C.W.P. No.1670 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.1670 of 2009(O&M) DATE OF DECISION: MARCH 31, 2009 Fardeen Iqbal .....PETITIONER Versus State of Punjab and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Ashwani Gaur, Advocate, for the petitioner. Mr.Arvind Mittal, Addl.A.G., Punjab, for respondent No.1. Mr. Dinesh Goel, Advocate, for respondent No.2. Mr.P.B.S.Goraya, Advocate, for Mr.Atul Sood, Advocate, for respondent No.3. Mr.R.K.Malik, Sr.Advocate with Mr.Sajjan Singh Malik,Advocate, for respondent No.4. .. SATISH KUMAR MITTAL, J. Petitioner Fardeen Iqbal, who is resident of Malerkotla, District Sangrur, has filed the instant petition under Article 226 of the Constitution of India for quashing the order dated 29.1.2009 (Annexure P6) passed by Chairperson, Punjab Wakf Board (hereinafter referred to as `the Board'), being illegal and contrary to the Punjab Wakf Regulations, 1966; with a further direction not to permit respondent No.4 to act as C.W.P. No.1670 of 2009 (O&M) -2- Administrative Officer of the Board. Though the petitioner is not an employee of the Board, but claiming himself to be a Muslim and having an interest in the affairs of the Board, he has filed the instant petition. Respondent No.4 was working as Administrative Officer of the Board and was due to retire on 30.11.2007. Before his retirement on attaining the age of superannuation, the Board vide its Resolution No.12 dated 29.11.2007 decided/resolved to extend his services on the existing terms and conditions till further orders, which reads as under:- “The matter has been considered in length by the Board. It was unanimous view of the members that Board has already facing shortage of teachers in the school, staff shortage in the field and in the Head Office. Many officers have retired creating a crush in the administrative process. The retirement of Account Officer has already imparted on the financial functioning of the Board. The retirement of the Administrative Officer is bound to create a chaotic situation. To alleviate such a scenario, the Board has resolved to extend the services of Sh.S.H. Naqvi, Administrative Officer on the existing terms & conditions till further orders.” The aforesaid decision was taken by the Board under Section 30 of the Punjab Wakf Regulations, 1966 (hereinafter referred to as `the Regulations'), which is reproduced as under:- “30. Compulsory Retirement- Section 68(2)(e):- (1) The date of compulsory retirement of an employee of the Board is the date on which he attains the age of 60 years. He may be retained in service after that date in exceptional circumstances with the sanction of the Board on public grounds which must be recorded in the resolution of the Board; provided he is medically fit, but he must not be retained after the age of 65 years. C.W.P. No.1670 of 2009 (O&M) -3- (2) No extension shall be granted for more than a period of one year at a time and in the case of extension of a Class I and Class II employee beyond the age of 60 the medical fitness as aforesaid shall be certified before such extension.” It is the case of the petitioner that respondent No.4, who was due to retire on 30.11.2007, could not have been given extension for more than one year, but by the aforesaid Resolution, the Board has illegally extended the services of respondent No.4 till further orders. Therefore, according to the learned counsel, the continuation of respondent No.4 on the said post beyond 30.11.2008 is illegal and contrary to the Regulations. It has been further stated that earlier the petitioner had filed CWP No.983 of 2009 for setting aside the resolution (Annexure P1) and in that petition an interim order was passed on 21.1.2009 to the effect that if respondent No.4 had not been granted any extension, he shall not be permitted to continue. It is further the case of the petitioner that in spite of the said order, respondent No.2 vide impugned order dated 29.1.2009 (Annexure P6) has permitted respondent No.4 to continue in service as Administrative Officer. The said order has been challenged in the instant writ petition. Pursuant to the notice, separate written statements have been filed on behalf of respondents No.1, 2 and 4. I have heard the counsel for the parties. In the written statements filed on behalf of respondents No.2 and 4, it has been stated that the petitioner has intentionally and knowingly concealed certain material facts. The order dated 2.12.2008 passed by respondent No.2 which shows that the services of respondent No.4 had already been extended even before filing of the present writ petition, was intentionally withheld. It is disclosed that when the office of the Board C.W.P. No.1670 of 2009 (O&M) -4- pointed out that in view of Regulation 30 of the Regulations, the extension could have been granted for one year, whereas the Board in its decision dated 29.11.2007 had granted the extension to respondent No.4 on the existing terms and conditions till further orders, the file was put up before the Chairperson. It is pertinent to mention here that vide resolution dated 7.12.2005, the Board has delegated certain powers of the Board to the Chairperson, which reads as under: “Agenda No.2: Delegation of powers to the Chairperson and the Chief Executive Officer, Punjab Wakf Board by the Board. Resolution: Resolved that Punjab Wakf Board in exercise of the powers conferred under section 27 of the Wakf Act 1994 in the interest of the smooth functioning of the Board, delegates the following powers to the Chairperson and CEO of the Punjab Wakf Board respectively. Chairperson: 1. To supervise and control the administration of the Board generally in order to manage the affairs of the Board and to discharge the duties of the Board on day to day basis. The Chairperson shall exercise all powers of the Board. 