Rajendra Singh Bhandari vs State Of Uttarakhand on 29 November, 2022

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National Green Tribunal

Rajendra Singh Bhandari vs State Of Uttarakhand on 29 November, 2022

1. OA No. 318/2013 was disposed of by this Tribunal vide judgment dated 24.8.2016 on the subject of qualified persons being appointed to the 1 Pollution Control Boards. The operative part of the order of this Tribunal is as follows:

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145. For the aforesaid reasons, we are of the considered view that the State Pollution Control Board, with growing industrialization and increasing urbanization, has high responsibility. The functions of the Board are enormous which relates to the essential items like water on which stands the very existence of human being.

The Chairman/Member Secretary/Member of such Board are to be appointed strictly in accordance with the letter and spirit of law. They are to fulfil the requisite eligibility criteria for the constitution and working of the State Board. Proper constitution and functioning the State Board is a matter of serious concern which should be taken up by the State Government with full responsibility so as to ensure its smooth functioning. This could only be done when State Boards are manned by persons with basic qualification in field of science relating to studies in environment, as defined under the Act.

146. The Water Act of 1974 do give the eligibility criteria under Section 4(2) (a). Similarly under Section 5(2) of the Air Act. The meaning of the words used there in can be summerized as under:

The first criteria of "Special Knowledge" for appointment of Chairman, as prescribed under Section 4 (2) (a) of the Water Act and Section 5(2) of the Air Act unambiguously means knowledge acquired through a well-designed special programme/course based on topics pertaining to environment and its protection. The courses that would qualify to be imparting special knowledge in respect of environment, its degradation/pollution and environmental protection are available in the form of Master of Science in Environmental Science/Environmental Management and Master of Engineering/Master of Technology, in Environmental Engineering or an equivalent degree. So a person can be regarded to have special knowledge in environment and its protection only if he has to his credit either M.Sc. in Environmental Science/Environmental Management or M.E./M. Tech in Environmental Engineering or an equivalent degree. Special knowledge as explained above has to be accompanied with adequate experience in the field.

The other class contemplated under Section 4 (2) (a) and 5 (2)

(a) of the Water and Air Act is relating to persons having practical experience which has been placed as an alternative to the above class of persons falling under special knowledge. Here the stress has been laid on actual experience. This would mean that a person with a basic knowledge and understanding of environment and its protection, which he might have obtained in the form of a Degree in Science, would be eligible for appointment if he has had actual experience in environmental protection. One has to understand that practical experience in environment protection can only be, when a person has degree in science so as to have the basic knowledge and understanding of the subject. A person having practical experience in environmental protection and abatement of pollution, but without at 2 least the basic knowledge and understanding of the environmental processes through degree in Science subjects, cannot be regarded as eligible for the said post. It is therefore quite clear that as a pre-

requisite he must have at least basic knowledge, through degree in Science subjects, if not special knowledge, of the subject. And when we say subject, it means a subject which deals with environment and its protection or at least a component of environment and not any other subject. That leads us to hold that a person having practical experience must have a degree with Botany/Zoology/Chemistry or an allied subject wherein basic knowledge about ecology and environment are a part of the curriculum.

The third criteria "Knowledge and experience in administering institutions" dealing with matters of environment and its protection, also expects the incumbent to have a degree in Science subject and basic knowledge of environmental protection. This clearly indicates that the appointee under this category also needs to have a basic degree in Science with subject related to the environment and experience in the field.

From the above discussion, it may be concluded that three eligibility criterion have been given under law for appointment of Chairman. They have the difference of degree of knowledge which a candidate would be possessing in special knowledge, qualifications like practical experience or knowledge and experience in administering institutions dealing with matter of environment when he qualifies for appointment of Chairman under either of the three criterion. Keeping in view the enormous responsibilities which lies, with the Chairman of the Pollution Board and the degree of technical aspect involved which has also been taken note of by the Hon'ble Supreme Court; Central Government; in the meeting of All India Ministers of Environment; recommendation made by the various committees constituted for the purpose etc, the appointment should be strictly in accordance with the criteria stated in the judgement.

147. The eligibility criteria laid down under the Air Act namely, special knowledge or practical experience is of the same character and quality as given under Section 4(2)(a) of the Water Act.

It is noteworthy that under the Air Act which came subsequently in the year 1981 and is pari materia to the Water Act has not provided for nomination of a person as Chairman who has experience in administering institutions dealing with environment.

This development of conscious deletion by the legislative is not without significance. This makes the criteria special knowledge or practical experience extremely important and imperative for State Government while nominating a person as Chairman.

