Bidhan Kumar Das vs The State Of Assam And 2 Ors
2021 Latest Caselaw 1816 Gua

                                                                     Page No.# 1/12

GAHC010107812021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/3377/2021

            BIDHAN KUMAR DAS
            S/O. LT. GANA NATH DAS, R/O. AASTHA HEIGHTS, FLAT NO.3B, M R D
            ROAD, BAMUNIMAIDAN, GUWAHATI-781021.



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
            ENVIRONMENT AND FOREST DEPTT., DISPUR, PIN-781006.

            2:THE JOINT SECRETARY
            TO THE GOVT. OF ASSAM
             ENVIRONMENT AND FOREST DEPTT.
             DISPUR
             PIN-781006.

            3:THE CHAIRPERSON

             POLLUTION CONTROL BOARD ASSAM
             DEPTT. OF ENVIRONMENT AND FOREST
             GOVT. OF ASSAM
             BAMUNIMAIDAM
             GUWAHATI-781021

Advocate for the Petitioner   : MR N DUTTA

Advocate for the Respondent : SC, FOREST

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Page No.# 2/12

JUDGMENT AND ORDER CAV

Date : 10-08-2021

Heard Mr. P. Mahanta, learned counsel for the petitioner. Also heard Mr. P.N. Goswami, learned Addl. Advocate General for the State, assisted by Mr. S. Baruah, learned standing counsel for the respondents.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the advertisement dated 08.07.2021 published on 10.07.2021 issued by the respondent no.1 in respect of the post of Member Secretary, State Pollution Control Board of Assam, which he is currently holding as an In-Charge. The petitioner has also prayed for other consequential directions.

3) The State Pollution Control Board, Assam has been established as per the requirement of the (i) Air (Prevention and Control of Pollution) Act, 1981, (ii) Air (Prevention and Control of Pollution) (Assam) Rules, 1991, (iii) Water (Prevention and Control of Pollution) Act, 1974, and Water (Prevention and Control of Pollution) (Assam) Rules, 1977. The State Rules have been amended by virtue of (i) Air (Prevention and Control of Pollution) Assam (Amendment) Rules, 2021, and (ii) the Water (Prevention and Control of Pollution) Assam (Amendment), Rules, 2021. It is not disputed in the Bar that both the Air Act and the Water Act are pari materia in so far it relates to age, Page No.# 3/12

qualification and tenure of the service relating to the post of Member Secretary. However, in the Air Rules, the relevant provisions are contained in Rule 3, whereas in the Water Rules, the relevant Rules are contained in Rule 20. It may be mentioned that the learned counsel for both sides have made their respective submissions by referring to the provisions of the Water Rules. Hence, in this order, reference is only made to the Water Rules.

4) By virtue to amendment to Rule 20 of the Water Rules, in respect of the post of Member Secretary, the upper age until which a person can hold the post was prescribed as 60 (sixty) years under Clause (b) of Sub- Rule (B) of Rule 20 of the said Water Rules, and that under Clause (9) of Sub- Rule (B) of Rule 20, the tenure of the Member Secretary was prescribed as 3 (three) years.

5) The facts are not in dispute. For the purpose of brevity, it would be sufficient to mention that the petitioner claims to be the senior-most qualified Engineer and is presently acting as the In-Charge Member Secretary of the Pollution Control Board, Assam. In the employment advertisement published in the newspapers on 10.07.2021, it has been prescribed that the age limit for appointment to the post of Member Secretary shall not be exceeding 57 (fifty- seven) years as on the closing date of the application. It was also prescribed that the Member Secretary shall have a fixed tenure of 3 (three) years not extendable further.

