WP (C) No.2001/2010 Page 1 of 37 * HIGH COURT OF DELHI : NEW DELHI + WP (C) No.2001/2010 Judgment reserved on : 22.09.2010 % Judgment decided on : 07.01.2011 Dr. Mohammad Rizwanul Haque ......Petitioner Through : Mr. Sandeep Sethi, Sr. Adv. with Mohd. Irshad Hanif, Adv. Versus Central Wakf Council & Ors. .....Respondents Through : Mr. A.S. Chandhiok, ASG with Mr. A.K. Bhardwaj, Mr. M.P. Singh, Advs. for UOI Mr. S. Wasim A. Qadri, Adv. for R-1 Mr. Syed Shahid Hussain Rizvi with Mr. A.K. Pradhan and Mr. Hamid Ashraf, Advs. for R-2 Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes. MANMOHAN SINGH, J. 1. This order shall dispose of the petition filed by the petitioner under Article 226 of Constitution of India challenging the order passed by the respondent No. 3 on 10.3.2010 whereby the respondent No. 1 through its chairman is directed to retire the petitioner from the post of the secretary to the Central Wakf Council (hereinafter referred to as Council) on 31.3.2010. The petitioner has challenged the said order by way of this WP (C) No.2001/2010 Page 2 of 37 petition on several counts. The brief factual matrix of the matter leading to filing of this petition are enunciated as under: (a) The petitioner is stated to be working as a Secretary to the Central Wakf Council after meeting the due qualification. The respondent No. 1 Central Wakf Council (for short CWC) is a statutory body constituted by Government of India under section 9(1) of the Wakf Act, 1995 for the various purposes and matters concerning the working of the boards and due administration of Wakfs. The respondent No. 1 Council comprises of several members inter alia, Union Minister Incharge of Wakf is the ex- officio Chairperson, other members include nominated members of Government of India, representatives of Muslim Organization, persons of national eminence, Judges of Supreme Court or High Court, Advocate of national eminence etc. (b) The petitioner has stated that in the year 1997, the advertisement for the post of Secretary appeared in the Employment News and pursuant to the same, petitioner applied for the said post and was appointed as Secretary to the respondent No. 1 by way of the appointment letter dated 03.07.1997. (c) The petitioner was initially appointed for the period of 1 year from the date of the appointment letter and subsequently on 22.8.2000 the Ministry moved the proposal to absorb the petitioner permanently which was ratified by the respondent Council in its 43 rd meeting held on WP (C) No.2001/2010 Page 3 of 37 29.08.2000 which provided that the petitioner shall be absorbed permanently. (d) The petitioner has averred in the petition that in the year 2008, the petitioner was served with a charge sheet relating to some departmental inquiry alleging that the petitioner during his tenure in 2001- 2002 had made some appointments acting as administrator of Punjab Wakf Board in contravention to rule 3 (i) and (iii) of CCS (conduct) Rules 1964. The petitioner has filed the detailed reply denying such charges. (e) On 01.09.2009, the Planning and Advisory Committee of the Council has made following resolution: “Recruitment rules for the post of secretary, Central Wakf Council approved in the 27th Meeting of the council held on 10th July 1988 simply says that the applicant for the post should be “ not below 45 years and not exceeding 60 years on the date of application relaxable on the discretion of chairperson in case of otherwise exceptionally qualified candidate”. This indicates that the council wanted the secretary to continue in the service of the council beyond 60 years. The Rule 7 (1) of Central Wakf Rules, 1998 (corresponding to Rule 5 of the Central Wakf Council Rules, 1965) states “there shall be a secretary to the council, who shall be Muslim appointed by the chairperson on such terms and conditions as may fixed by the council”. Therefore, it is the prerogative of the council to decide the age of retirement of its secretary. In case of the present secretary, Dr. M.R. Haque , the retirement age has not yet been decided, therefore, the committee in view of Rule 7 (1) of the Central Wakf Council Rules 1998 recommended that his retirement age may be fixed at 62 years. It can be further extended on the discretion of the council” (f) The said resolution dated 01.09.2009 was placed and approved by the Council in its 55 th meeting held on 05.10.2009. The WP (C) No.2001/2010 Page 4 of 37 minutes of meeting was duly approved by the Chairman and was circulated on 7.10.2009. (g) Pursuant to the said meeting, the office order dated 7.10.2009 