Calcutta High Court (Appellete Side)
Newaz Sharif vs The State Of West Bengal And Others on 19 February, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
WPA No. 4897 of 2020
With
WPA No.7467 of 2020
IA No: CAN 1 of 2020
Newaz Sharif
Vs.
The State of West Bengal and others
For the petitioner : Mr. Soumen Dutta,
Mr. Subhadeep Chatterjee
For the State in
WPA 4897 of 2020 : Mr. Ashim Kumar Ganguly,
Mr. Bellal Shaikh
For the State in
WPA 7467 of 2020 : Mr. Sirsanna Bandyopadhyay
For respondent no.4 : Mr. Sabyasachi Chatterjee,
Mr. Avik Ghatak,
Ms. Debolina Chattaraj,
Mr. Sushovan Dey
Hearing concluded on : 09.02.2021
Judgment on : 19.02.2021
Sabyasachi Bhattacharyya, J:-
1. IA No: CAN 1 of 2020 in WPA No. 7467 of 2020 is disposed of in view
of the urgency involved and both the writ petitions are taken up for
hearing.
2. The petitioner applied on October 7, 2017 before the Inspector
General of Registration and the District Registrar for appointment as a
Muhammadan Marriage Registrar (M.M.R.) in the Panrui Police
Station area.
3. The Joint Commissioner of Stamp Revenue issued a letter to the
District Registrar on January 4, 2018, requesting the latter to take
necessary action for temporary appointment of MMR. The Assistant
Secretary, Government of West Bengal, also issued a letter on July 5,
2018 to the Joint Commissioner of Stamp Revenue to take necessary
steps on the basis of the petitioner's application for appointment to
the post of M.M.R. (Temporary). Subsequently, the District Registrar
published an advertisement inviting applications for appointment of
MMR in respect of the Panrui Police Station, on which the petitioner
again applied for the same post. On September 25, 2018, the District
Registrar issued a letter to the Inspector General of Registration and
Stamp Revenue, enclosing a copy of the advertisement and the
petitioner's application, recommending his name for appointment in
the said post. The Joint Commissioner issued a letter on November
16, 2018 to the District Registrar requesting him to issue a fresh
advertisement, since one Abdul Aziz Chowdhury (respondent no.4)
had also applied for appointment to the same post. Accordingly,
another advertisement was published by the District Registrar on July
2, 2019, on which the petitioner reapplied.
4. The District Registrar issued on July 2, 2019 a letter in terms of the
advertisement, enclosing a list of all recommended candidates, where
the petitioner's name appeared at Serial No.1. The said list has been
annexed at page 39 of the writ petition. In the remarks column
against the petitioner's name, the Voter ID, AADHAAR and Ration
Card were mentioned.
5. However, the name of respondent no.4 appeared at Serial No.6. In the
remarks column, respondent no.4 was mentioned as "Overage".
6. Under the said list, a remark was recorded by the District Registrar,
recommending the petitioner for the post of Temporary M.M.R. of
Panrui P.S., based on residence, educational qualification, experience
and other particulars, among all the candidates.
7. Learned counsel for the petitioner submits that on March 13, 2020 an
interim order was passed in WPA No.4897 of 2020, restraining the
respondent nos.2 and 3 from giving appointment in the post of M.M.R.
within Panrui Police Station till March 31, 2020, which order was
subsequently extended from time to time, by dint of the general
extension order passed by a Special Bench of this court in view of the
pandemic situation on March 24, 2020 and subsequently on June 23,
2020, lastly till September 30, 2020.
8. However, vide order dated June 25, 2020, the District Registrar,
Birbhum, directed the erstwhile M.M.R. of the Sainthia P.S., who was
acting as M.M.R. of the Panrui P.S., to hand over records of the Office
of the M.M.R., Panrui P.S. area to respondent no.4, who was
appointed as temporary M.M.R. of the latter P.S. Such order was
passed in patent contravention of the interim order initially granted by
this court and subsequently extended from time to time till September
30, 2020 by the general orders of extension passed by the Special
Bench of this court.
9. Learned counsel for the petitioner argues that, as per Clause 3(b) of
the Notification dated August 14, 1929 issued by the Law (Judicial)
Department (Registration) of the Government of West Bengal, a three-
tier procedure has been provided for making temporary appointment
of M.M.R.s. The first step is nomination by the District Registrar. At
the second stage, the District Registrar's nomination is to be
submitted to the Government by the Inspector General of Registration
who, if he disapproves of the District Registrar's nominees, may
recommend the appointment of any other candidate. A temporary
licence shall be issued in the third tier to the candidate approved by
the local (State) Government.