6) In light of the said two conditions prescribed in the impugned Page No.# 4/12

employment advertisement, the learned counsel for the petitioner has submitted that the maximum age as prescribed by way of the said advertisement was not in consonance with the Rules. It is submitted assuming that there was any deficiency in the Rules, by executive decision, the authorities could have given conditions in the advertisement to supplement the Rules, but the authorities could not have supplanted it by prescribing a minimum and/or maximum age for applying for the said post. It is submitted that the said two conditions were adverse to the interest of the petitioner as he would be rendered ineligible to apply for being appointed to the post of Member Secretary because he is now about 58 years. It is submitted that the post of Member Secretary was all along held on In-Charge basis. Accordingly, it is submitted that as the Rules prescribe maximum age of 60 years till which a person can be holding the post of Member Secretary, the petitioner who is now aged 58 years, if selected and appointed, would hold the post of Member Secretary for a shorter tenure of what is left of his service career. In this regard, it is submitted that for every employment, there may be a tenure prescribed, but that cannot be interpreted that one must complete the tenure, even if he is appointed for a period shorter than the prescribed tenure. It is submitted that in respect of advertisement issued by the Punjab Pollution Control Board to fill up the post of the Member Secretary, it has been provided that the term of office would be three years or till completion of fifty eight years of age whichever is earlier. Accordingly, it is submitted that similar words ought to have been inserted in the advertisement in respect of the State of Assam.

7) It is submitted that in light of directions contained in the case of Techi Tagi Tara Vs. Rajendra Singh Bhandari & Ors., (2018) 11 SCC 734 , not Page No.# 5/12

only the Air Rules and the Water Rules had to amended by the State of Assam, but various posts in the State Pollution Control Board, Assam had to be advertised for appointment. Accordingly, it is submitted that the purpose sought to be achieved by prescribing the terms, conditions, tenure and qualification for appointing Member Secretary of State Pollution Control Board was that the said post should be manned by suitable professionals and experts. Therefore, to give an advertisement to entitle only those people to apply who would serve full three year's tenure would deprive persons with experience like the petitioner to hold the post of Member Secretary of the Pollution Control Board, Assam who is at present the senior-most qualified engineer in the said Board. It is also submitted that by prescribing entry age of 57 years, a unreasonable classification has been created by the respondents, which has caused disqualification of the petitioner, and that such disqualification had no nexus to the purpose sought to be achieved and as such it is submitted that the advertisement be struck down. In support of his submissions, the learned counsel for the petitioner has placed reliance on the case of (i) Techi Tagi Tara (supra), (ii) Ashish Kumar Vs. The State of Uttar Pradesh & ors, (2018) 3 SCC 55, (iii) Raminder Singh Vs. State of Punjab & anr, (2016) 16 SCC 95, (iv) Dr. Rajendra Nath Borpujari Vs. State of Assam & Ors., (2014) 5 GLR 551 , and (v) Kuladhar Chakraborty & Ors. Vs. Abdul Khandakar & Ors., (2008) 3 GLR 219 .

8) Per contra, the learned Addl. Advocate General has submitted that the age and tenure prescribed in the impugned advertisement is in consonance with the amended Air Rules and the Water Rules. It is submitted that as the tenure is three years and the age of superannuation being fixed at the age of 60 years, one must enter service in the post of Member Secretary at Page No.# 6/12

the age of 57 years as on the last date of submission of application. It is submitted that in the case of Techi Tagi Tara (supra), reference is made to the reports of various committees envisaging different tenure and as the State Government had to amend the Air Rules and the Water Rules, the State Government had brought about an amendment to the said Rules prescribing age limit upto which one can hold the post of Member Secretary and had also prescribed the tenure of three years, as such, the age of entry in service had to be 57 years, which is simple arithmetic without supplanting or supplementing anything. It is submitted that if the argument of the petitioner is accepted, then it would amount to reducing tenure of 3 (three) years to lesser than three years. It is also submitted that the legality, validity or vires of the Rules has not been challenged.

