Safiqul Islam Choudhury (Md.) vs State of Assam and Others

D.N. Chowdhury, J.—The legitimacy of the selection made by the Permanent Committee in selecting the Respondent No. 5 Mr. Hafiz Rasheed Ahmed, to the post of Muslim Marriage Registrar and Kazi at South Karimganj Development Block in the district of Karimganj vide its resolution No. 2 dated 18.8.97, is the subject matter of this Civil Rule.

The District Registrar, Karimganj, by an advertisement invited applications for the post of Muslim Marriage Registrar and Kazi at South Karimganj Development Block in the district of Karimganj from the local Muslim candidates in prescribed form by its Notification dated 6.3.97. As per the advertisement, for the aforesaid post those candidates will be given preference who have passed the Assam Senior Madrassa Final Examination. The candidates were advised to submit testimonies of good moral character and their acquaintance with Arabic language and Muslim law of Marriage and Divorce. The District Registrar, Karimganj, by a notice dated 8.4.97, directed the candidates to appear before the Selection Committee on 28.4.97 in the office chamber of the Addl. Deputy Commissioner and the District Registrar, Karimganj. Accordingly, interview was held by the Selection Committee constituted with the Sub-Registrar (Sadar) and the District Employment Officer of Karimganj under the Chairmanship of the District Registrar. From the communication dated 25th April, 1997, issued by the District Registrar to the Inspector General of Registration, Assam, annexed to the petition by the Petitioner and marked as Annexure-10, it is revealed that out of six Applicants, five candidates appeared before the Interview Board. The Selection Committee prepared a panel of four candidates on the basis of the marks obtained by them in the Interview and forwarded the same to the Inspector General of Registration, Assam, for favour of necessary action. The Petitioner has enclosed a typed copy of the statement of marks obtained by the candidates, which is annexed as Annexure-10(A) to the petition and sought to rely on the same as a result sheet, the full text of which is extracted below:

LIST OF CANDIDATES FOR THE POST OF MMR AND KAZI APPEARED BEFORE THE SELECTION COMMITTEE ON 28-4-97

Total Marks - 50 Interview - 40 Smartness - 10 Total - 50 (As per advertisement Vide No. M-5/Regn/95/dt. 6.3.97)

Name and Address of the candidates Chairman Asstt. Re- gisttar Sub- Registrar Emplt. Officer Total Actual marks obtained

Hafiz Rasheed Ahmed S/O Md. Shamsul Hoque and P.O. Kanishail Dist. Karimganj 32 20 20 72 24 2nd

Md. Abdul Quayyam, S/0 Abdul Bazor, Vill and P.O. Kanishail 25 25 17 67 22.3 4th

Md. Abdul Quayyam, S/O Abdul Rezaque, Vill and P.O. Kanishail Absent Absent Absent Absent __ __

Md. Asadur Rahman, S/O Abdus Subhan, Vill and P.O. Kanishail Dist. Karimganj 30 21 15 66 22 __

Md. Safiqul Islam Choudhury, S/O Mastufa Hussain Choudhury, Vill and P.O. Mahakal, Dist. Karimganj 32 20 23 75 25 1st

Md. Mastuf Ahmed S/O L. TabarakAli, Vill West Kanishail, P.O. Kanishail, Dist. Karimganj 28 22 18 68 22.5 3rd

Signed by three members

The implication of the list is not easy to fathom. However, relying on the last column showing "Actual marks obtained", for the purpose of determination of the case, I will assume the statement of the Petitioner that he obtained 25 marks in total and the Respondent No. 5 obtained 24 marks in total, as per the list. The recommendation of the Selection Committee which was forwarded to the Inspector General of Registration, Assam, was placed before the Permanent Committee on 18.8.97. The Permanent Committee consisting of Mr. M.Y. Tamizi, Sr. Professor of Arabic, Cotton College, Guwahati, Md. Abdul Mazid, Advocate, Ex-Principal, Mangaldoi College, Md. Salehuddin Ahmed, Lecturer and Head of the Department of Arabic, B.N. College, Dhubri, Prof. Matiur Rahman; Head of the Deptt. of Arabic, Karimganj College and Md. Abdul Mannan Choudhury, Principal, Law College, Barpeta, under the chairmanship of Shri K.N. Sarma Baruah, ACS, Inspector General of Registration, Assam, deliberated on the matter and passed the following resolution:

RESOLUTION No. 2: Selection of MMR and Kazi at South Karimganj

A panel of 5 (five) candidates was received from the District Registrar, Karimganj vide letter No. M-6/REGN./95/514. dt. 28.4.97. Out of 5 candidates Md. Hafiz Rasheed Ahmed, S/O Samsul Hoque of P.O. and Vill. Kanishail, Dist. Karimganj was found more suitable by the Permanent Committee in all respects and selected him as MMR and Kazi at Sought Karimganj block. Md. Hafiz Rasheed Ahmed was selected because he possess requisite qualification of Sr. Madrassa passed and he also possess B.A. degree having Honours in "Arabics" moreover he is a local candidate. The Permanent Committee requested Inspector General of Registration to move Govt. accordingly.

Hence this writ petition.

Mr. A.S. Choudhuiy, learned Counsel on behalf of the Petitioner, assailed the impugned resolution as being arbitrary and discriminatory. Mr. Choudhury submitted that the Petitioner, who was adjudged at No. 1 by the Selection Committee at the District level, was eliminated by the Permanent Committee on extraneous considerations. The learned Counsel for the Petitioner pointed out that the District level Committee on assessment of the respective merits of the candidates, adjudged the Petitioner at No. 1 and found him to the more meritorious than Respondent No. 5. The Permanent Committee in the instant case fell into a serious error and excluded the Petitioner without assigning any reason. Mr. Choudhury, accordingly, submitted that failure to give reasons amounts to failure of principles of natural justice and on that count alone, the impugned order is liable to be set aside.