148. We have already discussed at great length the qualifications, practical experience or special knowledge that needs to be possessed before a person can be appointed as Chairman or Member Secretary in accordance with the provisions of the Acts of 1974 and 1981 respectively. To take up the example of Chairman and Member Secretary of Uttarakhand Pollution Control Board, we may notice that the Chairman is a Senior IAS officer holding a degree of MBBS and the Member Secretary is a member of IRS, having M.Sc. in Soil 3 Science and Agriculture Chemistry. The Chairperson under both these Acts could be appointed only if he possess special knowledge or practical experience relating environmental protection. While under Water Act it can also be a person having special knowledge and experience in administering institutions dealing with the matters of environment. At the cost of repetition, we may notice that the Chairman to be appointed to a State/Centre Board if is possessing special knowledge then he should essentially acquire such special knowledge after obtaining a degree of post Graduation in Environmental Sciences and Environmental Management or Degree in Engineering/ Technology in environmental engineering or an equivalent degree thereto. If he does not posses such degree the experience acquired by him in whatever capacity it might be, in our opinion would not satisfy the requisites of Section 5(2)(a) and 4(2) (a) of the respective Acts. If such Chairperson is being appointed as having practical experience then it would be essential for such person to acquire graduation degree in Science relating to subject like Geology, Botany, Chemistry or allied subjects. The practical experience should be only relating to the field of environment. In respect of other criteria of knowledge and experience in administering institution dealing with the matters of environment protection the persons should have gained such administrative experience but must possess graduation degree in Science subjects and basic knowledge of environment protection.

In the case of Member Secretary under either of the statutes, he should possess qualification, knowledge and experience of Scientific Engineering or Management aspects of Pollution Control as prescribed under the Act. In other words the expression Qualification has been used by the legislature only in relation to appointment of Member Secretary and not even for the Chairman. The emphasis on qualification thus necessarily mandates that a person to be appointed a Member Secretary must have the qualification i.e. Masters of Engineering, Technology, Environmental Engineering or allied Sciences where Pollution Control forms a component of the curriculum.

As far as the Members of the Board under the Act 1974 is concerned the legislature in its wisdom has not provided any qualification, experience or knowledge. However, under the Act of 1981 not less than two Members, to be nominated by the State Government, are to be persons having special knowledge or practical experience in respect of the matters relating to improvement of quality of air or prevention, control or abatement of air pollution. The categorisation of various classes which are to be nominated by the State or Central Government as the case may be, has been specified in Sub-section (b) to (e) of Section 4 (2) and 5 (2) respectively. The Members of the Board should be nominated within the prescribed limit and the number stated there under, without default and delay. Non representation of Members in the Board results in defeating the very purpose of legislation as the nominated Members who are statutorily required to be Members of the Board and participate in its business, are deprived of making their contributions in achieving the object of the respective Acts.

149. We have intentionally avoided to go into merit and demerit of the appointments individually. We had not given any Notice to show 4 cause to the Chairman/Member Secretary of different Boards as to why their appointments be not cancelled or withdrawn. It is in these circumstances that we have left that matter in the domain of the State Governments to examine the appointment of Chairman and Member Secretary of the respective Boards, in light of the statutory provisions and this judgement and then come to the conclusion as to where such appointments are liable to be set aside in accordance with law. If the competent Authority in the State Government comes to that conclusion then it must cancel/ withdraw the appointment of Chairman and/or Member Secretary as the case may and simultaneously takes steps for appointment of Chairman/ Member Secretary who are eligible to be appointed to these posts in accordance with the provision of the Act, criteria and guidelines stated in this Judgement. Their services should be dis-continued and appropriate notification including for new appointments be issued in accordance with the provisions of the respective Acts by the respective Governments within three months from the date of pronouncement of this Judgement.

150. Guidelines After considering the issue involved in the present Original Application and before parting with this order we deem it appropriate to issue guidelines to the State Governments/Union Territories for future, so that State Pollution Control Boards, on which lies the heavy responsibility for preventing and controlling water pollution, functions smoothly:-

1. The State Governments/ Union Territories shall constitute the Pollution Control Boards strictly in accordance to Section 4 of the Water Act and Section 5 of the Air Act, and the eligibility criteria as aforesaid, for appointment of Chairman/Member Secretary of the Board.

2. The State Government is to ensure that the person manning the post of Chairman/Member Secretary of State Pollution Control Board are competent and eligible with requisite knowledge or practical experience in the field of environment protection and pollution control, with experience of management.

