Molla Abdus Samad vs State Of West Bengal And Ors
2022 Latest Caselaw 7822 Cal

             IN THE HIGH COURT AT CALCUTTA
            CONSTITUTIONAL WRIT JURISDICTION
                       (Appellate Side)

                                       Reserved on: 14.11.2022
                                       Pronounced on: 25.11.2022

                                               WPA (P) 351 of 2022

Molla Abdus Samad
                                                        ...Petitioner
                                -Vs-
State of West Bengal and Ors.
                                                       ...Respondents

Along with CONSTITUTIONAL WRIT JURISDICTION (Original Side) WPO 10 of 2018 Molla Abdus Samad & Anr.

...Petitioners

-Vs-

State of West Bengal and Ors.

...Respondents

Present:-

Mr. S.S. Arefin, Ms, Payel Ghosh, Ms. Nadira Abedi, Ms. Priyanka Sharma, Mr. Kaustuv Mitra, Advocates ... for the petitioners Mr. S.N. Mookherjee, ld. AG Sk. Md. Galib, Mr. Yash Singhi, Advocates ...for the State in WPA (P) 351 of 2022 Mr. S.N. Mookherjee, ld. AG Mr. Sirsanya Bandopadhyay, Mr. Arka Kumar Nag, Advocates ...for the State in WPO 10 of 2018 Mr. T.M. Siddiqui, Mr. Nilotpal Chatterjee, Ms. A. Pandey, Advocates ... for the respondent nos. 4 & 5 in WPA (P) 351 of 2022 2 WPA (P) 351 of 2022 with WPO 10 of 2018

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE Prakash Shrivastava, CJ:

1. This order will govern the disposal of WPO 10 of 2018 and

WPA (P) 351 of 2022.

2. WPO 10 of 2018 was filed by the petitioner raising

grievance that Waqf Tribunal, West Bengal had become defunct with

effect from 1st of December, 2017 on account of non-availability of

one ex-officio member leading to the inconvenience of the lawyers

and the litigants. The further plea was raised that after coming into

force of the Waqf (Amendment) Act, 2013, the State Government had

not framed any Rules though the Ministry of Minority Affairs,

Government of India had prepared the Model Waqf Rules, 2016.

Hence, in the petition, a direction was sought to the official

respondents to repeal/amend the West Bengal Waqf Rules, 2001 by

incorporating proper amendment following guidelines of Model Waqf

Rules, 2016. A prayer was also made to ensure uninterrupted

functioning of the Waqf Tribunal, West Bengal.

3. Undisputedly, after filing of WPO 10 of 2018, West Bengal

Waqf Rules, 2022 have been notified on 6th of May, 2022. The

members of the Waqf Tribunal have been appointed in terms of

Section 83(4) of the Waqf Act, 1995 (for short, 'the Act'). Infact, the

appointment of the members has been challenged by the petitioner in

the connected petition. Hence, nothing survives in WPO 10 of 2018

which is accordingly dismissed as infructuous.

                                    3           WPA (P) 351 of 2022 with
                                                       WPO 10 of 2018

4. WPA (P) 351 of 2022 is a public interest petition filed by

the petitioner claiming himself to be a practicing advocate of his Court

and member of the Bar Association of Waqf Tribunal. In this public

interest petition, the petitioner has challenged the appointment of

respondent nos. 4 and 5 as member of the Waqf Tribunal on the

ground that their appointment has been made in violation of the

provisions of Section 83(4)(b) and (c) of the Act and without

complying with the provisions of Rule 64(3) of the Waqf Rules, 2022.

5. Submission of learned counsel for the petitioner is that

respondent no. 4 was working as Chief Executive Officer of the Waqf

Board and the respondent no. 5 was working as Senior Law Officer in

the Board of Waqf, therefore, their appointment under Section

83(4)(b) and (c) of the Act cannot be sustained. His further submission

is that there is conflict of interest as respondent no. 4 was earlier

posted as Deputy Chief Executive Officer or Chief Executive Officer

of the Board of Waqf and had passed orders in that capacity, therefore,

he cannot be appointed as member of the Tribunal to examine the

correctness of his own orders. He further submitted that respondent

no. 5 does not have any specialisation in Mohammedan law and

jurisprudence which is the mandatory requirement and the respondent

nos. 4 and 5 have been appointed by following the pick and choose

method and the procedure prescribed under Rule 64(3) of the West

Bengal Waqf Rules, 2022 has not been followed.

