High Court · 2024
Legal Reasoning
1 WP/ 2095 / 2024+ IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 2095 OF 2024Syed Ekteja Ahmed HashmiS/o. S.Gulam Mustafa Hashmi,Age 61 years, Occ. Retired,Permanent resientof Darbar Galli,P.O. Ter, Tq. & Dist. Dharashiv (Osmanabad) .. Petitioner Versus1] The State of Maharashtra, Through Chief Secretary, Mantralaya, Mumbai – 32.1-A] The State of Maharashtra, Through Principal Secretary, Minorities Development Department, Mantralaya, Mumbai2] The Deputy Secretary, Minorities Development Department, Mantralaya, Mumbai3] Mr. Anees Ismail Shaikh, Age 61 years, Occu. Member Maharashtra State, Wakf Tribunal, Aurangabad C/o Office : Maharashtra State Wakf Tribunal, Haij House, Aurangabad.. RespondentsWITHWRIT PETITION NO. 2084 OF 2024Mustafa Khan Dilawar Pathan,Age 70 years, Occu. Pensioner,R/o. House No. 169, Satara,Tq. & Dist. Aurangabad.. Petitioner Versus1] The State of Maharashtra, Through its Principal Secretary, Minority Development Department, Mantralaya, Mumbai
Legal Reasoning
2 WP/ 2095 / 2024+ 2] Anis Iqbal Ismail Shaikh, Age : 61 years, Occu. Retired, R/o 504, B-wing, Building No. 1, Sarvaday Residency, Patri Pull, Kalyan Dist. Thane 421 301 .. Respondents...Advocate for petitioner : Mr. Sachin S. Deshmukh (WP/2095/2024)Advocate for petitioner : Mr. Sushant Dixit h/f. Mr. Khan Abdul Hamdeem and Mr. A.B. Karim (WP/2084/2024)Mr. A.B. Girase, GP for the respondent no. 1, 1/A and 2 (WP/2095/2024)and for respondent no. 1 (WP/2084/2024)Mr. V.D. Sapkal, Senior Advocate i/by Mr. Sk. Tarek Mobin for respondent no. 3 (WP/2095/2024) and for respondent no. 2 (WP/2084/2024)... CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ. RESERVED ON : 11 NOVEMBER 2024 PRONOUNCED ON : 25 NOVEMBER 2024JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule in both the matters. Learned GovernmentPleader, learned Senior advocate Mr. Sapkal for the respondent no. 2in writ petition no. 2084 of 2024, who is respondent no. 3 in writ petitionno. 2095 of 2024, instructed by advocate Mr. Sk. Tarek Mobin waivesservice. At their joint request, the matters are heard finally at the stageof admission. 2.Though these are two separate writ petitions, thepetitioners are seeking identical relief whereby they are seeking a writof quo warranto against the respondent no. 2/3 and putting up achallenge to his appointment as a Member of the Maharashtra StateWakf Tribunal, Aurangabad, by the notification dated 09-02-2024, 3 WP/ 2095 / 2024+ issued by the State Government in the Minorities DevelopmentDepartment, purportedly appointing him under section 83(4)(B) of theWakf Act, 1995 (Wakf Act) read with rule 45(B)(2)(ii) of theMaharashtra State Wakf Rules, 2022 (Wakf Rules).3. At the outset, it is necessary to note that though apreliminary objection regarding maintainability of the writ by thepetitioner in writ petition no. 2084 of 2024 was raised, in the light of thestand being taken by respondent no.2/3, that petition was amendedand the prayer for issuance of writ of quo warranto has been solicited. 4. So far as maintainability of writ of quo warranto at theinstance of the stranger to the recruitment process / appointmentprocess is concerned, though both the sides have made severalsubmissions, it is trite and succinctly laid down in the matter of B.R.Kapur V. State of T.N.; (2001) 7 SCC 231 and catena of otherjudgments considered by the Supreme Court in the recent decision inthe matter of Dr. Premchandran Keezhoth and another Vs.Chancellor Kannur University and others; 2023 SCC OnLine SC1592, inter alia holding that any person may challenge the validity of anappointment of a public office provided such challenge is bona fide andthe petitioner is not a proxy. Nothing of that sort having beendemonstrated against the petitioner in writ petition no. 2084 of 2024, 4 WP/ 2095 / 2024+ that petition would be maintainable, albeit, we have to bear in mind, thecontours within which such a writ can be issued. 5. So far as the petitioner in writ petition no. 2095 of 2024, nosuch issue regarding locus standi has been raised, inasmuch as hehimself was one of the candidates seeking appointment to the postwhich was filled in by the impugned notification by which respondentno. 2/3 was appointed. 6. Learned advocates for the petitioners in both thesepetitions would take us through the papers and would submit that therespondent no. 2/3 was appointed as a chief executive officer of theMaharashtra State Wakf Board. There were several complaintsregarding the irregularities and even the illegalities in discharge of hisduties. When a decision was taken to undertake an enquiry, heconsciously tendered the resignation on 26-06-2022. It was notaccepted and he was removed from the post on 27-06-2022.7. The learned advocates Mr. Deshmukh and Mr. Khan wouldsubmit that in order to fill in the post of Member under section 83(4)(b)of the Wakf Act, an advertisement was issued on 13-09-2021. Only thepetitioner in writ petition no. 2095 of 2024 and the respondent no.2/3submitted