Matiur Rahman vs State of Assam and Others

H.K. Sema, J.—This case has a chequered history. The dispute involved in this petition pertains to selection of Moslem Marriage Registrar and Kazi (in short the, MMR & Kazi) at Islampur under the Bihpuria Police Station in the district of Lakhimpur, Assam.

Basic facts stated briefly may be noted. On 9.6.95 the post of MMR& Kazi was advertised notifying the last date of application as on 10th July ''95 in the office of the District Registrar, Lakhimpur. The requisite qualification as well as the age of the applicant was also prescribed in the advertisement. The requisite qualifications were prescribed as under:

Certificate of passing the Assam Senior Madrassa Final Examination.

Certificate that candidate possess sufficient acquaintance with the (1) Arabic Language (2) Muslim Laws of Marriage and Divorce duly signed by three Mohammadan Gentlemen of respectable position.

Certificate of good moral character.

Permanent residential certificate.

Applicant should be a citizen of India.

5 (five) applications were received by

the District Registrar, Lakhimpur and forwarded to Inspector General of Registration (IGR), Assam to be placed the same before the Permanent Committee for selection of candidate. Thereafter, on 22.12.95 the Permanent Committee vide resolution No. 2 selected the writ Petitioner Md. Matiur Rahman as a suitable candidate among the 5 applicants for being MMR & Kazi and requested the State Government for according the approval. This selection was challenged by the Respondent No. 4 Md. Abdul Quasim Khan by filing a Civil Rule No. 236/96 which was dismissed by the learned Single Judge by judgment and order dated 12.9.96, on the ground that the Court does not possess the expertise to correct the decision of the Permanent Committee arrived at after examining the inter-se merit of the candidate by expert committee, by exercising its judicial review. The learned Single Judge was further of the view that the judicial review is not an appeal and Court cannot usurp the discretional power of the administrative authority in the absence of any impropriety or illegality. Being aggrieved, preferred an appeal registered as Writ Appeal No. 1242/96 which was disposed of by the Division Bench on 9th Dec. ''96 modifying the order passed by me learned Single Judge with a direction to the Appellant to file an appeal/representation before the competent authority and the competent authority was directed to dispose of the representation within one month from the date of receipt of the representation. The representation was heard by the Secretary to the Govt. of Assam, Revenue (Registration) Department and by its order dated 5th June ''97 remanded to the Inspector General of Registration to re-examine the matter as according to the competent authority, the Appellant Md. Abdul Quasim Khan has passed me Assam Senior Madrassa Final Examination which is a preferential qualification recognised under Rule 4 of the rules whereas Md. Matiur Rahman (present writ Petitioner) did not pass the Assam Senior Madrassa Final Examination.

Pursuant to the aforesaid order, the Permanent Committee held its meeting again on 18.8.97 in the Office Chamber of IGR, Assam where the following Members were present:

The Committee after threadbare deliberations could not come to consensus choice and it was referred to the State Government for a decision. Relevant portion of the resolution dated 18.8.97 of the Permanent Committee reads:

It may be mentioned that after threadbare discussions the members differed in their opinions arid hence no consensus could be reached, while members namely, Md. Matiur Rahman, Md. Abdul Mannan Choudhury and Md. Salehuddin Ahmed were of the view that Md. Abul Quasim Khan be selected as MMR & Kazi as he is more meritorious than Md. Matiur Rahman, but Prof. M.Y. Tatnizi and Md. Abdul Mazid opined that since Md. Rahman is equally qualified and resides in the house where the Kazi office is located having additional qualification of "Mufti" his selection made by the Permanent Committee vide resolution No. 2 of its meeting of 22.12.95 be retained.

The Permanent Committee, therefore, decided that the matter be referred to the Government for a decision.

(Emphasis supplied).

Pursuant to the aforesaid order, the Respondent Government by notification dated 3rd Oct. ''97 in exercise of power conferred by Section 3 of the Assam Moslem Marriage and Divorces Registration Act, 1935 (Assam Act DC of 1935) had issued a licence to Respondent No. 4 Md. Abul Quasim Khan. Being aggrieved, Petitioner has impugned the order dated 5th June, ''97 passed by the Respondent No. 1 and the notification dated 3rd Oct. ''97 issued by the Respondent No. 2.

