Term Of Office Of A Nominated Member Of Wakf Board Can Be Curtailed: Supreme Court

The Supreme Court observed that the term of office of a nominated member of Wakf Board can be curtailed.

The bench comprising Justices Hemant Gupta and V. Ramasubramanian observed that appointment of members by the method of nomination always stands on a slightly different footing than election.

In this case, the appointment of one Shaikh Mahemud as a Member of the Maharashtra State Board of Waqfs, by a notification dated 13.09.2019, was cancelled by a subsequent notification dated 04.03.2022. The said cancellation was set aside by the High Court of Bombay as arbitrary. According to the High Court (i)  the term of office of a Member of the Board stipulated under Section 15 of the Waqf Act cannot be curtailed except in the case of disqualification under Section 16 or removal under Section 20; and (ii) the cancellation of appointment was arbitrary.

While considering the appeal filed by the State, the court noted that the appointment of the Members of the Board can be by two different methods namely, (i) election from each of the electoral colleges as stipulated in clause (b) of sub­section (1) of Section 14; and (ii) nominations by the State Government in terms of clauses (c), (d) and (e) of sub­section (1) of Section 14. The court also noted that the appointment in this case was by the method of nomination by the State Government in terms of clause (c) of sub­section (1) of Section 14. 

Referring to other provisions of the Act, the bench observed:

Though Section 14(9) is common to the appointment under both categories and though Section 15 speaks about the term of office of members appointed by a notification under Section 14(9), nomination always stands on a slightly different footing than election. Perhaps, as per the scheme of the Act, it may not be possible for the State Government to breach the process of election from each of the electoral colleges under clause (b) of sub­section (1) of Section 14, by curtailing the term of office of such elected members. But the same logic cannot be extended to nominated members. In other words, it may not be possible to hold that there is no elbow space for the State Government in the cases of nomination covered by clauses (c), (d) or (e).

... It must be noted that under clause (e) of sub­section (1) of Section 14, an officer of the State Government not below the rank of Joint Secretary to Government may be nominated to the Board. If Section 15 is construed in the manner in which the High Court has construed, such a nominated officer of the State Government may have to be allowed to continue, even if he reaches superannuation before completing five years of tenure. Therefore, it is not possible to accept the view of the High Court that the term of office prescribed under Section 15 cannot be curtailed. This is so at least in respect of a nominated member.

The court also rejected the contention that since Section 14 deals only with appointment and not with removal, the notification of cancellation was not in accordance with law. The court observed that the power to  appoint would include the power of cancellation of appointment.

The bench therefore allowed the appeal and upheld the cancellation notification.

Case details

State of Maharashtra vs Shaikh Mahemud | 2022 LiveLaw (SC) 363 | CA 2784 OF 2022 | 6 April 2022

Coram: Justices Hemant Gupta and V. Ramasubramanian

Counsel: Adv Sachin Patil for the appellant- State, Sr. Adv Siddharth Bhatnagar , Adv Nishant R. Katneshwarkar, for respondents

Headnotes

Waqf Act, 1995 ; Section 14,15 - Nomination always stands on a slightly different footing than election - It may not be possible for the State Government to breach the process of election from each of the electoral colleges by curtailing the term of office of such elected members. But the same logic cannot be extended to nominated members. (Para 10-12)

Waqf Act, 1995 ; Section 14 - The power to appoint would include the power of cancellation of appointment. (Para 14-15)

Waqf Act, 1995 ; Section 20 -  The procedure prescribed under Section 20 has no application in a case where the appointment was cancelled by the notification. (Para 16)

Administrative Law - For holding the action of the Executive to be arbitrary, there must be a factual basis. (Para 13)

Summary - Appeal against Bombay HC judgment which set aside the notification which cancelled appointment of one Shaikh Mahemud as a Member of the Maharashtra State Board of Waqfs - Allowed - The findings of the High Court (i) that the term of office of a Member of the Board stipulated under Section 15 of the Waqf Act cannot be curtailed except in the case of disqualification under Section 16 or removal under Section 20; and (ii) that the cancellation 4 of appointment was arbitrary, are incapable of being upheld.