IMPORTANT POINT
The main legal point established in the judgment is the evaluation of the vires of subordinate legislation in relation to the parent Act, emphasizing the importance of interpreting the nature and duties of the posts, responsibilities, minimum qualifications, and salary to determine equivalence.

ORDER :

(Goutam Bhaduri, J.)

Heard.

1. Challenge in this petition is to the Rule 7 (a) of the Chhattisgarh State Waqf Rules, 2020 (hereinafter referred to as ‘the Rules, 2020’) that it is repugnant to Section 23 (1) of the Waqf Act, 1995 (hereinafter referred to as ‘the Act, 1995’).

2. In order to evaluate the facts the relevant provisions of Rule 7 (a) of the Rules, 2020 framed by the State of Chhattisgarh are reproduced hereinbelow:-

7. The terms and conditions of Service of Chief Executive Officer.- The appointment, terms and conditions of service of Chief Executive Officer under sub-section (2) of Section 23 of the Act shall be as given below:-

(a) There shall be a Chief Executive Officer by the Government on deputation who shall be a Muslim Government Servant not below the rank of Deputy Collector.

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3. The above Rule is claimed to be ultra vires as it goes beyond the scope of Section 23 of the parent Act, 1995. In order to adjudicate the relevant part of statute under lis, Section 23 of the Act, 1995 would also be relevant and is reproduced hereinunder:-

23. Appointment of Chief Executive Officer and his term of office and other conditions of service.- (1) There shall be a fulltime Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation.

(2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed.

4. The submission of the petitioner is that the State Government in exercise of power under Section 109 of the Act, 1995 has framed the Rules wherein Section 23 (1) of the Act, 1995 prescribes for full-time Chief Executive Officer of the Board, who is to be appointed. Without any further dilution, necessarily person should be a Muslim and is required to be appointed by the State Government by notification in the official Gazette from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government. The Section also provides that in case of non-availability of a Muslim Officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation. He would further submit that Section 23 of the Act, 1995 when is compared to the Rule 7 (a) of the Rules, 2020 it shows that the State Government has prescribed the term of office and other conditions of service of the Chief Executive Officer. Under sub-section (2) of Section 23 of the Act, 1995 the prescription has been made that the Chief Executive Officer shall not be below the rank of Deputy Collector. The submission is that when the Central Act specifically engrafts that the Chief Executive Officer who apart from being a Muslim is to be a Deputy Secretary to the State Government, the same cannot be substituted by the State through sub-ordinate legislation by Deputy Collector. He would further submit that in respect of the removal of Chief Executive Officer that since Respondent No.3 already has been relieved as on date, his prayer is only confined to the vires of Rule 7 (a) of the Rules, 2020. He would further submit that under the circumstances Rule 7 (a) of the Rules, 2020 is required to be declared as ultravires. He placed his reliance in the law laid down by the Supreme Court in the matter of Union of India and others Versus S. Srinivasan {(2012) 7 SCC 683} and would submit that when the Rule goes beyond the rule making power conferred by the statute, the same is liable to be declared ultravires. He would further submit that when the Rules made by the State, supplants any provision for which power has not been conferred and where source of power has also wrongly been adopt