9) The relevant provisions of the Rule 20(B)(6) and Rule 20(B)(9) of the Water (Prevention and Control of Pollution) (Assam) Rules, 1977, as amended by the Water (Prevention and Control of Pollution) Assam (Amendment), Rules, 2021 reads as under:-

(B) Appointment of Member Secretary:-

     (1) ***             ***           ***

        ***              ***          ***

(6) The other conditions of service of the Member Secretary in the matters of allowances, leave, joining time, joining time pay, provident fund, gratuity, age of superannuation and other conditions of service shall be regulated in accordance with such rules and regulations of the Government as are for the time being applicable to officers belonging to the corresponding pay scale stationed at those places.

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The upper age limit until which a person can hold the post of member Secretary is 60 (sixty) years.

*** *** ***

(9) The tenure of the Member Secretary in the Board shall be for a term of 3 Years from the date of his appointment by the Government of Assam, provided that he shall, notwithstanding the expiration of this term, continue to hold office until his successor enters upon his office. In situations like the Government being not in position to appoint a new incumbent as Member Secretary before the expiry of the term of the Member Secretary, or Member Secretary falling suddenly ill or proceeding on leave for a period exceeding 10 (ten) days, the Senior-most Secretary to the Government in Environment and Forest Department shall assume the duties of the Member Secretary suo-moto, till such time, but not exceeding three months, the incumbent Member Secretary returns or a new Member Secretary is appointed.

The term of office of the Member Secretary 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.

10) On a perusal of the case of Techi Tagi Tara (supra), it is seen that the Supreme Court had issued the following direction:-

"35. 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 Page No.# 8/12

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."

11) Thus, the State Government has amended the Air (Prevention and Control of Pollution) (Assam) Rules, 1991 and the Water (Prevention and Control of Pollution) (Assam) Rules, 1977, amongst others, prescribing the age of superannuation from the post of Member Secretary and the tenure for which such post is to be held. On a conjoint reading of Rule 20(B)(6) and Rule 20(B) (9) of the amended Water Rules, it is seen that while upper age until which a person can hold the post is 60 (sixty) years, the tenure of the Member Secretary is for a term of 3 (three) years from the date of his appointment by the Government of Assam. Thus, merely because it has been provided in the said advertisement that "the maximum age limit of appointment shall not be exceeding 57 (fifty seven) years as on the closing date of the receipt of applications", the Court does not find the advertisement to be vitiated by any illegality, perversity or contradicting any of the provisions of the Air Rules or the Water Rules. The interpretation by the learned Addl. Advocate General that only when a person is appointed at the age of 57 years that he would get a fixed tenure of 3 years and would be relieved from the said post on attaining the age of 60 years cannot be brushed aside. Thus, if the sole factor like the age of entry into service is interfered with, the result would be that either of Rule 20(B) (6) and Rule 20(B)(9) of the amended Water Rules would be diluted. In other words, if the petitioner is allowed entry to the post of Member Secretary at his Page No.# 9/12

present age of 58, the maximum age of appointment being 60 years, the petitioner would not get a tenure of 3 (three) years.

12) The case of Techi Tagi Tara (supra), is not found to help the petitioner or the respondents in any manner. The said judgment, as submitted by the learned counsel for the petitioner as well as the learned Addl. Advocate General for the State, is the reason why the State Government had to amend the Air Rules and the Water Rules. As the Court is unable to hold that there is any variance in the advertisement from the terms and conditions as prescribed in the Air Rules and Water Rules, the ratio of the cited case of Ashish Kumar (supra) does not come to the aid of the petitioner. The cited case of Raminder Singh (supra) is also not found to help the petitioner because the post of Chairman/ Member Secretary cannot be said to be a promotional post. Moreover, as already indicated above, the advertisement is not found to be in variance with the Rules.