No.12 (1)/97– CWC was issued which provided that the age of retirement of the present petitioner has been extended to 62 years. The petitioner submitted that the minutes of the said meeting was also sent to joint secretary, Ministry of Minority affairs, respondent No.3. There was no objection received from the government at the time when the decision was taken by the Council to extend the retirement age of the petitioner. (h) The petitioner submitted that he wrote to the enquiry officer in the disciplinary enquiry demanding the documents which were not supplied to him in support of the charges leveled against him. The said letter was written by the petitioner on 12.01.2010. Thereafter on 20.01.2010, the Chief Vigilance Officer of the Ministry of Minority Affairs wrote to the enquiry officers and to other officers of the Ministry to ensure that the petitioner is not posted on sensitive post on the ground that the petitioner was issued a major charge sheet. The said letter recommended necessary action and status report by 27.01.2010. (i) The petitioner also filed a representation to the Chairman on February 19, 2010 explaining the legal position regarding distinction of the appointment of Secretary as against the other staff. The said letter also referred to the resolution and decision taken by the respondent no. 1 in 55 th meeting in the year 2009. WP (C) No.2001/2010 Page 5 of 37 (j) That Respondent No. 3 vide letter dated 10.3.2010 explained the regarding the Central Vigilance Commission’s direction regarding the disciplinary case against the petition wherein the letter dated 20.01.2010 was also enclosed. It was also mentioned that the petitioner who will be 60 years of age by March 2010 should be allowed to retire on 31.3.2010 as per the government rules in absence of duly approved rules of CWC. The said letter also called upon the respondent No.1 to reconsider the decision regarding the extension of tenure of the petitioner. (k) The respondent No. 2 wrote the letter on behalf of the respondent No.1 on 16.3.2010 informing the orders passed by the respondent No.3 by enclosing the copy of the letter dated 10.3.2010 received from ministry addressed to Chairman. 2. The petitioner filed the present writ petition seeking to quash the orders passed by the respondent No. 3 on 10.3.2010 on various grounds. The petition was listed before this court on 23.3.2010 when this Court while issuing notice stayed the operation of the impugned order. The petitioner has urged several grounds in the petition which can be stated as under: a) Firstly, the petitioner contends that the impugned order is bad in as much as the terms and conditions of the service of the petitioner shall be determined by the Council and not by the Central Government or the Ministry and the same is the mandate of Section 9 of the Wakf Act and Rule 7 of the Central Wakf Council Rules WP (C) No.2001/2010 Page 6 of 37 1998. Thus, the appointing authority and the authority to determine the terms and conditions of the service and for that matter the retirement age is the council and not the government which makes the impugned order bad at the inception. b) Secondly the petitioner submitted that the Rule 7 of the Wakf Rules, 1998 clearly empowers the Council to fix the terms and conditions of the appointment. In terms of Rule 7, the Council vide its 55 th meeting dated 05.10.2009 has already approved and implemented the suggestion of the Planning and Advisory Committee and thereby caused to extend the age of retirement of the petitioner to 62 in contradistinction to 60 years which is mentioned in the order dated 10.3.2010. Thus, the said impugned order being contradictory to the age fixed by the Council is bad and liable to be quashed and the terms of the appointment fixed by the Council shall prevail. c) The reasons mentioned in the impugned order are incorrect which is that in the absence of the recruitment rules duly approved, the rules relating to ordinary Government employee shall apply. The said reasoning is erroneous according to the petitioner in as much as the Rule 7 itself empowers the Council to determine the terms and conditions of the appointment of the Secretary. Once, the said power is given to the Council, the Central Government Rules cannot be pressed into service. WP (C) No.2001/2010 Page 7 of 37 d) The Respondent No. 1 and 3 have deliberately misinterpreted the provisions of Rule 7 and Rule 13 which are applicable in different fields. Rule 7, as per the petitioner is meant for the post of Secretary which is reserved for a member of a particular