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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.