their applications. Having considered the fact that therewere several complaints against respondent no.2/3 and even it was a 5 WP/ 2095 / 2024+ matter of conflict of interest, which would creep in once he wasappointed as a member of the Wakf Tribunal, as he would be dealingwith the decisions, in exercise of the judicial powers of the WakfTribunal, wherever there was a challenge to the decision of the WakfBoard of which he was the chief executive officer for a considerabletime, with an express office note, a fresh avertisement was published.8.They would further submit that since only the petitionerfrom writ petition no. 2095 of 2024 was left in the fray, a freshadvertisement was directed to be issued calling for the applicationsfrom the aspiring candidates. Two individuals submitted theapplications. Cases of these two candidates and that of the petitioner -Syed Hashmi were scrutinized objectively. Considering the above twogrounds disqualifying respondent no. 2/3, petitioner - Syed Hashmi’sname was recommended for being appointed as a member of the WakfTribunal. It was endorsed by the Chief Secretary. The Minister ofMinorities Development Department, ignoring all the afore mentionedfacts and circumstances, recommended appointment of respondentno. 2/3. In fact, petitioner - Syed Hashmi and other candidate Abdulwere actually called for interaction and verification on 27-12-2022. Theother candidate did not participate and only the petitioner - SyedHashmi remained present. However, to the utter surprise, the 6 WP/ 2095 / 2024+ impugned notification was issued on 09-02-2024, appointingrespondent no.2/3 as a member of the Wakf Tribunal. 9. Learned advocates Mr. Deshmukh and Mr. Dixit wouldsubmit that the circumstances clearly indicate that selection ofrespondent no.2/3 was contrary to the provisions of law. Consideringthe fact that it is a post of a member of the Wakf Tribunal, which is ajudicial body, having jurisdiction to examine the decisions taken by theWakf Board, of which respondent no. 2/3 was the chief executiveofficer for a considerable time, after his appointment, he would be ajudge in his own cause. It is contrary to the principles of naturaljustice. Precisely for this reason, even the Hon’ble the Chief Ministerwhile approving the office note, had declared that appointment may bemade excluding the matters in which he was having interest as a chiefexecutive officer. Still, the appointment order does not contain anysuch qualification. He has been functioning as a member and takingup the matters in which he was member of the decision makingprocess as a chief executive officer of the Wakf Board. He cannot beallowed to be a judge in his own cause. 10.Learned advocates also quoted certain facts andcircumstances, wherein respondent no.2/3 in spite of having conflict ofinterest, decided the matter as a member of the Wakf Tribunal . Evenhe was facing a contempt proceeding therefor. Since it is a matter of 7 WP/ 2095 / 2024+ appointment to a public office, the afore mentioned circumstances arewrit large demonstrating arbitrariness in the selection process andprayed for cancellation of his appointment order. They would rely uponthe following decisions : (i) A.P. Public Service Commission, Hyderabad and anotherVs. B. Sarat Chandra and others; 1990(2) SCC 669(ii) Tarak Singh and another Vs. Jyoti Basu and others; 2005(1) SCC 201(iii) Gambhirdan K. Gadhvi V. State of Gujarat and others;(2022) 5 SCC 179 11. The learned Government Pleader Mr. Girase would submitthat it is a matter of selection. The state government has a prerogativein selecting a suitable candidate. Suitability cannot be a subject matterof judicial review. High Court can exercise writ jurisdiction havinginherent limitations and can only enquire into the decision makingprocess. There was no illegality in the selection and appointment ofrespondent no. 2/3.12. Mr. Sapkal, learned Senior advocate for the respondentno.2/3 would also oppose the petitions. He would reiterate thatselection of respondent no. 2/3, by the state government can only bechallenged if, either he was not eligible for being appointed under theprovisions under which the appointment has been made or that hisappointment is not in accordance with the statutory provisions. The 8 WP/ 2095 / 2024+ question, as to whether it would have been suitable if the petitioner -Syed Hashmi was selected and appointed, cannot be a ground for thisCourt to set aside the appointment of respondent no. 2/3. 