The term of office prescribed under Section 15 of the Waqf Act can be curtailed in the case of nominated members, and the power to appoint includes the power of cancellation of appointment.

ORDER :

Leave granted.

2. The appointment of the first respondent herein 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, but the said cancellation was set aside by the High Court of Judicature at Bombay as arbitrary, in a writ petition filed by the first respondent, forcing the State of Maharashtra to come up with the above appeal.

3. We have heard Mr. Sachin Patil, learned standing counsel for the State of Maharashtra, Mr. Nishant R. Katneshwarkar, learned counsel appearing for the first respondent and Mr. Siddharth Bhatnagar, learned senior counsel appearing for the second respondent who has been appointed in the place of the first respondent.

4. The notification dated 13.09.2019 issued by the Minorities Development Department of the State of Maharashtra appointing the first respondent as a Member of the Maharashtra State Board of Waqfs reads as follows:

“…In exercise of the powers conferred by subsection (9) and clause (c) subsection (1) of section 14 of the Waqf Act, 1995 (43 of 1995), and in supersession of all earlier notifications issued in this behalf in so far as they related to the nomination of a person amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, the Government of Maharashtra hereby appoints from the category of “who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities”, Shri Mahemud Mahebub Shaikh as a Member on the Maharashtra State Boards of Waqfs, having its headquarters at Panchakki, Aurangabad for a period of five years from the date of publication of this notification or until further orders, whichever is earlier…”

5. The relevant part of the notification dated 4.03.2020 issued by the State, cancelling the appointment of the first respondent reads as follows:

“…And whereas, the Government of Maharashtra considers it expedient to cancel the appointment of Shri Mahemud Mahebud Shaikh as a Member of the said Board;

Now, therefore in exercise of the powers conferred by subsection (9) read with clause (c) of subsection (1) of section 14 of the Waqf Act, 1995 (43 of 1995) and of all other powers enabling it in that behalf, the Government of Maharashtra hereby cancels the appointment of Shri Mahemud Mahebud Shaikh of the said Board…”

6. The High Court, by the order impugned in this appeal, set aside the cancellation of appointment on the ground inter alia, (i) that Section 15 of the Waqf Act, 1995 prescribes a fixed tenure of five years, which can be curtailed only if the member is disqualified in terms of Section 16 or removed in terms of Section 20; (ii) that there is no place for the doctrine of pleasure and such appointments cannot be cancelled at the whims and fancies of the Government; (iii) that the reliance placed upon the State Government upon Rule 15 of the Rules of Business in support of their contention that the appointment of the respondent required the approval of the Chief Minister, but as a matter of fact such approval was not obtained, cannot have any application to the case since the position of the Member of the State Waqf Board cannot be equated to that of a statutory tribunal; and (iv) that the cancellation of appointment of the first respondent was arbitrary, warranting the interference of the High Court.

7. At the outset we should point out that the High Court was right in holding that the post of Member of the Waqf Board cannot be equated to that of a Member of the Tribunal and that Item No.23 under Rule 15 of the Rules of Business of the Maharashtra Government issued in terms of Article 166 of the Constitution has no application to the case on hand.

8. But 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 cur