religion in the present case a Muslim and Rule 13 will be applicable to other posts of the staff of the Council which are non reserved category. e) The impugned order suffers from malice as the respondent No. 1 and respondent No. 3 acted in malice as no objection to the Council’s decision dated 05.10.2009 was raised by the Government for more than 5 months of the communication. Secondly, the intimation to review the decision regarding the retirement age of the petitioner was referred to Council only on 16.3.2010 with council given no time to act knowing well that the Council is going to complete its term on 17.03.2010. f) The passing of the impugned order is arbitrary and without due authority of law and also against the principles of natural justice. 3. The Respondent No. 2 Mr. Ghazi Ul Islam has filed his counter affidavit stating as under : a) That the respondent No.2 is the development officer of the respondent No.1. The respondent No. 2 acknowledges that resolution dated 1.9.2009 was placed and approved by the Council and it was resolved that the retirement age of the present Secretary may be fixed at 62 years. WP (C) No.2001/2010 Page 8 of 37 b) The respondent No.2 also stated that in the 55 th Meeting held by the Council on 05.10.2009 presided by the Chairman, the minutes of the Planning and Advisory Committee meeting were approved and confirmed. The office order dated 7.10.2009 was also issued pursuant thereto. c) The respondent No.2 stated that on 17.3.2010, he received a call from the office of the Ministry of Minority affairs to come at the premises to sign some letters. The respondent Mo. 2 stated that he was asked to sign the letter dated 16.3.2010 already typed on the letter head of the Council addressed to all members of the Central Wakf Council forwarding the letter dated 10.3.2010 of Ministry of Minority affairs addressed to Chairman which was regarding the retirement of the petitioner. d) It is also stated by the respondent No. 2 that similarly on 23.3.2010 he was called by the ministry to sign order office memorandum on 23.3.2010 again typed on the letter head of the council stating that the petitioner will be retiring on 31.3.2010 and so would be handing over the charge to Shri Mohammad Afzal, Deputy Secretary Ministry of Minority Affairs. e) The respondent no. 2 has stated that he has acted under the direction of the senior officers of the Ministry of Minority affairs and none of the above decision was made by him independently. Further, the respondent No. 3 has filed the detailed counter WP (C) No.2001/2010 Page 9 of 37 affidavit wherein the respondent has sought to justify the impugned order by bringing into light the following facts: a) The respondent no. 3 submitted that the Ministry and Government has its role in appointment and setting out terms and conditions of the appointment of the petitioner. The respondent No.3 corroborates the said facts by highlighting the following:  The panel of selection committee recommended the name of the petitioner.  Vide order w.e.f. 14.07.1997, the Government of India, Ministry of Welfare offered the appointment to the petitioner for the post of secretary, CWC.  The petitioner sent a communication dated 7.7.1997 to Joint Secretary to Government of India, Ministry of Welfare accepting offer of appointment as per the terms and conditions mentioned in the letter of Deputy Secretary, Government of India.  The petitioner made a representation dated 6.2.1998 to the Secretary to Government of India, Ministry of Welfare expressing his willingness to continue as Secretary to CWC wherein he had sought for continuation.  On 2.6.1998, the petitioner herein had again made the representation for fixation of his pay to the Government/ respondent No.3. WP (C) No.2001/2010 Page 10 of 37  On 24.6.1998, the petitioner was given his letter of appointment detailing and fixing his pay scale. The respondent No. 3 by narrating the abovesaid events has argued that it is actually the respondent No. 3 which is the competent authority to decide the terms and conditions of the service of the petitioner and when the respondent No. 3 has directed the respondent Nos.1 and 2 to ask the petitioner to retire by 31.3.2010, the said decision was done by the competent authority and no interference is called for by this court as there is no fault in the decision making. b) The respondent No. 3 has stated in the counter affidavit that the appointment of the petitioner shall be regulated by the respondent No.3 only and to substantiate the argument, the respondent No. 3 relied upon Rule 13 (3) Central