THE STATE OF MAHARASHTRA versus SHAIKH MAHEMUD & ANR. on 6 April 2022

ORDER

1. Leave granted.

2. The appointment of the first respondent herein as a Member ofthe Maharashtra State Board of Waqfs, by a notification dated13.09.2019, was cancelled by a subsequent notification dated 04.03.2022,but the said cancellation was set aside by the High Court of Judicatureat Bombay as arbitrary, in a writ petition filed by the first respondent,forcing the State of Maharashtra to come up with the above appeal.

3. We have heard Mr. Sachin Patil, learned standing counsel forthe State of Maharashtra, Mr. Nishant R. Katneshwarkar, learned counselappearing for the first respondent and Mr. Siddharth Bhatnagar, learnedsenior counsel appearing for the second respondent who has beenappointed in the place of the first respondent.

4. The notification dated 13.09.2019 issued by the MinoritiesDevelopment Department of the State of Maharashtra appointing thefirst respondent as a Member of the Maharashtra State Board of Waqfsreads as follows:

“…In exercise of the powers conferred by sub-section (9) andclause (c) sub-section (1) of section 14 of the Waqf Act, 1995(43 of 1995), and in supersession of all earlier notificationsissued in this behalf in so far as they related to the nominationof a person amongst Muslims, who has professionalexperience in town planning or business management, socialwork, finance or revenue, agriculture and developmentactivities, the Government of Maharashtra hereby appointsfrom the category of “who has professional experience intown planning or business management, social work, financeor revenue, agriculture and development activities”, ShriMahemud Mahebub Shaikh as a Member on the MaharashtraState Boards of Waqfs, having its headquarters at Panchakki,Aurangabad for a period of five years from the date ofpublication of this notification or until further orders,whichever is earlier…”

5. The relevant part of the notification dated 4.03.2020 issued bythe State, cancelling the appointment of the first respondent reads asfollows:

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A“…And whereas, the Government of Maharashtra considersit expedient to cancel the appointment of Shri MahemudMahebud Shaikh as a Member of the said Board;

Now, therefore in exercise of the powers conferredby sub-section (9) read with clause (c) of sub-section (1) ofBsection 14 of the Waqf Act, 1995 (43 of 1995) and of allother powers enabling it in that behalf, the Government ofMaharashtra hereby cancels the appointment of ShriMahemud Mahebud Shaikh of the said Board…”

6. The High Court, by the order impugned in this appeal, set asideCthe cancellation of appointment on the ground inter alia, (i) that Section15 of the Waqf Act, 1995 prescribes a fixed tenure of five years, whichcan be curtailed only if the member is disqualified in terms of Section 16or removed in terms of Section 20; (ii) that there is no place for thedoctrine of pleasure and such appointments cannot be cancelled at thewhims and fancies of the Government; (iii) that the reliance placedDupon the State Government upon Rule 15 of the Rules of Business insupport of their contention that the appointment of the respondent requiredthe approval of the Chief Minister, but as a matter of fact such approvalwas not obtained, cannot have any application to the case since theposition of the Member of the State Waqf Board cannot be equated toEthat of a statutory tribunal; and (iv) that the cancellation of appointmentof the first respondent was arbitrary, warranting the interference of theHigh Court.

7. At the outset we should point out that the High Court was rightin holding that the post of Member of the Waqf Board cannot be equatedto that of a Member of the Tribunal and that Item No.23 under Rule 15Fof the Rules of Business of the Maharashtra Government issued in termsof Article 166 of the Constitution has no application to the case on hand.

8. But the findings of the High Court (i) that the term of office ofa Member of the Board stipulated under Section 15 of the Waqf ActGcannot be curtailed except in the case of disqualification under Section16 or removal under Section 20; and (ii) that the cancellation ofappointment was arbitrary, are incapable of being upheld. The reasonsare not difficult to be deciphered. While Section 13 of the Act deals withthe establishment of a Board of Waqfs (now the nomenclature ischanged as Board of ‘Auqaf’ under Amendment Act 27 of 2013),H

Section 14 deals with the composition of the Board, election of membersand the manner of election of the Chairperson of the Board. Broadly,the appointment of the Members of the Board shall be by two differentmethods namely, (i) election from each of the electoral colleges asstipulated in clause (b) of sub-section (1) of Section 14; and (ii)nominations by the State Government in terms of clauses (c), (d) and (e)of sub-section (1) of Section 14.

9. It is relevant to point out that the appointment of the firstrespondent was by the method of nomination by the State Governmentin terms of clause (c) of sub-section (1) of Section 14. The appointmentunder both categories (election or nomination) should be by a notificationissued by the State Government and published in the official Gazette.This is by virtue of sub-section (9) of Section 14. Sub-section (9) ofSection 14 reads as follows:- “14. Composition of Board.—

(9) The members of the Board shall be appointed by the StateGovernment by notification in the Official Gazette.”

10. It is true that Section 15 prescribes a term of office of fiveyears for the members of the Board, from the date of the notificationissued under Section 14(9). This Section 15 reads as follows:- “15. Term of office. —The members of the Board shall holdoffice for a term of five years from the date of notificationreferred to in sub-section 9 of section 14.”

11. Though Section 14(9) is common to the appointment underboth categories and though Section 15 speaks about the term of officeof members appointed by a notification under Section 14(9), nominationalways stands on a slightly different footing than election. Perhaps, asper the scheme of the Act, it may not be possible for the State Governmentto breach the process of election from each of the electoral collegesunder clause (b) of sub-section (1) of Section 14, by curtailing the termof office of such elected members. But the same logic cannot be extendedto nominated members. In other words, it may not be possible to holdthat there is no elbow space for the State Government in the cases ofnomination covered by clauses (c), (d) or (e).

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A12. It must be noted that under clause (e) of sub-section (1) ofSection 14, an officer of the State Government not below the rank ofJoint Secretary to Government may be nominated to the Board. If Section15 is construed in the manner in which the High Court has construed,such a nominated officer of the State Government may have to be allowedto continue, even if he reaches superannuation before completing fiveByears of tenure. Therefore, it is not possible to accept the view of theHigh Court that the term of office prescribed under Section 15 cannotbe curtailed. This is so at least in respect of a nominated member.

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13. For holding that the cancellation of appointment of the firstrespondent was arbitrary, the High Court did not really have any material.CThe only reason why the High court held it to be arbitrary is that theorder of cancellation of appointment did not contain any reason and thatthe cancellation went against Section 15. For holding the action of theExecutive to be arbitrary, there must be a factual basis. It did not exist inthis case.D14. It was contended by the learned counsel for the first respondentthat the notification of cancellation of appointment was issued in exerciseof the powers conferred by sub-section (9) read with clause (c) of sub-section (1) of Section 14. Since these provisions deals only withappointment and not with removal, it was contended by the learned counselfor the first respondent that the notification of cancellation was not inEaccordance with law.

15. But the above contention loses sight of the fact that the powerto appoint would include the power of cancellation of appointment.Therefore, the said contention is liable to be rejected.

16. It was next contended by the learned counsel for the firstFrespondent that the procedure prescribed under Section 20 of the Actfor the removal of the respondent was not followed. But this contentionis unsustainable, in view of the fact that the respondent was not removedfrom the office of membership of the Waqf Board. His appointmentwas cancelled by the notification impugned in the writ petition. Therefore,GSection 20 has no application to the case.

17. In view of the above, we find that the order of the High Courtis unsustainable. Therefore, the appeal is allowed and the impugned orderof the High Court is set aside. The writ petition filed by the respondentbefore the High Court shall stand dismissed.HNidhi JainAppeal allowed.