10. Learned counsel further argues that, although the District Registrar
had specifically recommended the name of the petitioner and the
Inspector-General of Registration did not disapprove of the same,
there was no option for the State Government but to approve such
recommendation. However, despite respondent no.4 having been
remarked to be overage in the list of candidates recommended by the
District Registrar, age relaxation was given without rhyme or reason to
the respondent no.4 in order to favour the said respondent and
appoint him in the post-in-question.
11. Learned counsel for the petitioner places reliance on the settled legal
proposition that if an order is passed in violation of an interim order of
a competent court, such order is void and a nullity in the eye of law.
The appointment of the respondent no.4 being in violation of the
interim order granted by this Court, is a nullity, it is argued.
12. That apart, age relaxation was given to respondent no.4 in violation of
the notification dated August 14, 2019 and is de hors the law.
13. Lastly, since the Inspector-General of Registration did not disapprove
of the recommendation of the petitioner's name by the District
Registrar, there was no scope for the Government to disapprove of the
same, much less of the District Registrar to recommend the name of
someone else, in this case respondent no.4, for the post of temporary
M.M.R.
14. Learned counsel appearing for the State respondent places reliance on
a report filed by the General Secretary, Law Department, indicating
that the upper age limit of respondent 4 was relaxed vide order no.64-
L(St.)/LW/0/4M- 101/2019 dated March 3, 2020 and was
subsequently approved vide order no.63-L(St.)/4M- 101/2019 dated
March 3, 2020; however, no licence has yet been issued in favour of
respondent no.4 enabling him to work as temporary M.M.R. in view of
the restraint order passed by this Court.
15. Learned counsel for the State respondent submits that Clause 4B of
the relevant Notification dated August 14, 1929 empowers the State
Government to relax the minimum age or upper age limit of a
candidate for being appointed as a temporary Muhammadan Marriage
Registrar. Such power was duly exercised in the present case, it is
submitted. That apart, it is argued that Annexure P-17 at page 55 of
the writ petition, which is Memo No.235 dated July 16, 2020 issued
by the District Registrar, amply shows the context of the appointment
order being issued to respondent no.4. It is indicated therein that the
interim restraint order passed by this Court came to the knowledge of
the District Registrar subsequent to the appointment of respondent
no.4, since it was not communicated to the Office of the District
Registrar. Upon getting information regarding the general extension of
such interim order subsequently, the District Registrar sought
necessary direction from the Inspector-General of Registration and
Commissioner of Stamp Revenue, West Bengal.
16. Learned counsel for the respondent-authorities places reliance on
Clause 3(b) of the Notification dated August 14, 1929 to indicate that
the three-tier step stipulated therein culminates in approval by the
State Government. As such, it is submitted, the State Government
had ample discretion to recommend the name of the respondent no.4
instead of the petitioner for the post-in-question.
17. Learned counsel places reliance on Mallikarjuna Rao and others vs.
State of Andhra Pradesh and others, reported at (1990) 2 SCC 707, in
support of the proposition that it is neither legal nor proper for the
High Courts to issue directions or advisory sermons to the executive
in respect of the sphere which is exclusively within the domain of the
executive under the Constitution. The Constitution does not permit
the court to take such course of action, it is submitted. Learned
counsel further places reliance on an unreported judgment of this
court dated January 19, 2021, passed in WPA No.3159 of 2020
wherein a writ petition of a candidate for a similar post had been
dismissed upon observing that there was sufficient discretion on the
part of the IGR and the State Government to disapprove all the
nomination made by the District Registrar and appoint someone else
from the initial list of recommendations as M.M.R. for certain police
stations.
18. Thus, it is submitted that the appointment of Respondent No. 4
instead of the writ petitioner was valid in law and the writ petition
ought to be dismissed.
19. As far as the unreported judgment cited by the State respondent is
concerned, the writ petitioner therein had challenged the fact that he
was not appointed as a temporary M.M.R. for a particular police
station, despite having been recommended by the District Registrar.
In addition, this court was dealing with the contention that there
cannot be more than one appointment of M.M.R. for a single police
station which was turned down by this Court.
20. However, the facts of the present writ petitions are different. A
distinguishing feature here is the relaxation of the age of private
respondent no.4 without recording any special reason as
contemplated in Clause 4B of the relevant Notification, without which
the question of bye-passing the petitioner for the post would not arise
at all.
21. The ratio laid down in Mallikarjuna Rao (supra) has been
circumscribed by several decisions of the Supreme Court. Although it
is undisputed that the interference under Article 226 of the
Constitution has its limitations, the present case does not concern
any direction or "adversary sermon" being issued to the executive.
