- (1.) By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby learned Single Judge has allowed the writ petition preferred by the original petitioners-respondents no.3 to 5 herein. The appellant was respondent No.3 in the original writ petition and challenged the judgment and order of the learned Single Judge whereas, respondents No. 4 and 5, namely-Nida Khan and Sayed Afroz Zaidi (proforma respondents No. 6 and 7 herein) have accepted the order of the learned Single Judge and have not challenged the same.
(2.) The facts of the case are that appellant was in government service and working as PTI till he took voluntary retirement on 4.2.2016 and thereafter he was nominated as member of the Wakf Board on 9.3.2016 i.e. within a short period of one month after voluntary retirement. The respondents No. 3 to 5 (original petitioners) challenged his nomination as a member of Rajasthan Wakf Board in exercise of powers given under Section 14 (1) (c) readwith section 14 (1) (d) of the Wakf Act, 1995 (in short Act of 1995).
(3.) Counsel for the appellant has taken us to the provisions of Wakf Act and more particularly Section 14 (1)(c) of the Act of 1995 which reads as under:- section 14(1) in The Wakf Act, 1995 (1) The Board for a State and the Union territory of Delhi shall consist of- (a)...... (b)...... (i)... (ii)... (iii)... (iv) .. (c) one and more than two members to be nominated by the State Government representing eminent Muslim organisations 3. 1. He contended that in view of the aforesaid provisions, the only requirement is that he must be representing eminent Muslim organization whereas the appellant was Chairman of the 'Muslim Mahasabha Sansthan, Tonk' which is carrying on the activities for the betterment of the Muslim community having its objects as under:- ...[VERNACULAR TEXT OMITTED]... 3. 2. He contended that the appellant was rendering his social services for the betterment of Muslims and that organization ought to be considered as eminent as its member are 20,000 in number. It appears that the dispute which is subject matter of the controversy is notification dated 9.3.2016 which came for initiation of proceedings against the removal of illegal encroachment made in the Wakf property and which has resulted into the present petition after one and a half year therefore, he contended that the learned Single Judge has committed an error in entertaining the writ petition after one and a half year where appellant has already been nominated as a member of Wakf Board. 3. 3. Counsel for the appellant has taken us to the para no.8 of the reply filed by the State Government which reads as under:- 8. That the contents of para no.8 of the writ petition are admitted in the manner stated by the petitioners and hence, the same is denied. It is submitted that the State Government, has after going through the impeccable credential of the respondent no.3 to 5 found it fit to nominate respondent no.3 to 5 as Chairman and member of the Wakf Board. It is submitted that notification for nomination of the respondent no.3 has been issued following the due procedure prescribed by law. It is well provided that the member shall be appointed that the member shall be appointed by the Government by notification in the official gazette. The respondent no.3 to 5 are eminent and respected persons and has represented the eminent Muslim organization which is clear from his bio-dates. Thus, having regard to the provisions of section 14(c)(d) of the respondent no.3 has rightly been nominated as member of the Board. The State Government after objectively considering the matter, has nominated respondent no.3 to 5 as chairman and members of the Wakf Board. The petitioners are no justified in questioning the nomination on hypothetical basis. The nomination has been made on the basis of material available with the State Government. 3.4. He contended that the State Government has justified their appointment. Counsel for the appellant has also contended that the appellant has done social work and is closely associated with the welfare of minority community and in view of the decision of Himachal Pradesh High Court in Ali Mohammed v. State of H.P. and ors., decided on 16.3.2016 wherein it has been held as under:- 7. It would be thus clear that public interest can only be entertained at the instance of a bonafide litigant. It cannot be used by unscrupulous litigants to disguise personal or individual grievance as public interest litigation. 8. That apart, this Court cannot be oblivious to the fact that it is dealing with a Waqf, as defined in Section 3 (r) of the Waqf Act, 1995, as amended vide the Waqf (Amendment) Act, 2013 (27 of 2013) which "means the permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes- "(i) a waqf by user but such waqf shall cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkan or by any other name entered in a revenue record; (iii) "grants", including mashrat-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognized by Muslim law, and "waqf" means any person making such dedication." It would be evident that the waqf means the permanent dedication of any person of any movable or immoveable property for any purpose recognized by the Muslim law as pious, religious or charitable and therefore, the scope of public interest litigation in matters of such institutions is extremely limited. This dedication and institution is governed by a particular legislation, which provides for a proper mechanism for its management and it is proper for this Court to entertain litigation, much less, public interest litigation qua the same. 11. Adverting to the facts, it would be noticed that the entire thrust of the petitioner is that the constitution of the Board is as per the provisions of Section 14(1) of the Act and electoral college has been constituted by the State and therefore, it should be directed to constitute the same in conformity with Section 14 of the Act and also include one person from the Shia community. 14. It is evident from the perusal of the above notification that it was reasonably practicable for the State Government to constitute an electoral college from any of the categories mentioned in sub clauses (i) to (iii) of clause (b) of sub section (1) of Section 14 for want of availability of eligible members and it, therefore, exercised powers under sub-section (1) and (3) of Section 14 of the Act and nominated the aforesaid members from the Muslim community as members of the Board with immediate effect. Nowhere in the entire petition has the petitioner disputed this position or even made mention about the availability of any member who may fall within sub clauses (i) to (iii) of clause (b) of sub-section (1) of Section 14 of the Act. 15. That apart, we cannot even find any fault with the action of the respondents in falling back and invoking its authority under sub-section (3) of Section 14 of the Act, which provision by virtue of its commencing with non-obstante clause has overriding effect. What is provided therein is only that the State Government has to record its satisfaction in writing that it is reasonably practicable to constitute an electoral college for any of the categories mentioned in clauses (i) to (iii) of clause (b) of Sub-section (1) of Section 14 of the Act and nominate such persons as members of the Board as it deems fit. It is evident from the notification (supra) that such satisfaction has been duly recorded and this fact has even been disputed by the petitioner. 