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TMI Blog2017 (5) TMI 1831X X X X Extracts X X X X X X X X Extracts X X X X ..... itions. (i) The Chief Executive Officer of the respondent No. 2/Board has to be appointed from the panel of names recommended by the Board as required U/Sec. 23 of the Wakf Act 1995 (for short hereinafter referred as "Act"). Pursuant thereto the board had recommended three names on 24.08.2016. The said recommendation is still pending and no decision has been taken on the said recommendation. (ii) Without taking any decision on the recommendations, the respondent No. 1 directed the respondent No. 2 to hold the meeting of the board and appoint the respondent No. 3 by letter dated 27.10.2016. The respondent held meeting on 04.11.2016 and passed the resolution that the board may consider on any other recommendation made by the respondent No. 1, only after the respondent No. 1 takes decision in respect of recommendation made by the respondent No. 2. Without considering the recommendations of the respondent No. 2, the respondent No. 1 appointed the respondent No. 3 as Chief Executive Officer of the respondent No. 2 on 03.01.2017. (iii) While appointing the respondent No. 3 as Chief Executive Officer of the respondent No. 2, the respondent No. 1 did not make any consultation with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent No. 2/Board. Thereafter only the respondent No. 3 is appointed. As far as name of Razakhan is concerned, the Urban Development Department vide its letter dated 01.07.2016 informed that the decision has been taken to initiate departmental enquiry against him. The question of appointment of full time Chief Executive Officer was raised in Writ Petition No. 1745 of 2016 and Writ Petition No. 125 of 2016. In the aforesaid circumstances, the respondent No. 1 was stuck in following situation. (1) The Chairman of the Maharashtra State Board of Wakf has suggested three names vide his letter dated 24/08/2016. This was not a recommendation as contemplated under the provisions of Sec. 23(1) of the Waqf Act, 1995. (2) Out of the three names recommended, Smt. Nasimbano Nazir Patel was not fulfilling criteria and therefore could not be selected. (3) A departmental enquiry was proposed under Rule No. 8 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 against Mr. Raza Khan, Deputy Director Town Planning, an officer, whose integrity is under doubt and against whom a departmental enquiry under serious charges is proposed, cannot be held fit to be appointed to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 for a period of three years from the date of publication of notification of appointment or until further orders whichever is earlier. The consultation has been properly done. To buttress his submissions that second part of Sec. 23 operate independently, the learned Addl. G. P. relies on the judgment of the Apex Court in a case of Vidyacharan Shukla Vs. Khubchand Baghel reported in 1964 AIR (SC) 1099. So also to show that, process of consultation has been followed, the learned Govt. Pleader relies on the judgment dated 06.10.1993 of the Apex Court in a case of Supreme Court Advocates-on-Record Association and another Vs. Union of India in Writ Petition (Civil) No. 1303 of 1987. 06. Mr. R. S. Deshmukh, the learned counsel for the respondent No. 3 submits that, the word "and" is normally conjunctive and the word or is normally disjunctive. However, wherein use of such word and/or produces any unintelligible or absurd result, the Court can read word "and" as "or" and vice versa. The learned counsel relies on the judgment of the Apex Court in a case of Spentex Industries Limited Vs. Commissioner of Central Excise reported in (2016) 1 SCC 780 and another judgment of the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Section 23 of the Act shall be made by the consultation with the Board : (a) By transfer on deputation of a person holding a post not below the rank of Deputy Secretary to Government in ant department of Mantralaya; or Additional Collector at District level; or (b) By Reappointment of a suitable retired Government Office, who has held a post not below the rank of Deputy Secretary to Government at the time of his retirement : Provided that, a person, who has attained the age of sixty years, shall not be eligible for appointment under this clause. (2) The appointment under Subrule( 1) shall be for a period not exceeding three years at a time, which may, on the recommendation of the Board, be further extended so, however, that the total period of appointment does not exceed five years: Provided that, Government may recall the Officer who is appointed on deputation at any after consultation with the Board. (3)(a) The person appointed under clause (a) of subrule (1) shall be entitled to draw pay in his own pay-scale alongwith such other allowances as may be fixed by the State Government from time to time. (b) The person appointed under clause (b) of subrule (1) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the rank of the Deputy Secretary and above and in a case of non availability of the Muslim officer of that rank a Muslim officer of equivalent rank. Such officers will have to be appointed on deputation. As such, the expression may be appointed on deputation appearing in Sec. 23 will apply to the persons who are not below the rank of Deputy Secretary and even to a person of equivalent rank in case of non availability of a Muslim officer of the rank of Deputy Secretary and above. In both the contingencies the Chief Executive Officer will have to be appointed on deputation and that is why the Legislature has used the word "and" between both the contingencies. 13. In Sec. 23 of the Wakf Act, two contingencies are spelt out (i) the Chief Executive Officer of the Board shall be a Muslim and shall be appointed by the State Government by notification in official Gazette from the panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government and (ii) in case of non availability of Muslim Officer of that rank, a Muslim Officer of equivalent rank may be appointed on deputation. Both these contingencies are conjoined by word "an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement the directions given by the Board. It also has to exercise the function delegated to him by the board. The Board should be in a position to repose faith in Chief Executive Officer. The aspect of consultation has been removed by amendment to Sec. 23 of the Act and the powers of the State Government in appointing full time Chief Executive Officer are limited from the panel of two names suggested by the board. The said panel of two names suggested may be the persons not below the rank of Deputy Secretary or in case of non availability of persons of the rank of Deputy Secretary, a person of equivalent rank. Whether the person appointed is not below the rank of Deputy Secretary or of a equivalent rank, he will have to be appointed on deputation, because the Chief Executive Officer to be appointed as per Rule 7 cannot be more than 60 years of age at the time of appointment, his tenure would be three years or at the most five years. In the light of the above discussion, it will have to be held that, the word "and" between both the contingencies specified in Sec. 23 of the Act, will have to be read as conjunctive. 17. Though Rule 7 lays down that appointment of Chief Executive Off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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