Mr. N. Dhar, learned Counsel appearing on behalf of Respondent No. 5, on the other hand supported the decision of the Permanent Committee which was passed after fresh assessment of the respective merits of the candidates. Mr. Dhar Airther submitted that, admittedly, Respondent No. 5 is superior in merit to the Petitioner since the Respondent No. 5, apart from other qualifications, did possess the B.A. degree with Honours in Arabic over and he being a local candidate.

Mr. H.N. Sarma, learned Addl. Sr. Govt. Advocate, Assam appearing on behalf of Respondents Nos. 1, 3 and 4, submitted that the Permanent Committee acted within its jurisdiction in giving its recommendation. According to Mr. Sarma, the Muslim Marriages and Divorces Registration Act, 1935 and the Rules framed thereunder envisage the power on the Permanent Committee to disapprove the nomination of the District Registrar, authorising the Permanent Committee to select another candidate which will, however, be subject to approval by the State Government. In fine, Mr. H.N. Sarma, the learned Govt. Advocate, submitted that the present application under Article 226 of the Constitution is premature in the absence of formal approval of the Government.

The Assam Moslem Marriages and Divorces Registration Act, 1935 (hereinafter referred to as the Act) was enacted to provide for the voluntary registration of Moslem marriages and divorces. The Act provides for appointment of "Moslem Registrar" to perform the duties and functions of his office under the superintendence and control of the District Registrar in whose district such Moslem Registrar is situated. The Inspector General of Registration is to exercise general superintendence over the offices of Moslem Registrars and have the power to frame Regulations from time to time consistent with the rules made under the Act for the guidance of the Moslem Registrar and his office generally. The Moslem Registrar is to be granted licence by the State Government authorising him to register Muslim marriages and divorces, effective within certain specified limits, on application being made for such registration. u/s 17 of the Act, a set of jules is made, known as the Assam Moslem Marriages and Divorces Registration Rules, 1935 (hereinafter referred to as the Rules). Under Rule 2 of the Rules, the District Registrar is to nominate a sufficient number of persons possessing qualifications, specified under Rule 3, to be licensed as Moslem Registrar u/s 3 of the Act. The nominations of the District Registrar are required to be submitted to the Inspector General of Registration to be placed before the Permanent Committee accompanied by the original application of the candidates in the prescribed form together with the Certificate of good moral character and other certificate that he has passed the Assam Sr. Madrassa Final Examination or a Certificate that he possesses sufficient acquaintance with the Arabic language and the law of Muslim Marriages and Divorces signed by three Muslim Gentlemen of respectable positions. Rule 6 of the Rules envisages that:

Should the nomination of the District Registrar be disapproved by the Permanent Committee, the District Registrar may be requested to submit a fresh nomination, or the committee may select another candidate with the necessary qualifications for the approval of the Government.

(emphasis supplied)

On reading of the provisions of the Act and the Rules, it thus emerges that the District Registrar under the Act is authorised to nominate persons possessing qualifications specified in the Act and the Rules, to be licensed as Moslem Registrar u/s 3 of the Act. The said nominations of the District Registrar requires the approval of the Permanent Committee. The Permanent Committee may, however, approve the nominations or disapprove the same. Under the scheme of the Act and the rules, the Permanent Committee is not bound to accept the nominations of the District Registrar. In a given case, the Permanent Committee is given the choice to request the District Registrar to submit fresh nominations, if it does not accept the nominations of the District Registrar. The Committee instead of requesting the District Registrar to submit fresh nominations may, on its own, is enable to select another candidate possessing necessary qualifications for the approval of the Government. The Permanent Committee is a superior body than that of the District Registrar, it has also been conferred with the power of primary authority to select a candidate possessing necessary qualifications.

In the instant case the Permanent Committee in its meeting dated 18.8.97, fully deliberated upon the matter and after careful consideration of the entire matter, found Respondent No. 5 to be a suitable candidate for the post of Muslim Marriage Registrar and Kazi and selected him accordingly. The Permanent Committee on evaluation of the respective merits, preferred the Respondent No. 5 since in addition to the required qualifications, he also possessed "B.A. degree having Honours in ''Arabics''" and also for he being a local candidate. The considerations that were taken by the Permanent Committee, are the reasons for preferring the Respondent No. 5 which cannot be said to be irrelevant or extraneous. The Petitioner at any stage did not dispute the correctness of the aforesaid factual statements as reflected in the Resolution of the Permanent Conmittee. The weightage that was given in selecting the Respondent No. 5 to higher qualifications and local residency, under the circumstances, cannot be said to be unlawful. The impugned Resolution is a speaking one, therefore, the question of infraction of principles of Natural Justice does not arise. The Scheme of the Statute does not conceive giving hearing by the Permanent Committee of the concerned candidates before reaching at its decision. The judicial review under Article 226 of the Constitution is not an appeal in disguise and on the given circumstances, the merits of the decision can not be faulted. That apart, the matter is yet to be finally approved by the Government. The Permanent Committee only requested the Inspector General of Registration, Assam, to apprise the Government its decision and for necessary action as per law.

Fore the foregoing reasons, I do not find any merit in this writ petition and accordingly, this writ petition stands dismissed.

The interim order of this Court dated 18.9.97, stands dissolved. No costs.