Mr S.A. Laskar assisted by Mr. M.H. Rajborbhuiya raised the following contentions:

(a) Respondent No. 1 exceeded his jurisdiction while remanding the matter to the Permanent Committee for fresh consideration.

(b) That the notification dated 3rd Oct ''97 issuing license to the Respondent No. 4 has been made without taking any decision by the appropriate Government.

With regard to the point (a), there is no dispute that the Respondent No. 4 herein, Md. Abdul Quasim Khan has filed a representation before the Secretary, Revenue (Registration) pursuant to the direction issued by the Division Bench of this Court, disposing the Writ Appeal No. 1242/96 on 9th Dec.''96. While disposing of the Writ Appeal, the Division Bench inter-alia passed the following directions:

The Appellant/Petitioner may file a certified copy of this order alongwith a copy of the appeal/representation which he has made and also the affidavit-in-opposition which has been filed by the Respondent No. 4 in Misc. Case No. 1079/96 before, the competent authority of the State Govt. The Competent authority after receiving the certified copy of our order and the documents mentioned above, will adjudicate on this question at an early preferably within a period of one month as to whether approval has to be granted or not to the selection made by the Permanent Committee constituted under the rules. In case, approval is granted, a regular appointment letter will be issued. It is being made clear that besides the documents which we have referred to above, it will be open for the Petitioner/Appellant and the Respondent No. 4 to submit any representation or documents on which they may be placing reliance.

Pursuant to the aforesaid direction, Respondent No. 1 examined the representation in detail and after hearing both the parties was of the opinion that the writ Petitioner Md. Matiur Rahman has not passed the Assam Senior Madrassa Final Examination whereas Md. Abdul Quasim Khan, Respondent No. 4 has passed the Assam Senior Madrassa Final Examination. Secondly, in the Permanent Committee meeting held on 22.12.95, the name of the writ Petitioner Md. Matiur Rahman appear in serial No. 2 of the nomination of the merit list whereas the name of Md. Abul Quasim Khan, Respondent No. 4 appear at serial No. 1. Based on these two grounds, the Respondent No. 1 was of the view that the Permanent Committee while selecting the writ Petitioner Md. Matiur Rahman in preference to Ors. including Respondent No. 4 had not given any reasons as to why it considered Md. Matiur Rahman as the most suitable candidate. It is on these two grounds that the Secretary has referred back the matter to the Permanent Committee to re-examine keeping in view of the qualification of the candidate prescribed under the rules and to select a suitable candidate. The Permanent Committee was further directed that in case of differences of opinion, reasons must be indicated.

After going through the reasoning of the order dated 5th June ''97 passed by the Respondent No. 1, it is my considerate opinion that not only the Respondent No. 1 has exercised jurisdiction under Rule 6 of the rules but also pursuant to the direction of this Court in Writ Appeal as referred to above. I am further of the view that the reasoning assigned by the Respondent No. 1 is based on reasonable exercise of power, fairness, for the ends of justice and made in public interest and it cannot be faulted.

Rule 4 of the Assam Moslem Marriages and Divorces Registration Rules, 1935 (in short the Rules) has laid down the eligible criteria as to who may be nominated as MMR. Itreads:

Candidates for permanent posts of Moslem Registrar will be preferred if thev have passed the Assam Senior Madrassa Final Examination: and they must be of good moral character. In the selection of Moslem Registrar preference shall ordinarily be given to candidates who are natives of or domicile in Assam and who reside at a convenient place within the limits of the jurisdiction proposed: but no person shall be nominated a Moslem Registrar merely by reason of some supposed hereditary right. The fact that a person is a pensioner shall not be a bar.