13. Mr. Sapkal would submit that so far as eligibility ofrespondent no. 2/3 is concerned, the petitioners have not raised anydispute. Their only grievance seems to be that he was involved insome alleged misdeeds and had acquired disqualification on accountof conflict of interest. He would submit that the petitioners have notbeen able to demonstrate objectively, as to how the disqualification canbe attached when there is none available either under the Wakf Act orthe Wakf Rules. He would submit that though it is being made tobelieve that due to such misconduct alleged against respondent no.2/3, he was made to resign, his resignation was never accepted and hewas simply relieved from the post. At no point of time any show causenotice was issued to him much less any enquiry was conducted leadingto inflicting some punishment. He has had an unblemished career. Infact, he had taken initiative while working as the chief executive officerof the Wakf Board, to protect the interest of the Wakf. Several FIRswere lodged against the individuals usurping properties of the Wakfand some disgruntled souls were behind him. The decision to removehim from the post of the chief executive officer was politicallymotivated. 9 WP/ 2095 / 2024+ 14. Mr. Sapkal would further submit that even if the petitionersare trying to demonstrate that respondent no. 2/3 was deliberately keptout of the selection process, at no point of time, he was ever informedabout his exclusion from the selection process. He had appliedpursuant to the first advertisement and while issuing the subsequentadvertisement, it was expressly notified that the persons who hadalready applied under the earlier process, need not apply again.Meaning thereby that his candidature was alive and he has beenselected to the post having noticed that he was having more than 7year experience of working with the Wakf Board. He would, therefore,submit that without there being any proved misconduct and withoutthere being any enquiry ever initiated against him, it cannot bepresumed that he stood disqualified from being appointed as a memberof the Wakf Tribunal. Mr. Sapkal would rely upon the decisions in HariBansh Lal V. Sahodar Prasad Mahto and others; (2010) 9 SCC 655and 15. We have considered the rival submissions and perusedthe papers. 16. Taking up the issue regarding locus standi, the petitionerSyed Hashmi from writ petition no. 2095 of 2024, being a participant inthe same selection process in which process by the impugned 10 WP/ 2095 / 2024+ notification, respondent no. 2/3 was appointed, he certainly has thelocus standi.17. So far as the petitioner in writ petition no. 2084 of 2024 isconcerned, though initially he was not claiming any writ of quowarranto, by way of amendment, even that has been solicited againstrespondent no. 2/3 and the post of member of Wakf Tribunalconstituted under the Wakf Act, being a public office, writ of quowarranto would lie even at his instance albeit he is a stranger, thoughthe contours of the challenge would be circumscribed by B.R. Kapur(supra). There being no evidence to demonstrate that he either is notacting bona fide nor is there any circumstance to demonstrate that hehas been acting at the behest of someone disgruntled with theappointment of respondent no.2/3, in the conspicuous absence of anysubstantial and precise pleading in the affidavit in reply filed byrespondent no. 2/3, even writ of quo warranto would lie at his instance.We do not intend to burden this judgment by elaborately quoting theprinciples laid down in plethora of judgments cited at the bar andreferred to hereinabove. 18. This takes us to the actual challenge to the appointment ofrespondent no.2/3 on merits. Admittedly, he has been appointed inexercise of the powers under section 83(4)(b) of the Wakf Act read withrule 45(B)(2)(ii) of the Wakf Rules. Those read as under :- 11 WP/ 2095 / 2024+ Section 83.Constitution of Tribunals, etc.-(1) The State Government shall, by notification in the OfficialGazette, constitute as many Tribunals as it may think fit, for thedetermination of any dispute, question or other matter relating to awaqf or waqf property, eviction of a tenant or determination ofrights and obligations of the lessor and the lessee of suchproperty, under this Act and define the local limits and jurisdictionof such Tribunals;(2)…(3)…(4)Every tribunal shall consist of -(a)….(b)one person, who shall be an officer from the State CivilServices equivalent in rank to that of the Additional DistrictMagistrate, Member;….Rule 45.Terms and conditions of appointment ofChairman and members of Tribunal-(A)Appointment of Chairman of Tribunal- …(1)…(2)…(3)…(B)Appointment of Members of Tribunal-(1)….(2)Appointment as a Member of the Tribunal, under clause (b)of sub-section (4) of Section 83 of the Act shall be made-(i)…(ii)by appointment or re-appointment as the case may be of asuitable Government servant who has held a post not below therank as provided in sub-clause (i) and proviso thereof at the timeof his retirement. .... 