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Judgment
The petitioner has filed the present petition challenging the order dated 14.12.2015 passed by respondent/Sate thereby appointing respondent no.5 on the post of Chief Executive Officer, M.P. State Waqf Board, Bhopal.
The Petitioner is sitting M.L.A. from the Indian National Congress Party in the MP Legislative Assembly and is also duly appointed the Member of the MP State Waqf
Board. Earlier one Shri Dawood Ahmed Khan was appointed as Chief Executive Officer, M.P. State Waqf Board, Bhopal vide order dated 22.07.2013 by the State Government. This order was challenged by one Shri M.A. Hanfi in W.P.
No.18071/2013 (PIL). The said writ petition was disposed of vide order dated 18.10.2013 with a direction to the respondents to decide the representation of the petitioner.
Pursuant to this order, Shri Dawood Ahmed Khan was removed from the post of Chief Executive Officer, M.P. State Waqf Board, Bhopal vide order dated 11.12.2013 and one Shri M.C. Kishore, Deputy Director Backward Class & Minority Welfare Department was given additional charge of that post. Thereafter respondent no.6 was transferred by the General Administration Department to the Minority Welfare Department and was given additional charge of the post of CEO, MP State Waqf Board by order dated 01.02.2014, then respondent no.6 has been additional charge of the Chief Executive Officer of the MP State Waqf Board, Bhopal. On 29.12.2014 a meeting of the Waqf Board was convened in which it was resolved that the present CEO has performed well till now, the State Government be requested to sent panel of Officers to be appointed as a full time CEO. The same request has been made by the Chairman of the MP State Waqf Board also. Respondent no.6 vide orders dated 27.08.2014 and 06.10.2014 have made a request to relieve him from the additional charge of the CEO, Waqf Board and to appoint full time CEO. The petitioner has also submitted representation to the Chief Minister as well as the Minister of the Minority Welfare Department vide dated 02.11.2015 to appoint a full time CEO in the Waqf Board. In the meanwhile, respondent no.5 was appointed on the post of CEO in the Waqf Board vide order dated 22.12.2015. The petitioner has submitted his objection against the appointment of respondent no.5 on 22.12.2015, however, the said objection has not yet been decided.
Learned counsel for the petitioner submits that the appointment of respondent no.5 on the post of CEO is contrary to the Section 23 of the Waqf Act. He submits that as per the Section 23 eligibility criteria for a person to be appointed as CEO is that;
He shall be a Muslim;
he shall be appointed by the State Government;
from a Panel of two names suggested by the Board;
and he shall not be below the rank of Deputy Secretary to the State Government.
He further submits that respondent no.5 is not a person appointed from a panel of two persons suggested by the Waqf Board. He is an Assistant Engineer under the Urja Vikas Nigam and he is also not a person holding a post not below the rank of Deputy Secretary and, therefore, the appointment of respondent no.4 on the post of CEO, Waqf Board is contrary to the Section 23 of the Waqf Act and, therefore, deserves to be set aside.
Respondents no.1 to 3 have filed their reply and in their reply they have stated that the Section 23 of the Waqf Act provides that their shall be a full time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government by notification in the official gazette from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government and in case of non availability of a Muslim Officer of that rank a Muslim Officer of equivalent rank may be appointed on deputation. Hence the aforesaid provision i.e. Section 23 itself gives clear understanding that in case non availability of the person not below the rank of Deputy Secretary alternative mechanism as provided under Section 23 can be resorted with. It has further been submitted that the pay scale of Deputy Secretary in the State is Rs.15600-39100 with Grade Pay of Rs.7600/- and the person who has now been appointed on the post of Chief Executive Officer is also holding the same pay scale and in fact, respondent no.5 is working as an Additional Executive Engineer. That before appointing him on the post of CEO his entire service record has been taken into consideration. It has further been submitted that the General Administration Department has issued a circular dated 03.11.2015. In the said circular mentioning that the number of Muslim Officers of the Deputy Secretary rank are less and, therefore, other person which belongs to the Muslim Community and is having an equivalent post of Deputy Secretary can be appointed on the post of Chief Executive Officer, M.P. State Waqf Board, Bhopal.
