Rizwan Ahmad & Others vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The petitioners have come up in this writ petition challenging the amendments made in the Uttarakhand Madarsa Education Board Act, 2017, as amended by Act No. 7 of 2018, besides this petitioners have further challenged the order dated 21.02.2018 passed by virtue of which their tenure of working as an Officiating Chairman has been cancelled.

Brief facts as involved in the instant writ petition apart from the philosophy behind the legislature for incorporating the Uttarakhand Madarsa Education Act, 2016, and its laudable principles which was required to be followed was aimed at to ensure imparting of education to the muslim community, in particular economically and socially backward masses it had in the Act itself under section 3 (a) had provided with the process and the eligibility of a person to be appointed as the Chairman of the Board. Section 3(3)(b), it provides with the directives and conditions as to who shall be Vice Chairman of the Board. In accordance with the definition clause and the constitution of the Board has been defined as to be the Board as constituted under Section 3 of the Act and the Director has been defined as the Director of Uttarakhand Madarsa Education Board, as well as, the ex-officio Registrar of the Uttarakhand Madarsa Education Board, Uttarakhand.

The provisions contained under Section 4 of the Act lays down the manner and the conditions in which the members of the Board could be removed from their office. However, for the said action as contemplated under Section 4, the exception which has been carved out by Section 4 is that the said process of removal would apply to the members of Board, "other than ex officio members" and the condition precedent for their removal as per Section 4 of the Act would be that it would be only when the member thus appointed if he has functioned or acted in flagrant abuse of his position, which was detrimental to the interest of the Board itself, the power of removal of them from their offices has been vested with the State Government, condition precedent is only but after adherence of the principles of natural justice. Later on, the State legislature felt necessary to amend Section 3 of the Act and as per the Act No. 7 of 2018 the following amendments were carried:

"

Short Title and commencement

1-

(1) This Act may be called the Uttarakhand Madarsa Education Board (Amendment) Act, 2017

(2) It shall be come into force at once.

Amendment of Section 3

2- In the sub section (3) of Section 3 of the Uttarakhand Madarsa Education Board, Act, 2016 (Act No. 06 Year 2016), hereinafter referred to as principal Act-

(i) Clause (b) shall be substituted as follows; namely:-

"(b) the Director, Uttarakhand Madarsa Education Board, who shall be the Ex-Officio Vice-Chairperson of the Board." (ii) Clause (b-1) shall be deemed repeated.

Amendment of Section 7

3- The sub-section (2) of Section 7 of the principal Act shall be substituted as follows, namely:-

"(2) The Chairperson shall preside the meeting of the Board. In his absence, the Vice-Chairperson of the Board shall preside the meeting. When Chairperson/Vice Chairperson both are absent, then any elected senior most member under clause (e) or clause (f) shall be Chairperson and he shall preside the meeting."

"

What would be relevant that for the purposes of the present case its the intention of the legislature which necessitated for bringing about the said amendment was that it was enacted in view of the need of the Government for the effective supervision of the muslim institutions providing training and education to the children belonging to the oppressed class or economically backward classes of muslim minority society, it was because of that reason that sub clause

(a) of sub-section (3) of Section 3 of the principal Act, dealt with the nomination of the members of the Board to be fielded as Chairman of the Board would have been the prime concern to look after the interest of the institution. The amending clause (b) of sub-section (3) of Section 3 of the principal Act of 2016, it provided for the one post of acting Chairman, two posts of Vice Chairman it was created who could be "nominated" by the State Government from amongst the muslim educationists, who enjoy a repute in the society and have a background of carrying on the traditional social activities of Madarsa Education as provided by the arabic system of education. It was under that backdrop, as the constitution of the Board by virtue of the amendment it provided with the requirement of appointment of the Acting Chairman, the post held by the petitioner, with which we are concerned in the instant writ petition and the two Vice Chairmen, i.e. petitioner nos. 2 & 3, who were appointed after the amendment was brought into effect by virtue of a gazette notification issued on 9.01.2018.

The argument of the learned counsel for the petitioners is that the basic intention of the legislature by amending the Act of 2016 it intended to somehow snap (cut short) the tenure of service of the petitioners, which otherwise the Chairman appointed under Section 3 of the Act was required to fulfill, i.e. a period of three years, and the action impugned in the writ petition, i.e. passing of the impugned order dated 21.02.2018, by virtue of which the State Government after an approval from His Highness, the Governor of the State of Uttarakhand, while exercising their powers under the provisions of the Amending Act had snapped the period of service of the petitioners, who were thus appointed as an Officiating Chairman and Officiating Vice Chairman as pleaded in the writ petition. Though during the course of arguments it has been argued by the learned counsel for the petitioners that, in fact, it has to be read as the Acting Chairman and the Acting Vice Chairman.