16. In view of the above, we have no hesitation to conclude that the Waqf Board has been constituted strictly in terms of the Act and the present petition appears to have been filed under ploy on considerations that are extraneous to public interest. The petitioner has approached this Court with clean hands, clean heart and clean objectives. 19. There is no genuine public interest involved in this petition and since the petitioner has abused the process of this Court, he in ordinary circumstances would have been liable for imposition of heavy costs. However, taking into consideration the fact that the notice of this petition has been issued to the opposite party, we refrain from doing so. But at the same time, the petitioner is warned to indulge in such misadventures in future. The petition is disposed of in the aforesaid terms, so also the pending application(s), if any. 3.5. He contended that writ of quo warranto should be entertained and in support of the same he has relied on following judgments:- (i) Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Association and Ors. (28.08.2006 SC) 52. At any event implicit in the finding of the Division Bench that the appointing authority has no right to appeal in quo warranto proceedings is that the Court cannot probe the mind of the appointing authority in a motion for quo warranto. The High Court erred in probing the mind of the government and acted contrary to its own finding on the role of appointing authority in quo warranto proceedings. The reasons felt out by the learned Judges of the Division Bench are sustainable in law and the impugned judgment is liable to be interfered with in these appeals. The learned Judges are right in quashing the appointment of the appellant as Managing Director on the misconception that he has been re-appointed to the said office, whereas it was a fresh appointment under the provisions of the Act and in accordance with the prescribed qualification and eligibility under the Act. Further the appointee holds the office during the pleasure of the Government as provided under Section 6(1) of the Act. The learned Judges are correct in holding that the Government is affected by allowing the writ of quo warranto against the appointee and observed that the Government ought have filed the appeal. It is unfortunate that the learned Judges have observed that the Government has filed the appeal at the instance of the appointee. The learned Judges, in our opinion, failed to appreciate that it is the duty of the Government to justify the appointment as such there is no wrong in filing the writ appeal. 53. In the result, we hold: (a) that the appellant was disqualified for appointment as Managing Director w.e.f. 1.2.2004. (b) There is no bar for appointment to the post in question on contract basis. The Government has absolute right to appoint persons on contract basis. (c) Writ of quo warranto does lie if the alleged violation is of a statutory provision. (d) There is no violation of Section 4(2) of the Act and Rule 3 of the Rules because the appellant had experience in administration and capacity in commercial matters before he was appointed as Managing Director on contract basis by the Government. (e) The Government has no doubt power to make contractual appointment until further orders. The power included the power to make appointment on substantive basis temporary, officiating basis, ad hoc basis, daily wages or contractual basis. (f) Writ filed by respondents 1 and 2 is motivated. (g) The petitioners in the writ petition, respondent No. 1 herein which is an unregistered Association under the Trade Unions Act cannot maintain the writ petition. (h) The findings of legal mala fides is unsustainable and has no basis. The finding of legal mala fides suffers from other infirmities as far as placing reliance on the complaints against the appellant without adverting to the orders of the Lokyukta detail examination, the appellant is unequivocal terms in both the cases. 54. For the foregoing reasons, the appeals are allowed and the order impugned in this appeal passed by the Division Bench of the High Court in W.A. No. 86/2006 affirming the judgment of the learned single Judge is set aside. (ii) Arun Kumar Agarwal v. Union of India and Others (20.01.2000 - DELHC) Service Law - Appointment--Judicial review Appointment to the office of Chairman of Securities and Exchange Board of India in exercise of powers under section 4(4) of Securities and Exchange Board of India Act, 1992--No public interest involved in the controversy relating to appointment for a term of five years as against three years--Highly belated petition--Petition, dismissed with costs. N. Kannadasan v. Ajoy Khose and Ors. (06.05.2009 - SC) 103. Appointment to the post of President of a State Commission must satisfy only the eligibility criteria of the candidate but also undertaking of the process of consultation. 184. It is difficult to accept the submission of Mr. K.K. Venugopal that such 'consultation' would be 'concurrence' as like the Collegium in the matter of making recommendation for appointment of Judges of the Supreme Court and the High Courts where the view of he Collegium shall have the primacy. For appointment as President of the State Commission, the Chief Justice of the High Court shall have the primacy and thus the term 'consultation' even for the said purpose shall mean 'concurrence' only. 187. For the aforementioned purpose the Court must bear in mind that the constitutional scheme of independence of the judiciary embodied in Article 50 of the Constitution of India should by no means be allowed to be eroded. 194. Before parting, however, we would place on record that Mr. Ramamurthy, learned Counsel on 5.5.2009 filed a memorandum before us stating that the appellant Shri N. Kannadasan has submitted his resignation. It is, however, stated that the said offer of resignation has been accepted by the State of Tamil Nadu. Moreover, there is no prayer for withdrawal of the special leave petition. 3. 6. In view of the above, he contended that the order passed by the State Government ought to have been entertained in writ petition.;