Respondent no.5 has also filed reply and in the
reply respondent no.5 has submitted that General Administrative Department of the State Government has issued circular dated 03.11.2015 whereby it was noticed that the CEO Shri Nisar Ahmed had shown his unwillingness to work in the Waqf Board, therefore, regular full time CEO to be appointed and till then respondent no.6 will continue in the Board. Further in the same, it was found that in the State of M.P. the Muslim Officers of Deputy Secretary Rank are not much in number, therefore, in case of non availability, the services of the Muslim Officer of equivalent rank working in other Department can be taken on Deputation. Thus, the applications were invited from the interested Officers. Accordingly, the Backward Class and Minorities Welfare Department issued Circular/General order dated 23.11.2015 to all the Departments of the State of M.P. whereby the application and details of the interested Muslim Officers of equivalent rank to that of Deputy Secretary were invited. Respondent No.5 shown his interest when asked from the Parent Department. The Parent Department of respondent no.5 have given his services on deputation to the State Government Minorities Department for appointing him as CEO full time in the Waqf Board. The pay scale of the post of Deputy Secretary is similar to which respondent no.5 is getting.
Respondent no.6 has also filed return and in the
return respondent no.6 stated that he is holding the work post of CEO of the Waqf Board and also having an additional charge of three other posts and, therefore, he made a request to appoint full time CEO in the Waqf Board.
The petitioner has filed the rejoinder and in the
rejoinder he has submitted that Section 23 of the Waqf Act permits the appointment of a Muslim Officer of equivalent rank in case non availability of a Muslim Officer of the rank of Deputy Secretary. It is submitted that Annexure R-5-1 does not say that Muslim Officer of the rank of Deputy Secretary is not available; instead it says that there is shortage/scarcity of Muslim Officer of the rank of Deputy Secretary shortage/scarcity is not synonym of non availability. Even otherwise, in case of appointment of another person to the post of CEO of the Board also, the condition of preparation of panel of two names to be suggested by the Board cannot be done away with. In the present case, this mandatory provision was not followed.
The petitioner has also given names of six officers who are of the rank of Deputy Secretary and are available in different Government Departments. He further submits that respondent no.5 is not a Officer of Government as per Section 23 of the Waqf Act, merely, because respondent no.5 is drawing a salary equivalent to the Deputy Secretary would not bring him in the rank of the Deputy Secretary.
I have heard learned counsel for the parties and perused the record. The petitioner has filed the present petition challenging the order dated 14.12.2015 by which respondent no.5 was appointed on the post of Chief Executive Officer M.P. Waqf Board. The section 23 of the Waqf Act provides that the appointment of the Chief Executive Officer and his term of office and other conditions of service. The said section read as under:-
(1) There shall be a full-time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government and in case of non availability of a Muslim Officer of that rank, a Muslim Officer of equivalent rant may be appointed on deputation.
(2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed.
(3) The Chief Executive Officer shall be ex officio Secretary of the Board and shall be under the administrative control of the Board."
As per the said section, the eligibility criteria for a person to be appointed as CEO is that;
a. He shall be a Muslim;
b. he be appointed by the State Government;
c. from a panel of two names suggested by the Board;
d. and he shall not be below the rank of Deputy Secretary.
The Section 23 further provides that in case of non availability of Muslim Officer of that rank, a Muslim Officer of equivalent rank may be appointed on Deputation.
In pursuance of the said provision under the Act, respondent no.5 has been appointed as CEO of the Waqf Board.
Respondent no.5 is working on the post of Additional Executive Engineer in the Urja Vikas Nigam and vide impugned order he has been sent on Deputation on the post of CEO M.P. Waqf Board. Respondents have filed the documents along with their return showing that the salary of respondent no.5 is equivalent to that which is been paid to the Deputy Secretary and, therefore, both the post are equivalent. Respondents have further stated that as no Muslim Officer of the rank of Deputy Secretary is available and, therefore, respondent no.5 who is holding the equivalent post of Deputy Secretary has been appointed on the post of Chief Executive Officer, M.P. State Waqf Board, Bhopal. Thus, in light of the aforesaid, I do not find any reason to interfere into the said writ petition.
Accordingly, the petition is dismissed without any order as to costs.