Bombay High Court
Javed Abdul Hamid Deshmukh vs The State Of Maharashtra And Others on 6 February, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
(1) 1046 pil 15.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
1046 PUBLIC INTERST LITIGATION NO. 15 OF 2021
JAVED ADBUL HAMID DESHMUKH
VERSUS
THE STATE OF MAHARASHTRA AND ORS.
...
Sr. Advocate for Applicant : Mr. Rajendra Deshmukh a/w. Kunal Kale i/b.
Devang Deshmukh
AGP for Respondents/State : Mr. P.K. Lakhotiya
Advocate for R/6 : Mr. N.E. Deshmukh
.....
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
DATE : 6th February, 2024
P.C. :-
1. During the lengthy hearing in this matter which commenced
yesterday after 4.30 p.m. and continued today after 4.00 p.m., it is obvious that
several directions of this Court as are set out in the orders dated 28.08.2023
and 25.01.2024, have been ignored by the State Government. Various
directions issued from time to time have not been respected to such an extent
that, as recorded in paragraph 7 of the order dated 25.01.2024, we would have
been justified in passing certain strict orders. However, we have focused more
on the cause for which the petition has been filed and have overlooked the
various lapses and blemishes on the part of the State Government.
(2) 1046 pil 15.21
2. Having considered the entire litigation history in this PIL and
taking into account the various orders passed, certain developments have taken
place, though at a snail's pace. Considering the issue of appointments, taking
into account the application filed by the State for extension of time and its
additional affidavit dated 02.02.2024 filed in the PIL, we direct that the 3 rd
Member of the Tribunal (3 Members of the Tribunal who perform judicial
functions) in the form of a person of the rank of Additional Collector, would be
appointed by this Saturday - 10.02.2024, keeping in view the statement made
by the learned AGP that the Hon'ble Chief Minister has already cleared the
appointment yesterday late in the evening.
3. We have perused ground 4 on page 57 of the affidavit in reply filed
by the Principal Secretary, Minorities Development Department that the
recruitment rules of the Maharashtra Wakf Tribunal have been placed before
the Law and Judiciary Department on 15.01.2024. We, therefore, grant 30
days time from today so as to enable the Law and Judiciary Department for
performing due diligence and thereafter, the said rules on being cleared, would
be published by the State Government by following the due procedure laid
down in law.
4. In so far as the appointment of the employees of the Wakf Board is
concerned, we are informed by the learned advocate for the Board that the
(3) 1046 pil 15.21
results of the selection process have been announced and documents
verification is being done. Within 15 days, the employees would be appointed.
The statement is recorded.
5. An issue is raised before us by the PIL-Petitioner as regards Class-
IV employees in the Wakf Tribunal having been deployed through Contractors.
In short, contractual staff members have been appointed or may be appointed
depending upon the vacancies. We refer to the order passed by this Court at
the Principal Seat in PIL No.148/2004 (Abdul Gaffar Abdul Qadir and Ors. V/s.
Superintendent, Public Trust Registration Office and Ors.) dated 20.10.2016
and we deem it apposite to re-produce paragraph 15 containing various
directions, hereunder:
"15. Hence, we dispose of the Petition by passing the following
order :-
ORDER
(i) We direct the State Government to establish the Tribunal under
Sub-Section (1) of Section 83 of the said Act of 1995 at Aurangabad
by making appointment of the 3 Members and by appointing 17 other
staff members on or before the end of February, 2017;
(ii) We direct the State Government to make available all necessary
infrastructure for the said Tribunal at Aurangabad considering the fact
that a Judicial Officer will be heading the Tribunal;
(iii) The State Government shall complete the process of
appointments and process of providing adequate infrastructure by the
end of February, 2017 and ensure that the Tribunal starts functioning
from 1 March, 2017;
(4) 1046 pil 15.21
(iv) We direct the State Government to ensure that the process of
filling in vacancies of the Members of the Tribunal/s likely to be
caused by the retirement of the Members or by expiry of the term of
the Members, as the case may be, shall be commenced at least six
months before the date on which the vacancy is likely to occur. The
State Government shall ensure that no post of a Member of the
Tribunal remains vacant;
(v) Considering the pendency of the matters in Mumbai and
Mumbai Suburban Districts and Beed District, we direct that the
Tribunal shall hold camp sittings at the District headquarters of these
Districts for such duration as may be decided by the Chairperson of
the Tribunal;
(vi) We direct that the Tribunal shall hold sittings at regular
intervals for sufficient duration at Divisional Headquarters of each
Revenue Division of the State. While holding the sittings at Divisional
Headquarters, the Tribunal shall hear the cases arising out of the
Districts which are part of that particular Revenue Division;
(vii) Needless to add that the State Government shall make available
all the infrastructure for holding of sittings at District places or at
district headquarters as provided in paragraph 13 of this Judgment;
(viii) As and when the filing of cases increases or the pendency
increases, on a recommendation being made by the Chairperson of the
Tribunal, the State Government shall consider of establishing
additional Tribunals by exercising power under Sub-section (1) of
Section 83 of the said Act of 1995;
(ix) With the above directions, the Petition is disposed of;
(x) Rule is made partly absolute on above terms;
(xi) For reporting compliance with the directions, the Petition shall
be listed under the caption of "Directions" on 9th March, 2017;
(xii) Civil Application No.6 of 2005 does not survive and the same
is disposed of accordingly."