3. The appointment as a, Chairman or Member Secretary, should be of persons who are having special knowledge or practical experience or qualification in environment protection studies and not by virtue of their designation in service of the State Government like Chief Secretary, Principal Secretary, Environment Secretary or even Politician like former Speaker, Minister, M.L.A, all literary persons and non technical persons.

4. The State Government are to notify the rules under Water and Air Act expeditiously specifying the qualifications and experiences required for the post of Chairman/ Member Secretary. The post of Chairman/ Member Secretary should be advertised and thrown open for all candidates irrespective of the fact whether they are in the Government, 5 Academia or in private sector, so as to attract the best talent to man the said post.

5. The nominated Chairman/Member Secretary should have a fixed term of office which should not be extended for more than one term. Such persons should not hold office in the Board in accordance to their tenure in State Government.

6. Once a person having requisite eligibility is appointed as Chairman/Member Secretary in the State Pollution Control Board, he is to continue for full tenure and the same is not to be curtailed by removal or by repatriated before its completion, unless there are charges of misconduct or cogent reasons which are to be placed on record. Completion of tenure as Chairman/ Member Secretary of the Board, not only gives security of service to the persons who are appointed but it is essential for efficiency of work and smooth functioning of the Board. A tenure unaffected by political and bureaucratic interference would be extremely important for the officials to function fearlessly and in accordance to the mandate of the legislation as given under relevant Environmental Protection Laws like Water Act, Air Act etc.

7. The State Government is to develop the infrastructure in the State Board by professional and technical officers who are efficient and competent to cope-up with increase of industries and development centres. They should ensure adequate manpower for the purpose of execution of provision of the relevant law.

8. The State Government should have latest equipped laboratories for analysis of samples of trade effluents etc.

9. The State Government is to ensure strict compliance of Section 8 of Water Act and Section 10 of the Air Act so that a meeting of the State Pollution Control Boards are held regularly and in accordance with law.

10. The State Governments and all concerned Authorities shall act in accordance with the directions contained in this judgement particularly paragraph 148 of the Judgment.

11. The State Government and all competent Authorities shall proceed to make appointment/ nomination of the Members of the Board as per categorisation and subject to the limitations of number provided under Section 4 and 5 of the Act of 1974 and 1981 respectively as expeditiously as possible, in any case not later than three months from the date of pronouncement of this Judgment.

With the above directions and guidelines, Original Application No. 318 of 2013 stands partially allowed however without any order as to costs."

2. On 12.7.2017, OA was listed to consider compliance status and adjourned sine die in view of pendency of appeal in the Hon'ble Supreme Court.

3. The appeal before the Hon'ble Supreme Court being Civil Appeal No. 1359 of 2017, Techi Tagi Tara vs. Rajendra Singh Bhandari & Ors. has since been allowed by judgment dated 22.09.2017, (2018) 11 SSC 734. The concluding part of the order is as follows:

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33. Keeping the above in mind, we are of the view that it would be appropriate, while setting aside the judgment and order of the NGT, to direct the Executive in all the States to frame appropriate guidelines or recruitment rules within six months, considering the institutional requirements of the SPCBs and the law laid down by statute, by this Court and as per the reports of various committees and authorities and ensure that suitable professionals and experts are appointed to the SPCBs. Any damage to the environment could be permanent and irreversible or at least long-lasting. Unless corrective measures are taken at the earliest, the State Governments should not be surprised if petitions are filed against the State for the issuance of a writ of quo warranto in respect of the appointment of the Chairperson and members of the SPCBs. We make it clear that it is left open to public spirited individuals to move the appropriate High Court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as a Chairperson or a member of any SPCB or is presently continuing as such.

34. The appeals are disposed of in light of the above discussion."

4. In view of above, no further order is necessary. The proceedings stand closed.

Execution Application No. 04/2017

5. Execution application No. 4/2017 was filed seeking enforcement of the judgment on 28.1.2017. Notice was issued in the application and on 7.3.2017, the matter was adjourned sine die in view of stay of the judgment 7 of the Tribunal by the Hon'ble Supreme Court in the pending appeal, as noted above.

6. In view of the fact that appeal itself has been decided by the Hon'ble Supreme Court and judgment of this Tribunal has been set aside, no further order is necessary in the execution application which will stand disposed of accordingly.

Adarsh Kumar Goel, CP Prof. A. Senthil Vel, EM Dr. Afroz Ahmad, EM November 29, 2022 Original Application No. 318/2013 with Execution Application No. 04/2017 DV 8

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