13) On facts, the case of Dr. Rajendra Nath Borpujari (supra) is also found distinguishable. In the said case, the relevant Rules 19(4) and 19(5) relating to appointment to the post of Vice Chancellor read as under:-

"4. According to the petitioners, the advertisement impugned in this writ petition has been issued to suit the selection of the respondent no.6 who is the present Vice Chancellor. In this connection, the petitioner has referred to the provisions of Section 19 of the Assam Agricultural University Act, 1968 vis-à-vis the above quoted advertisement. For a ready reference, Section 19 as quoted in the writ petition is reproduced below:-

19.(1) The Vice-Chancellor shall be a whole-time officer of the University. He Page No.# 10/12

shall be an eminent scholar and administrator with background of Agriculture, Animal Husbandry and Veterinary Education, Research and Development. The first Vice-Chancellor after the commencement of this act shall be appointed by the Chancellor for a period not exceeding five years and on such terms and conditions as the Chancellor may determine. Subsequent Vice-Chancellor shall be appointed by the Chancellor for a panel of three names submitted by a Selection Committee consisting of:-

(a) One eminent agricultural scientist or educationist nominated by the Board.

(b) The Director general of Indian Council of Agricultural Research.

(c) A nominee by the State Government.

(2) A member of the Selection Committee shall not be a member of the Board of Management or employee of the University.

(3) The Vice-Chancellor shall normally hold office for a term of five years and shall be eligible for reappointment for one additional term of five years. The emoluments and other conditions of service of the Vice-Chancellor shall be such as may be determined by the Chancellor.

(4) xxxx xxxx xxxx

(5) In the temporary absence of the Vice-Chancellor, the senior most officer amongst the Deans should temporarily carry on the routine duties of the office. Where the post of Vice-Chancellor fall permanently vacant either by resignation or otherwise, the vacancy shall be filled by the Chancellor in accordance with provisions of sub-section (1) of this section and the Vice-Chancellor so appointed shall hold office for full term of five years.

5. The petitioners have also referred to the Annexure-3 notification dated 10/05/1977 so as to contend that by amending section 19(3) of the Act, the following proviso was added.

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Provided that no person shall hold the office of the Vice Chancellor beyond the age of 65 years."

14) The use of word "normally" appearing in Rule 19(3) is the distinguishing factor in the Air Rules and the Water Rules involved in this case. In the cited case, owing to the use of word "normally", it would be interpreted that the tenure of five years may be more or less. However, in the present case in hand, the Rules make it very clear that the upper age until which a person can hold the post is 60 (sixty) years, the tenure of the Member Secretary is for a term of 3 (three) years from the date of his appointment by the Government of Assam. The conditions mentioned in the impugned advertisement do not dilute, supplant or supplement the provisions of Rule 20(B)(6) and Rule 20(B)(9) of the amended Water Rules. Therefore, the cases of Ashish Kumar (supra) and Kuladhar Chakraborty (supra) do not help the petitioner in any manner.

15) In light of the discussion above, this writ petition fails. Accordingly, the writ petition is hereby dismissed.

16) However, before parting with the records of this case, the Court is inclined to observe that Rule 20(B)(13) of the Water (Prevention and Control of Pollution) (Assam) Rules, 1977 as amended by the Water (Prevention and Control of Pollution) Assam (Amendment), Rules, 2021 give power to the Government to relax any provisions with respect of any class or category of persons. Pari materia provision is available in Rule 3(B)(14) of the Air (Prevention and Control of Pollution) (Assam) Rules, 1991 as amended by the Air (Prevention and Control of Pollution) Assam (Amendment), Rules, 2021.

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Therefore, without treating the following observations to be a direction of this Court, it is hoped that notwithstanding the dismissal of this writ petition, if the petitioner makes an application within next three days before the competent authority of the Government of Assam for relaxation of provisions of the said Rules, the competent authority shall consider and dispose of such an application in its own merit within a period of 7 (seven) days from the date of receipt of such representation along with a copy of this order downloaded from the website of the Court. The competent authority shall be at liberty to verify the order from the website of this Court and act accordingly. Obtaining of certified copy is made optional for the petitioner.

JUDGE

Comparing Assistant