(5) 1046 pil 15.21
6. It is obvious from the above re-produced directions that this Court
had directed the Government to establish a Tribunal under Section 83(1) of the
1995 Act by making appointments of 3 Members and by appointing staff
members by the end of February-2017. This order is dated 20.10.2016. We
are in February - 2024, which is 7 years, thence. Yet, the Government is still in
the process of making appointments and the 3 rd Member of the Tribunal is to be
appointed by this Saturday. In Clause-15 (ii), this Court had directed that
necessary infrastructure for the Tribunal at Aurangabad be provided since a
Judicial Officer would be heading the Tribunal. Additional infrastructure was
to be supplied after completing the process of appointments by February-2017
and the Tribunal was to start functioning from 01.03.2017. No doubt, the
Tribunal has commenced its activity, but with meager infrastructure. The Haj
House which accommodates the Tribunal was inaugurated on 02.02.2024 and
that too under the orders of this Court. The above re-produced directions
clearly indicate to the State Government that it has to perform certain functions
and take certain decisions in order to ensure that the Tribunal functions
smoothly.
7. Our attention is drawn to the letter dated 18.09.2023 issued by the
District Judge / Chairman of the Maharashtra State Wakf Tribunal,
Aurangabad. The concerned authority has brought to the notice of the
(6) 1046 pil 15.21
Principal Secretary, Minorities Development Department as regards the urgent
requirements that are to be fulfilled if the Tribunal was to function properly. It
was pointed out that there are 2270 cases pending and if adequate staff is to be
appointed in accordance with the civil manual, which, in the light of the
functioning of the Tribunal under the Code of Civil Procedure, 1908 is most
necessary, the State Government should proceed to make such appointments.
The charts set out in the said communication indicate the various posts that are
most necessary for the functioning of the Tribunal.
8. However, this communication dated 18.09.2023, is referred to by
the Principal Secretary in her affidavit in reply dated 02.02.2024, more
particularly Clause-VI on page 58 wherein it is stated that 16 posts are filled in,
including contractual staff and 5 posts are vacant. The civil manual mandates
that the staff of the Court cannot be contractual employees. Class-III and Class-
IV employees in a Court cannot be appointed on contract basis. We, therefore,
direct that the State shall not appoint any staff in the Tribunal on contractual
basis and shall follow the civil manual for making recruitment.
9. We are informed that the Haj House is a large structure which
accommodates the Tribunal. It has around 10 to 12 rooms which are used by
those pilgrims who are preparing to take the Haj pilgrimage journey.
Considering the norms that are made applicable to the Haj pilgrims in Mecca,
(7) 1046 pil 15.21
special training is to be imparted to such Haj pilgrims before they embark upon
their journey for Haj. These rooms are used like dormitories. There is also a
prayer house and an auditorium. The PIL-Petitioner has expressed an
apprehension that the Haj House may be used by the people's representatives
who may hold political meetings or gatherings in the Haj House as is the
common sight in Government Circuit Houses and Government Rest Houses.
We, therefore, direct that as the Tribunal, which is a Judicial forum, is
functioning in the said Haj House and considering the other facilities that are
available for the purposes of the Haj pilgrims and their training, it would be
appropriate that there are no meetings held by public figures or people's
representatives in the said premises since that would also be causing great
disturbance to the hearing in matters before the Judicial forum.
10. In the affidavit in reply dated 02.02.2024, we are informed that
the revised staffing pattern is pending approval before the Finance Department
since 29.11.2023. We, therefore, grant 45 days more to the concerned
department to grant its approval and thereafter, the recruitment as per the civil
manual would be commenced by the Appropriate Authorities and the same
would be concluded by issuance of appointment orders. An apprehension is
voiced that if the Parliamentary Elections or the State Assembly Elections are
declared, the selection process may come under the code of conduct. We do
(8) 1046 pil 15.21
not think that this could be an impediment since this would be a recruitment
for the purposes of a Judicial forum and the code of conduct would not be an
impediment, to be a reason to postpone the selection process which shall be
completed within 90 days after the revised staffing pattern is approved.
11. List this PIL for further consideration on 29.02.2024.
12. The Civil Application seeking time to appoint the Additional
Collector as a Member, stands disposed off.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