Wakf Council Rules, 1998 which reads as under: “Rule 13 (3) Except as otherwise provided by the Council, with the prior concurrence of the Central Government, the scale of pay, leave, conduct rules and other terms and conditions of the service for the various categories of posts shall be the same as may for the time being in force be applicable to the officers and servants, holding posts of corresponding scale of pay under the Central Government.” The respondent No.3 thus stated that it is central Government which can regulate the terms of service of the petitioner and the petitioner is trying to take contrary stand after being duly appointed on the terms fixed by the respondent No. 3. The said Rule 13 (3) as per the respondent No. 3 operates and empowers the Central Government to take such decision and thereby the impugned order is in consonance with the WP (C) No.2001/2010 Page 11 of 37 Rule 13. c) The respondent No. 3 also negated the applicability of Rule 7 on the ground that it was all the time Central Government which played the active role in the appointment of the petitioner and fixation of pay and other terms of the petitioner, nowhere in the appointment letter of the petitioner, it is stated that the petitioner is appointed in exercise of the powers under Rule 7 of the CWC Rules. Further respondent No. 3 argued that Rule 13 provides specifically about the pay scales and other terms of service and also provides for terms and conditions for various categories of posts which mean that the same shall have an overriding effect over and above Rule 7 whereby the Central Government will have the powers to regulate the terms of conditions of service as mentioned in Rule 13 and not the Council and thus Rule 7 has no applicability in the present case. 4. Mr. Sandeep Sethi, learned senior counsel appearing on behalf of the petitioner has made submissions to support his case which can be summarized in the following manner: a) Mr. Sethi has argued that the petitioner’s appointment has been made as per Rule 7 of CWC Rules 1998. Learned counsel for the petitioner has read the contents of the appointment letter to draw the support to his argument that it is the Chairman/ Chairperson which is the appointing authority on the terms and conditions fixed WP (C) No.2001/2010 Page 12 of 37 by the Council which is wording of the Rule 7. The appointment letter when read in consonance with Rule 7 and other rules will leave no room for any ambiguity so far as appointing authority is concerned. b) Mr. Sethi, learned Senior counsel for the petitioner contended that Rule 13 has no applicability when it comes to regulating the terms and conditions of the Secretary which is sole prerogative of the Council as per Rule 7. Learned counsel for the petitioner has argued that there is a fine distinction between the Rule 7 and Rule 13 of the CWC Rules 1998 and both operate in a different fields. Learned counsel for the petitioner has supported his argument by relying upon judgment passed by Hon’ble Apex Court in The J.K. Cotton Spinning and Weaving Mills Co. Ltd vs. The State of Uttar Pradesh & Others, AIR 1961 SC 1170 ,wherein the Apex Court observed that within the same statute itself, there may be provisions which may operate generally and specifically. The special/specific provision enacted for specific purpose will override the general provision to the extent to serve the purpose for which it is enacted. Applying the said principle, the learned counsel submitted that the provision relating to the Secretary ( including appointment etc) is Rule 7 as against Rule 13 which relates to staff of the Council. Thus, both the provisions operate in a separate fields and thus Rule 13 cannot be pressed in to service when it comes to regulating the WP (C) No.2001/2010 Page 13 of 37 terms and condition of service of Secretary of the Council. c) Learned Senior counsel for the petitioner has argued that the Council from time to time has fixed the age limit of Secretaries who have worked for the Council for the past. Earlier there was a 27th Council meeting held on 10.07.1988 which resolved the age limit of the secretary would be 60 years. However, in 55 th meeting, the said age was extended to 62 years and it was resolved and decided that the petitioner’s retirement age is fixed at 62 years. Learned counsel for the petitioner thus argued that the respondent No. 3 direction cannot be in conflict with the council decision to fix the age of the petitioner and the same is thus ultra vires the Rules of the Council. d) Learned Senior counsel further submitted that