12 WP/ 2095 / 2024+ 19. As can be understood, there is nothing in the provisions ofeither the Wakf Act or the Wakf Rules, so far as disqualification of acandidate is concerned. Though several allegations have beenattributed to respondent no. 2/3, as to the manner in which he allegedlymisused the powers while working as chief executive officer of theWakf Board and even if it seems to be a matter of fact that the thenlearned Minister of Department of Minorities Development hadattributed him with some allegations about the transactions wherein thewakf properties were allegedly sold illegally during his tenure as achief executive officer, at no point of time either any show cause noticewas issued to him or was there any enquiry initiated against him.Though the office notings read in the wake of such allegations thatultimately, the decision for his removal was taken on 27-06-2022, hehad tendered the resignation on 26-06-2022 about which there is areference in the government decision dated 27-06-2022. The decisionin itself does not give any particular either regarding acceptance of theresignation or the circumstances leading to the government taking suchdecision, though there is a communication dated 15-06-2022, wherebythe learned Minister holding the portfolio of Minister of MinoritiesDevelopment and Wakf had informed the Additional Chief Secretary toinitiate enquiry against respondent no. 2/3 for the alleged misdeeds, asobserved earlier; and also there is a reference to such circumstances / 13 WP/ 2095 / 2024+ allegations in the office notes preceding the decision to relieve himfrom the post of chief executive officer. 20. Pertinently, the original office notes, made available to us,copies of which are already on the record, reveal that the concernedsection officer in his basic noting in respect of the process beingundertaken pursuant to the first advertisement, had referred to andgiven instances of the complaints against respondent no. 2/3, the onlyobjection that was expressly noted by the section officer was in respectof the impropriety in appointing him in the wake of the fact that theissue regarding conflict of interest would arise as he was working asthe chief executive officer till 27-06-2022. Taking note of this fact andconsidering that if he was excluded from the selection process, therewould remain only one candidate in the form of Syed Hashmi, the ChiefMinister had directed one more advertisement to be issued. This beingthe internal / business of the office, there is nothing on the record todemonstrate that the substantial decision regarding disqualification ofthe respondent no.2/3 was ever taken by the state government muchless was communicated to him. 21. As the sequence demonstrates, the second advertisementwas issued on 11-07-2022, inviting applications from suitable /desirable candidates expressly stipulating that the persons who hadalready applied pursuant to the first advertisement would not be 14 WP/ 2095 / 2024+ required to apply again. Though it is a matter of record thatsubsequently, the process culminated in selecting and appointingrespondent no. 2/3, at no point on time, there was any decision toexclude him from the process which otherwise would have allowed himto challenge such disqualification. Though contrary notings wereregarding allegations against the respondent no.2/3 and the possibleissue of conflict of interest, it cannot be said that he was ever put out ofthe race by making any communication with him.22. It is necessary to bear in mind at this stage thecircumscribing limits on the powers of this Court either in issuing writ ofmandamus or that of quo warranto. This Court can only enter into thearena of decision making process and cannot examine suitability ofthe decision. Unless the person appointed is not fulfilling the eligibilitycriteria or is attached with certain disqualification, it would be aprerogative of the state to select a candidate. The issue regardingsuitability or desirability cannot play any role and cannot be gone intoso as to substitute the decision taken by the administration. 23.Afore mentioned circumstances would clearly indicate thatthe basic thrust of the petitioners is on the issue regarding propriety orsuitability of respondent no. 2/3 to occupy and hold the post of memberof a body which is a judicial forum. To repeat, admittedly, there is noproof of misconduct or even any enquiry resulting in demonstrating any
Decision
15 WP/ 2095 / 2024+ misconduct on the part of respondent no.2/3, irrespective of the notingof the subordinates, it was ultimately the prerogative of the State inselecting him in preference to the petitioner - Syed Hashmi from writpetition no. 2095 of 2024.24. Precisely for this reason, even though emphasis has beenlaid by the petitioners to demonstrate as to how the appointment ofrespondent no.2/3, as a member of the Wakf Tribunal has led tocatastrophic consequences, and initiation of contempt proceedingagainst him, the scope of the present enquiry would be limited inexamining the decision making process in his appointment. He wasneither disqualified nor had he faced any proved misconduct. He hadapplied pursuant to the advertisement and was considered and givenappointment by the impugned notification and the appointment order. 25.We, therefore, are of the considered view that there are notenough circumstances to demonstrate illegality in the appointment ofrespondent no.2/3. There is no merit in both the petitions. 26. The writ petitions are dismissed.27. Rule is discharged. [ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/