The argument of the learned counsel for the petitioners is that once by virtue of an appointment letter issued in favour of the petitioners appointing them as an Officiating Chairman and Vice Chairman, by the Government Order dated 06.12.2016, and that too for a period of three years, specified under law, it could not be cut short by the respondents by enforcement of the Amending Act of 2018.

He further submits that for the purposes of even being appointed as an Officiating Chairman or the Vice Chairman, the Board under the Act, one has had to be a member of the Board as provided under the Act and if there is a pre-condition of being a member of Board essential to be appointed as the Officiating Chairman or Officiating Vice Chairman is in existence, in that eventuality, the period of their appointment as made on 06.12.2017 could not have been curtailed by the order dated 21.02.2018, without satisfying the pre-conditions provided under Section-4 being fulfilled. Section 4 of the Act reads as under:

"4. The State Government may remove from the Board a member other than an ex-officio member who in its opinion, has so flagrantly abused his position as such member as to render his continuance on the Board detrimental to the public interest:

Provided that the State Government shall, before removing a member as aforesaid, give him an opportunity for submitting explanation and shall place on record reasons for his removal."

For the purposes of complying with the provisions contained under Section 4, which was not a subject matter of amendment under the Act of 7 of 2018, the provisions of Section 4 herein since had already carved out an exception and its inapplicability to the ex-officio office bearers and since its applicability is confined to the office bearers as contained under Section 3 of the Act, the provisions of Section-4 and the conditions contained therein would not be attracted, so far it relates to the appointment of the Chairman and the Vice Chairman in an officiating capacity. Literally, the term used as officiating capacity as against a particular office held by the person concerned would always denote that it is an arrangement which has been made to meet a contingency in the absence of regular incumbent in office. That is why the dictionary meaning of officiating as per oxford dictionary means 'act as an official'. It is not a lien or right which is being been created, its an arrangement made only until and unless the process of appointment as the Chairman or as a Vice Chairman as per process of the Act is adhereto in its totality in the manner it is provided under the Uttarakhand Madarsa Education Board Act of 2016. Hence, this Court is of the view that Section-4 of the said Act has got no applicability so far it relates to the continuance of the petitioners in the office in which they were appointed in an officiating capacity by the order dated 06.12.2016, as it would be deemed to be an arrangement made to meet the contingency.

The argument of the learned counsel for the petitioner is also from the view point that once an appointment even on an officiating capacity as a Chairman or a Vice Chairman has been made by the Government Order dated 06.12.2016, and it was for a specified period it cannot be curtailed in any manner whatsoever even by the Amending Act of 2018. In support of his contention, the learned counsel for the petitioners has placed reliance on a judgment rendered by the Division Bench of this Court in Special Appeal No. 809 of 2017 'State vs. Kiran Pal Valmiki & Others', along with other two connected special appeals, which were in relation to the appointment of the Chairman of Uttarakhand Safai Karamchari Commission, and there the facts was that an assumption of charge to an office in accordance to the tenure or the period provided under the norms as applicable to the commission was an issue of regular continuance in office after regular inductment not as an officiating capacity. On going through the judgment itself it rather contemplates the continuation of office of the Chairman of Safai Karamchari Commission, on a regular basis based on an office memorandum as provided under clause 2 (3) (1) of the memorandum dated 27.02.2009. There is a distinction, which could be carved out from the ratio as propounded by the Division Bench of this Court, where in the said case the Division Bench was considering and was seized with the enforceability of an office memorandum vis-à-vis the office bearers of the Commission. Under the law the Commission and the Board as created under the Act, in the instant case altogether enjoy a different legal status and the office bearer of the Commission, or the office bearers of the Board created under a statute cannot be kept at the same pedestal and cannot be meted out with the same treatment. The second reason for not accepting the argument of the counsel for the petitioner is that in the light of the ratio relied by the petitioners from the excerpts of the Division Bench judgment is also from the view point that the case before the Division Bench was not dealing with the contingency where the appointment on the post of the Chairman was made on an officiating capacity, rather it reflects that the Chairman in the said case of State Safai Karamchari Commission who was sought to be removed even prior to the closure or end of his tenure it was case considering the regular appointment or selection of the Chairman of the said commission. It is not the situation prevailing in the instant case because here after the Amending Act No. 7 of 2018. The petitioners have been appointed as an Officiating Chairman and the Vice Chairman, hence, this court is of the view that under law a Chairman or a Vice Chairman appointed on a regular basis cannot be equated with the Chairman or the Vice Chairman, who are appointed by way of an officiating basis or by way of an arrangement to meet a contingency as provided by the S.O.R. of the Amendment Act No. 7 of 2018. There is another judgment on which the reliance has been placed by the learned counsel for the petitioners in the case of 'D.S. Reddy vs. Osmania University & Others' as reported in AIR 1967 SC 1305.