6. Learned Advocate General has opposed the petition by

submitting that PIL in a service matter cannot be maintained and that

no writ of quo warranto has been prayed, therefore, appointment of

respondent nos. 4 and 5 cannot be questioned. He has also submitted 4 WPA (P) 351 of 2022 with WPO 10 of 2018

that respondent nos. 4 and 5 fulfil the eligibility condition, therefore,

their suitability cannot be examined and that there is no conflict of

interest in appointment of the said respondents. Learned Advocate

General has also submitted that the Rules of 2022 are not applicable in

the appointment of the respondent nos. 4 and 5.

7. Learned counsel for the respondent nos. 4 and 5 has also

supported the submission of learned Advocate General and has

submitted that they fulfil the requisite eligibility conditions.

8. We have heard learned counsel for the parties and perused

the record. Section 83(4) of the Act provides for the eligibility

conditions for appointment of the members of the Waqf Tribunal and

reads as under:

"(4) Every Tribunal shall consist of -

(a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member,

and the appointment of every such person shall be made either by name or by designation."

9. So far as the respondent no. 4 is concerned, he has been

appointed as member of the Tribunal under Section 83(4)(b) of the

Act which requires the person concerned to be "an officer from the

State Civil Services equivalent in rank to that of the Additional

District Magistrate". The notification dated 18th of February, 2022

reveals that the respondent no. 4 was working as Joint Secretary, 5 WPA (P) 351 of 2022 with WPO 10 of 2018

Minority Affairs & Madrasah Education Department, Government of

West Bengal and is of West Bengal Civil Services (Executive) batch,

1998. He has been disclosed to be a Senior Officer of the State

Government having service length of more than 22 years. He had

served as Revenue Officer for about 3 years after being selected

through the Public Service Commission. (PSC). Thus, respondent no.

4 fulfils the requisite eligibility conditions prescribed under Section

83(4)(b) of the Act.

10. So far as the issue of conflict of interest raised by the

petitioner in respect of appointment of respondent no. 4 is concerned,

he had worked as Chief Executive of the Board of Auqaf. The

appointment of the respondent no. 4 as CEO was in terms of Section

23 of the Act and in terms of Section 23(3), the CEO is the ex-officio

Secretary of the Board and is under the administrative control of the

Board. It has been pointed out that the respondent no. 4 as CEO was

only implementing and/or carrying out the resolutions and orders of

the Board taken on various occasions. Therefore, there is no question

of any conflict of interest. Once the respondent no. 4 has been found

to be eligible for appointment, the issue of his suitability for the post

need not be gone into by the Court in view of the judgments of the

Hon'ble Supreme Court in the matter of Mahesh Chandra Gupta vs.

Union of India and Others reported in (2009) 8 SCC 273 and in the

matter of M. Manohar Reddy and Another vs. Union of India and

Others reported in (2013) 3 SCC 99.

11. Learned counsel for the petitioner has also raised an issue

that while making the appointment of the respondent no. 4, the 6 WPA (P) 351 of 2022 with WPO 10 of 2018

Selection Committee, as provided by Rule 64(3) of the West Bengal

Waqf Rules, 2022, has not been constituted.

12. Record reflects that the appointment of respondent no. 4 as

member of the Tribunal was made on 18th of February, 2022 whereas

West Bengal Waqf Rule, 2022 has been notified subsequently on 6th

of May, 2022. Hence, the petitioner cannot allege violation of the Rule

which has come into force subsequently.

13. So far as respondent no. 5 is concerned, his eligibility for

appointment has been questioned on the ground that he does not have

knowledge of Muslim law and jurisprudence. The affidavit-in-

opposition filed by respondent no. 5 reveals that respondent no. 5 was

Senior Law Officer of the Board of Waqf. He is of the cadre of West

Bengal Legal Services under the Law Department, Government of

West Bengal and was selected through PSC. He is an LL.B and LL.M.

degree holder and has studied Muslim law and jurisprudence as

subject in law. As Law Officer, his reporting officer was the Chief

Executive Officer of the Board. Relevant material relating to his

qualifications has been placed on record. No conflict of interest in his

appointment also has been found and he fulfills the eligibility

condition prescribed under the Act.

14. That apart, a perusal of the public interest petition also

reveals that there is no prayer seeking a writ of quo warranto as

against the appointment of respondent nos. 4 and 5. Hence, in view of

the judgment of the Hon'ble Supreme Court in the matter of Hari

Bansh Lal vs. Sahodar Prasad Mahto and Others reported in

(2010) 9 SCC 655, the PIL in service matter cannot be entertained.

                                   7            WPA (P) 351 of 2022 with
                                                       WPO 10 of 2018

15. Hence, we find no ground to interfere in this public interest

petition which is accordingly dismissed.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 25.11.2022 ___________ PA(RB)

(A.F.R./N.A.F.R.)