as to arrive at a meaningful interpretation. They submit that o nce the equivalence of the qualification possessed by the respondent No. 6 in r eference to the Assam Senior Madrassa Final Examination (FM) as prescribed in Ru le 3 is accepted, then Rule 4 will have to be read in the context in which the s ame is envisaged in the provision of Rules 3 and 4.

I have given my anxious consideration to the submissions made by the lea rned counsel for the parties. I have also perused the entire materials on recor d.

As noted above, Rule 3 prescribes qualification of Assam Senior Madrass a Final Examination (FM) or a certificate that he possess a sufficient acquainta nce with the Arabic language and the Moslem Law of Marriage and Divorce, signed by three Muhammadan gentlemen of respectability and position. Thus, the said Rul e recommends two qualifications- (1) Assam Senior Madrassa Final Examination (FM ) and (2) certificate as mentioned in the Rule itself. Once the equivalence of t he qualification possessed by the respondent No. 6 in reference to FM and for t hat matter any candidate is accepted and/or recognised, the preference as indica ted in Rule 4 of the Rules will have to be understood in that context and not i n the context of only FM. If the kind of interpretation which the petitioner s eeks to give is accepted, same will be antithesis to the provisions of Rules 3 a nd 4 of the said Rules. The preference indicated in Rule 4 is only in reference to the qualification referred to under or. In between the two qualifications pre scribed, if FM is to be preferred, the qualification equivalent to that will als o have to be given the same weitage.

As discussed above, the qualification possessed by the respondent No.6 h as been recognised as equivalent to that of the Assam Senior Madrassa Final Exa mination (FM). Not only that, the respondent No. 6 has also obtained higher qual ification, i.e. MM, from the same Madrassa which imparts Assam Senior Madrassa F inal Examination (FM) in recognised and acceptance of his basic qualification as equivalent to FM. All these aspects of the matter has been discussed in the abo ve quoted minutes of the meeting of the permanent committee.

For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed. Interim order operating in this proceeding stands vacated.

Be it stated here that although the resolution referred to above is not under challenge in this writ petition, but as pointed out by Mr. Buzarbaruah, l earned counsel for the petitioner, that the same has been brought on record by way of challenge by filing a Misc. case. Be that as it may, in view of the above findings, we need not go to that aspect of the matter.