(Emphasis supplied)

A cursory reading of Rule 4, it consist of two parts. While the preference to a candidates having passed the Assam Senior Madrassa Final Examination and must be of good moral character is a first preference and the second part with regard to the preference of a candidates who are natives of or domicile in Assam and who reside at a convenient place within the limits of the jurisdiction proposed is a second preference and such preference is ordinarily given to a candidate in absence of candidates of first preference. In my considerate view, the words "preference shall ordinarily be given to candidates...and who reside at a convenient place within the limits of the jurisdiction proposed" employed in Rule 4 of the rules is used in generic sense and will not prevail over the first preference of the candidate possessing of the passing of the Assam Senior Madrassa Final Examination. This would mean that if one candidate possess the qualification of Assam Senior Madrassa Final Examination passed and the other candidate reside at a convenient place within the limits of the jurisdiction proposed, the candidate possessing the qualification of the Assam Senior Madrassa Final Examination passed will be preferred that the later. However, if a candidate possess the qualification of the Assam Senior Madrassa Final Examination passed and also reside at a convenient place within the limits of the jurisdiction proposed and the other candidates possess only the qualification of the Assam Senior Madrassa Final Examination passed, the former will be preferred than the later. It may so happen that two or more candidates may possess the qualifications equally, that is to say, possess Assam Senior Madrassa Final Examination passed and also reside within the limits of jurisdiction proposed, then the Committee shall consider the other qualifications requisite of which has been advertised, like knowledge of Arabic language, Muslim Laws of Marriage and Divorce etc.

In the instant case, the admitted position is that the writ Petitioner does not possess the first preferential qualification of the Assam Senior Madrassa Final Examination passed although he is stated to be the resident within the vicinity of the jurisdiction proposed, whereas the 4th Respondent possessed. This interpretation of Rule 4 become necessary because in the earlier Permanent Committee meeting held on 21.12.95, writ Petitioner Md. Matiur Rahman was selected as most suitable candidate in preference to 4th Respondent although he did not possess the first preferential qualification.

In this view, the contention of the Petitioner that the Respondent No. 1 has exceeded his jurisdiction by passing order dated 5.6.97 remanding the case to the Permanent Committee lacks substance and it is accordingly rejected.

With regard to the second contention that the impugned order dated 3rd Oct. ''97 has been passed without any decision or decision has been made in excess of jurisdiction and contrary to law and rules has also no substance.

Before I advert further on the point urged by the parties, I may at this stage point out that the judicial review is not an appeal from a decision, but the review of the manner in which the decision is made. It is trite. However, in the instant case, the contention of the Petitioner that the notification dated 3rd Oct ''97 has been passed without a "decision" is belied by the record. Considering the allegation that the notification dated 3.10.97 has been issued without a decision, the relevant file No. REGN-11/96 was called for and produced. At page 33 of the note sheet the Govt. of Assam has taken a decision that Md. Abdul Quasim Khan, Respondent No. 4 is more qualified than the writ Petitioner Md. Matiur Rahman and hence Md. Abul Quasim Khan may be appointed as MMR & Kazi at Islampur. The file was noted on 15.9.97 an it bears Chief Ministers approval on 29.9.97 and it is pursuant to the aforesaid decision that the notification dated 3.10.97 has been issued. Therefore, the decision is not only reasonable but fair and for the ends of justice and made in public interest after application of mind and the same cannot be faulted. It was not urged before me that the power so exercised is tainted with malafide, arbitrary or in capricious exercise of the authority.

This apart, Section 3 of the Act empower the State Govt. to grant licence to any person in specified area and may revoke or suspend such licence. Further, Rule 6 of the rules also empower the Permanent Committee to select a candidate with the necessary qualifications for the approval of Government. A fascicule reading of Section 3 of the Act and Rule 6 of the rules would clearly posits that the jurisdiction of the State Government for giving approval and taking a decision a decision to appoint a candidate with necessary qualifications is not ousted. In fact, giving a licence as visualises u/s 3 of the Act and approval of the necessary qualifications of the selected candidates by the State Government as visualises under Rule 6 of the rules would clearly show that the final authority is the State Government with regard to the approval and granting of licence to MMR & Kazi. In this case, the decision rendered by the Government is reasonable, just, valid and cannot be faulted.

In the result, this writ petition is dismissed as meritless. Parties are asked to bear their own costs. Interim order, if any, stands vacated.