The test to be applied in the present case is whether the executive
exceeded its exclusive domain and acted in colourable exercise of its
authority de hors the governing rules and procedure, in which case
this court has sufficient jurisdiction to interfere under Article 226. In
the said case, a question arose as to whether the High
Court/Administrative Tribunal can direct the State Government to
frame or amend the existing statutory rules to alter the conditions of
service of civil servants. Such a case would, undoubtedly, amount to
legislation on the part of the judiciary, which is incompatible with the
Constitutional scheme and would adversely affect the separation of
powers.
22. However, the contention that any interference under Article 226 of the
Constitution is barred even when there is patent abuse of executive
power and the executive traverses beyond its authority as conferred by
law, hits at the very basic structure of the Constitution, of which
judicial review is an integral part. On the very same logic which lent
life to the ratio laid down in Mallikarjuna Rao (supra), that is, the
jealous protection of separation of powers, the power of judicial review
in such cases of abuse by the executive is also to be equally guarded.
23. In the present case, the post-facto justification given by way of a
report of the Joint Secretary, Law Department dated January 4, 2021,
handed over in court on behalf of the State, is insufficient compliance
with Section 4B of the Notification dated August 14, 1929. The
explanation given therein was never reflected in the impugned order of
appointment of the respondent no.4 as a temporary M.M.R. for the
Panrui Police Station.
24. A decision under Clause 4B of the Notification has to be visited by a
special reason to be given in writing, which is absent in the present
case.
25. Moreover, the lame excuse that no licence was issued to the M.M.R.
does not cut the ice, since the issuance of an order on June 25, 2020,
appointing Abdul Aziz Chowdhury (respondent no.4) as temporary
M.M.R. of the Panrui P.S. area is in direct contravention of the interim
order passed by this court, as extended till September 30, 2020 by the
general orders of extension passed by the Special Bench of this court.
The ignorance of such extensions feigned by the District Registrar on
the ground of lack of communication is unacceptable and cannot be
pardoned. The District Registrar and the State Authorities ought to be
more cautious in violating court orders insolently at their whims. It is
clear as day-light from the order dated March 13, 2020 passed in WPA
No.4897 of 2020 that the respondent-authorities were represented
through counsel on the date of such order. The subsequent general
extensions of all interim orders were, as evident from the orders
themselves, published in the official website of this court,
communicated to subordinate courts and all tribunals as well as to
the learned Advocate General and other authorities, with a request to
circulate among lawyers, litigants and others interested. Such
circulation and communication was more than sufficient to infer
knowledge of the District Registrar regarding the subsistence of the
interim order in the matter. In fact, the act of the District Registrar in
giving appointment to respondent no.4 in the teeth of the interim
order of this court borders on the contumacious and reeks of potent
mala fides and favouritism. However, this court chooses to stop short
of issuing a rule of contempt on such violation only because the
instrument of contempt is an extreme measure, not to be used at will
for unworthy officials who, despite holding the responsible office of
District Registrar, have the temerity of feigning ignorance of such
circulated general orders.
26. Thus, the appointment of respondent no.4 vide the order of the
District Registrar dated June 25, 2016, which is impugned in the
present writ petition, is patently illegal and without jurisdiction on
such score as well.
27. That apart, for the State Government to approve of a candidate under
the three-tier system envisaged in Clause 3(b) of the Notification dated
August 14, 1929, there has to be a prior nomination by the District
Registrar, forwarded to the Government by the Inspector-General of
Registration. In the present case, the District Registrar specifically
recommended the petitioner's name for such approval and there is
nothing on record to show that the IGR disapproved of the petitioner's
name on any score, as reflected from the impugned order. The
subsequent nomination of respondent no. 4 was not preceded by
disapproval by the IGR of the petitioner's name. The approval by the
State Government, although discretionary, is not an unfettered tool to
be used as a means of favouritism or a frill of fancy of the
Government. Such approval has to be preceded by proper
nominations which, in the present case, was only done in respect of
the petitioner. In view of the age relaxation of respondent no. 4 being
held to be de hors the extant procedure, it was the petitioner who was
entitled to the post of temporary M.M.R. of the Panrui Police Station
area.
28. Hence, WPA No.4897 of 2020 and WPA No.7467 of 2020 are allowed,
thereby setting aside the order of the District Registrar, Birbhum
dated June 25, 2020 appointing private respondent no.4 as temporary
Muhammadan Marriages Registrar (M.M.R.) for the Panrui Police
Station area and directing respondent no.1 to immediately give
appointment to the petitioner, namely, Newaz Sharif, as temporary
Muhammadan Marriage Registrar for the Panrui Police Station area.
Such appointment will be formally given at the earliest, positively by
three weeks from date.
29. There will be no order as to costs.
30. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