2. xx xx xx” The Chairperson in view of the aforesaid Resolution dated 7.12.2005, had passed the order on 2.12.2008, which is reproduced below:- “Regulation/Section 30(2) is to be read with Section 30(1). Only the Board has the power to decide the matter. Till the Board decide the issue, the status quo shall continue and matter should be placed before the Board at its next meeting which should be convened at the earliest in consultation with the undersigned.” It is submitted that in view of the aforesaid decision of the Chairperson, respondent No.4 was ordered to continue to hold the post till C.W.P. No.1670 of 2009 (O&M) -5- the Board finally decides the matter according to the Rules. It has been stated that the said fact was not disclosed by the petitioner either in this writ petition or in the earlier petition filed by him before this Court. After hearing the counsel for the parties, I am of the view that the petitioner, who is not even an employee of the Board and having least interest in the affairs of the Board, has filed the instant petition in which he has concealed material facts from the Court. Undisputedly, respondent No.4 was going to retire on 30.11.2007, but before his retirement, the Board in exercise of its powers vested under Regulation 30 of the Regulations, passed a Resolution on 29.11.2007 vide which the services of respondent No.4 on the post of Administrative Officer were extended on the existing terms and conditions till further orders, keeping in view the fact that there was acute shortage of staff in the Board. If the aforesaid decision was to be taken as extension of one year, then the Board was required to modify that order and since immediately the meeting of the Board could not be convened, the matter was placed before the Chairperson of the Board, who, in view of the earlier decision of the Board dated 7.12.2005, passed the order dated 2.12.2008 to the effect that till the Board decides the issue, the status quo shall be maintained and the matter should be placed before the Board at its next meeting which should be convened at the earliest in consultation with the Chairperson. I do not find any illegality in the said order. Learned counsel for the petitioner argued that since the constitution of the previous Board, which had passed the Resolution on 7.12.2005 delegating powers of the Board to Chairperson, was quashed by this Court vide order dated August 13, 2008 passed in CWP No.10819 of C.W.P. No.1670 of 2009 (O&M) -6- 2005, therefore, any decision taken by that Board is also deemed to be illegal. I do not find any force in this contention of the learned counsel. In my opinion, the decision taken by the previous Board remains to be valid under the 'Defecto Doctorine'. It appears that the petitioner while making misrepresentation in the Court had obtained an order from this Court in CWP No.983 of 2009 and the factum of granting further extension/order of status quo by respondent No.2 on 2.12.2008 was not brought to the notice of the Court. Since respondent No.2 in exercise of her delegated powers has passed the order dated 2.12.2008 vide which it was decided to maintain status quo regarding services of respondent No.4 on the post of Administrative Officer with the direction that the matter be placed before the next meeting of the Board which should be convened at the earliest, I do not find any illegality in the said order as well as continuation of respondent No.4 on the post of Administrative Officer till the Board takes a conscious decision. In my opinion, the Board while passing Resolution No.12 dated 29.1.2007 has permitted respondent No.4 to serve as Administrative Officer till further orders. So the intention of the Board was to make him continue on the said post. Even on this aspect, I do not find any illegality or irregularity if respondent No.4 continues in service till the Board takes a conscious decision to further extend the period in accordance with Regulation 30 of the Regulations. The petitioner, who is not even an employee of the Board, is not going to be effected by the impugned order, but if on the other hand respondent No.4 is not permitted to continue on the post till the decision of the Board, the work of the Board is certainly going to be effected. Therefore, in the interest of the Board also, it was decided that respondent No.4 should continue on the post till the Board takes a C.W.P. No.1670 of 2009 (O&M) -7- conscious decision. In view of the above, I do not find any merit in this petition and the same is hereby dismissed. However, a direction is issued to respondent No.3, who is competent to convene the meeting of the Board, to convene the meeting of the Board immediately in consultation with respondent No.2, within a period of one month for considering the matter regarding extension of services of respondent No.4 in terms of Regulation 30 of the Regulations. March 31, 2009 (SATISH KUMAR MITTAL) vkg JUDGE