In the said case the question which was under consideration pertained to the appointment of the Vice Chancellor of Osmania University, who was appointed by an order dated 30.04.1964 and later on his period of appointment was sought to be curtailed. Specifically the reference which has been made by the learned counsel for the petitioner is to the contents of paragraph-7, 8 and 22 of the said judgment, which are quoted hereunder:

"7. The Osmania University Act, was again amended by the Osmania University (Second Amendment) Act, 1966 (Act XI of 1966). Under this amendment, s. 13A was enacted. In brief, that section was to the effect that the person holding the office of the ViceChancellor, immediately before the commencement of the amending Act of 1966, was to hold office only until a new Vice-Chancellor was appointed under sub-s. (1) of s. 12, and it also provided that such appointment shall be made within 90 days after such commencement. There was a further provision that on the appointment of such new-Vice- Chancellor, and on his entering upon his office, the person holding the office of Vice-Chancellor immediately before such appointment, shall cease to hold that office. Section 7-A, which had been introduced by Act II of 1966, was deleted. Section 33-A was enacted, making special provision as to the re-constitution of the Senate, Syndicate, Academic Council and Finance Committee of the University.

The appellant filed Writ Petition No. 853 of 1966, in the High Court, praying for the issue of a writ or order declaring s. 5 of the Osmania University (Second Amendment) Act. 1966, which introduced s. 13A in the original Act, as unconstitutional and void. In that writ petition, he challenged the validity of the new Section, s. 13A on several grounds. In brief, his plea was that by virtue of his appointment as Vice-Chancellor for 5 years on April 30, 1964, he had acquired a vested right to hold that office for the full term and that such a vested right could not be taken away, during the currency of the period, by any legislative enactment. The legislature had no competence to enact the said provision inasmuch, as s. 13A could not be treated as legislation in respect of University education. The appellant had also pleaded that the provision virtually amounted to removal of the appellant from his office without giving him any opportunity to show cause against such removal. According to the appellant, even assuming the Legislature was competent to enact the provision in question, nevertheless, s. 13A is unconstitutional and void, inasmuch as it offends Art. 14 of the Constitution

The Act was amended in certain particulars by the Osmania University (Amendment) Act, 1966 (Act II of 1966) (hereinafter called the First Amendment Act). The First Amendment Act received the assent of the Governor on January 29, 1966. Section 6 of the First Amendment Act, introduced s. 7A, which we set out "7A. Instructions by the Government.-The Government may, after consultation with the University, give to the University, instructions relating to matters of major educational policy such as pattern of University education, medium of instruction and establishment of post-graduate centres, to be followed by it.

(2) In the exercise of its powers and performance of its functions under this Act, the University shall comply with the instructions issued under sub-section (1)." Similarly, s. 9 incorporated new sub-ss. (1) and (2) in s. 12 of the Act, as follows

(1) The Vice-Chancellor shall be appointed by the Chancellor.

(2) The Vice-Chancellor shall not be removed from his office except by an order of the Chancellor passed on the ground of misbehaviour or incapacity and after due inquiry by such person who is or has been a Judge of a High Court or the Supreme Court as may be appointed by the Chancellor, in which the Vice-Chancellor shall have an opportunity of making his representation against such removal."

Section 10, while effecting certain other amendments to S. 13. the Act, incorporated a new sub-s. (1), as follows :

"13. (1) Subject to the provisions of sub- section (2) of section 12, the Vice-Chancellor shall hold office for a term of three years from the date of his appointment and shall be eligible for re-appointment to that office for another term of three years only; Provided that the Vice-Chancellor shall continue to hold office after the expiry of his term of appointment for a period not exceeding six months or until his successor is appointed and enters upon his office, whichever is earlier.""

Factually the said case was yet again emanating from the controversy regards the enforceability of the provisions of an Act and was dealing with the condition of a regular adornment to the office on a post of the Vice Chairman of the Osmania University. It goes without saying and also as settled by law that the provisions of removal of a person holding an office on a regular basis after resorting to the process of his appointment as per the Act itself it will be only in that eventuality that the pre-conditions of the provisions pertaining for the removal was required to be followed. An arrangement or officiating appointment or an acting post on which a person is appointed as it happens to be in the instant case the regular process of removal, which as per the Act of 2016, provided under Section 4 of the Act will not be applicable for the petitioners who were holding their respective officers only on the acting or officiating post of the Chairman and the Vice Chairman, thus the ratios on which the petitioner has relied with will not apply in the instant case.

Subject to what has been observed above, this Court does not find any merit in the writ petition and accordingly the same is dismissed.

However, there would be no order as to cost.