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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 ..... m officer of that rank, a Muslim Officer of equivalent rank may be appointed on deputation. Sec. 23 as it exist after amendment does not require the State government to consult with the board while appointing a full time Chief Executive Officer. To read the provision in the manner that if a person not below the rank of deputy secretary to the State Government is not available, then the State Government may appoint any Muslim Officer of equivalent rank without getting two names from the board, would be doing violence to the language of the word and appearing between two parts of Sec. 23(1) of the Wakf Act. Whether the person to be appointed as a Chief Executive Officer is a person not below the rank of Deputy Secretary and in case of non availability of such a Muslim officer of that rank, a Muslim officer of equivalent rank is to be appointed, the names will have to be suggested by the board - 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 thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmendation 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 the respondent No. 2 as is required under Rule 7 of the Wakf Rules. The appointment of the respondent No. 3 is also bad on account of lack of consultation. As per Rule 7 of the Wakf Rules, consultation is mandatory. The learned senior advocate relies on the judgment of the Division Bench of this Court in a case of Sopanrao Onkarrao Sathe and another Vs. State of Maharashtra and others reported in 2011(1) Mh. L. J. 739 and also the judgment of the Apex Court in a case of Nirothilal Gupta and others Vs. Union of India and others reported in 1993 Supp. (1) SCC 731 . (iv) It is further contended by the learned senior advocate that, Sec. 23 of the Act gives powers to the State Government to appoint full time Chief Executive Officer, but the same has to be from the panel of two names suggested by the Board, who shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore 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 such an important and sensitive post. (4) In case of Qureshi Naimuddin, despite several attempts, much needed information regarding consent of the office to work on the said post, his application to that effect, confidential reports of last five years, service details and information regarding whether any departmental/judicial enquiry is proposed/pending against him, and a report regarding his integrity was not received from his parent department which was indicative of nonwilling of that department to spare the said officer. (Later on, the Rural Development Department, vide its letter dated 29/12/2016 which was received in the office of Respondent No. 1 on 04/01/2016, has informed that it is not possible for them to make available the services of Shri Qureshi Naimuddin Abdul Rashi, Project Director. 05. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally 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 a case of Maharishi Mahesh Yogi Vedic Vishwavidyalaya Vs. State of Madhya Pradesh and others reported in (2013) 15 SCC 677 . 7. We have considered the submissions canvassed by the learned counsel for respective parties. 8. The appointment of the respondent No. 3 as a Chief Executive Officer of the respondent No. 2/board by the respondent No. 1 is assailed basically on the count of non adherence to Sec. 23 of the Act. 9. Before we proceed to dilate on Sec. 23 of the Wakf Act, it would be necessary to reproduce provisions of Sec. 23 which existed prior to the amendment and as exists after amendment. The same would be necessary to understand the purport of Sec. 23 of the Act as it exists. THE WAQF ACT, 1995 1. .... 2. .... Sec. 23 Prior to amendment 23. Appointment of Chief Executive Officer and his term of office and other condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be entitled to draw such pay and allowances as mau be admissible to hi, under the relevant rules, made by the State Government. (4) The person appointed as the Chief Executive Officer shall possess adequate knowledge of Urdu language. 10. The Wakf (Amendment) Act 2013 has received the assent of the President on 20 th September, 2013 and published in the Gazette of India on 23rd September, 2013. 11. Sec. 23 as it existed prior to the amendment of the year 2013 empowered the State Government to appoint a Chief Executive Officer, who shall be a Muslim in consultation with the board. However, after the amendment to Sec. 23 in the Wakf Act 1995 in the year 2013 rigor of consultation of the board has been done away with. However, the State Government is empowered to appoint Chief Executive Officer of the Board from panel of two names suggested by the board and who shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and . 14. The word and is normally conjunctive and word or is normally disjunctive. The word and is required to be given its literal meaning. It is only if the use of word and conjunctively produces unintelligible or absurd result, then the Court has the power to read the word 'or' as 'and' and vice versa to give effect to the intention of the legislature. The interpretation has to depend on the text and the context. The words normally are be read in their ordinary, natural and grammatical meaning. The word 'or' as 'and' and 'and' as 'or' in a statute are read unless the same is obliged to do so. Reading of the word 'or' as 'and' and 'and' as 'or' is not to be resorted to unless some other part of the same statute or the clear intention of it requires to be done. 15. If we read the provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 Officer is by the State in consultation with the board the same was in consonance with Sec. 23 of the Act as it stood prior to amendment. On amendment to Sec. 23 of the Act, the aspect of consultation does not find place in Sec. 23 of the Act, instead the State Government is required to appoint full time Chief Executive Officer only from the names suggested by the board. Rules are required to be subservient to the Act and the Rules have to supplement the statute and not supplant it. It appears that, after amendment made to Sec. 23 of the Act, the said rule has not been effectively amended to bring it in tune with Sec. 23 to the extent of non requirement of consultation. 18. In the present case, the name of the respondent No. 3 was not suggested by the board. If the names suggested by the board were of the persons not competent to be appointed, then the State could have called for other names fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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