there are several other Secretaries in the past who have retired after the age limit and at the discretion of the Council which further makes it clear that it is the Council which has the role to play in fixing the terms and conditions of the Secretary and not the Government. The petitioner has given instances in the petition along with the names of the earlier Secretaries. e) Lastly, Mr. Sethi learned Senior counsel for the petitioner has argued that the order of the respondent No. 3 besides being ultra vires also suffers from malice as the said decision was made in haste and with the knowledge that the Council is going to dissolve WP (C) No.2001/2010 Page 14 of 37 on 17.03.2010 and cannot have its say thereafter. Accordingly, the respondent no.3 order through respondent No. 2 without proper approval of Chairman as well as on the last day of the Council when the council in exercise of powers under Rule 7 has already fixed the age of the petitioner suffers from malice, arbitrariness. 5. Learned counsel for the petitioner summed up his arguments by stating the present case is a fit case for this court to interfere as the respondent No. 3 has acted contrary to Rule 7 and attempted to override the decision making of the Council. Further, the respondent No. 3 acted in malice and therefore the order passed by the respondent No. 3 is liable to quashed. 6. Per Contra, learned ASG Mr. Chandhiok appearing on behalf of the respondent No.3 has made his submissions which can be enumerated as under: a) Mr. Chandhiok, learned ASG firstly argued that the petitioner has not properly disclosed the complete facts before this court as the respondent No. 3 has written on 10.3.2010 to the council stating that the matter was put up before the competent authority in the Ministry and it has been decided that Dr. Haque, who will attain the age of 60 years should be allowed to retire on 31.03.2010. Thus, the there is no malice or malafide on the part of the respondent No. 3 and rather the said decision has been made by the competent authority as per the Rules. WP (C) No.2001/2010 Page 15 of 37 b) Learned ASG strenuously argued that it is the respondent No. 3 which is the competent authority and not the CWC. Learned ASG relied upon Rule 7 and Rule 13 which reads as under: Relying upon both the rules, learned ASG has sought to made a distinction between the language of Rule 7 and Rule 13 wherein the words Chairperson and Chairman are used. He submitted that the Chairperson is only acting as an appointing authority and it is actually the Central Government which makes the actual appointment of the Secretary. Learned ASG submitted that Rule 13 will be applicable to regulate the terms and conditions of service of the petitioner. c) Learned ASG further submitted in practical sense also, it is the respondent No. 3 which has made the appointment of the petitioner. Learned ASG relied upon several instances pleaded in the reply/counter affidavit to urge that the Ministry has its role in appointment of the petitioner which are again reproduced hereinafter; d) Learned ASG replying to the argument of the petitioner submitted that once Rule 7 is read along with Rule 13, the same makes it clear that Rule 13 will govern each and every post in the Council wherein the Central Government and Rules applicable to Central Government employees shall operate. Learned ASG has sought to amplify his argument by referring to Rule 13 (3) which talks about various categories of the posts. WP (C) No.2001/2010 Page 16 of 37 8. Learned ASG submitted that once the said Rules talks about various categories of posts and not to the staff, the operation of the said Rule 13(3) cannot be circumscribed to staff only and must be given its fullest effect by interpreting in widest amplitude. 9. Learned counsel further argued that heading of Rule 13 which talks about staff of the Council cannot take away the plain words mentioned under Rule 13 (3) and thus this Court should not merely be convinced by the headings or marginal note of the provision. 10. Learned ASG has relied upon the judgment passed by Supreme Court of India in Frick India Ltd Vs. Union of India, (1990) 1 SCC 400, the excerpts of the judgment are reproduced herein after: “ 8. It is well settled that the headings prefixed to sections or entire cannot control the plain words of the provision; they cannot also be referred for the purpose of construing the provision when the words of the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt, the heading or subheading may be referred to as an aid in construing the provision