Karnataka High Court
R Anjaneya Reddy vs The State Of Karnataka on 29 November, 2023
Bench: Chief Justice, Krishna S Dixit
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WP No. 19569/2023 C/W
WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 19569/2023 (GM-FOR)
C/W
WRIT PETITION Nos.9526/2020(GM-RES),
9923/2020(GM-RES), 9500/2021(GM-RES),
9897/2021(GM-RES), 15179/2021(GM-RES),
19027/2023(GM-RES), 23417/2023(GM-POL)
IN W.P.NO.19569/2023:
BETWEEN:
DR. SHANTH. A. THIMMAIAH,
S/O THIMMAIAH,
AGED ABOUT 51 YEARS, CHAIRMAN,
Digitally signed KARNATAKA STATE POLLUTION CONTROL BOARD.,
by SHARADA PARISARA BHAVANA, NO.49, CHURCH STREET
VANI B
BENGALURU-560 001.
Location: HIGH
COURT OF ...PETITIONER
KARNATAKA (BY SRI.D R RAVISHANKAR., SENIOR ADVOCATE A/W
SMT. SIRI RAJASHEKAR., ADVOCATE)
AND:
1. THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA, BENGALURU-560 001.
REP BY ITS CHIEF SECRETARY.
2. THE PRINCIPAL SECRETARY,
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF FOREST, ECOLOGY & ENVIRONMENT,
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9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
NO.708, M S BUILDING, 7TH FLOOR,
NEAR VIDHANASOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560 001.
3. SRI. MAHADEV,
ENQUIRY OFFICER,
ADDITIONAL DIRECTOR,
KARNATAKA STATE ACCOUNTS DEPARTMENT,
3RD FLOOR, A BLOCK, TTMC BUILDING,
SHANTHINAGAR, BENGALURU-560 027.
4. KARNATAKA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ADMINISTRATIVE OFFICER,
MR.R.VENKATACHALAPATHY,
O/AT PARISARA BHAVAN, CHURCH STREET,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI.K SHASHIKIRAN SHETTY., ADVOCATE GENERAL A/W
SRI.DEVARAJ ASHOK., HCGP FOR R1 & R2;
SRI.VIKRAM HUILGOL., SENIOR ADVOCATE A/W
SRI.MAHESH A CHOWDHARY., ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
APPROPRIATE NATURE INCLUDING A WRIT INT HE NATURE OF
CERTIORARI TO QUASH THE INITIATION OF THE ENQUIRY
OFFICER VIDE No.AAPAJI/169/EPC/2023 DATED 26.07.2023
ISSUED BY THE 2ND RESPONDENT ANNEXURE-Q AND ETC.,
IN W.P.NO.9526/2020:
BETWEEN:
R ANJANEYA REDDY,
AGED ABOUT 50 YEARS,
S/O A RAMAIAH,
R/AT NAYANAHALLI, PATRENAHALLI POST,
CHIKKABALLAPURA TALUK AND DISTRICT-562 101.
...PETITIONER
(BY SRI.X M JOSEPH., ADVOCATE)
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE PRINCIPAL SECRETARY,
DEPARTMENT OF FORES, ECOLOGY & ENVIRONMENT,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA, BANGALORE-560 001.
3. THE MEMBER SECRETARY,
THE KARNATAKA STATE POLLUTION CONTROL BOARD.,
PARISARA BHAVANA, CHURCH STREET
BANGALORE-560 001.
...RESPONDENTS
(BY SRI.K SHASHIKIRAN SHETTY., ADVOCATE GENERAL A/W
SRI.DEVARAJ ASHOK., HCGP FOR R1 & R2;
SRI.VIKRAM HUILGOL., SENIOR ADVOCATE A/W
SRI.MAHESH A CHOWDHARY., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED GUIDELINES DATED 19.06.2020
ISSUED BY THE R-2 VIDE ANENXURE-A AND ETC.,
IN W.P.NO.9923/2020:
BETWEEN:
MR. KRISHNAIAH P SREENATH,
SON OF MR. K PARTHANATH,
AGED ABOUT 65 YEARS,
RESIDING AT 2390, 1ST FLOOR,
1ST A MAIN, 7TH B CROSS, VIJAYANAGAR,
BANGALORE, KARNATAKA- 560 040.
...PETITIONER
(BY SRI.ADITYA NARAYAN., ADVOCATE)
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF ECOLOGY & ENVIRONMENT
708, M S BUILDING, NEAR-VIDHANA SOUDHA,
AMBEDKAR VEEDHI, BENGALURU,
KARNATAKA 560 001.
REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE KARNATAKA STATE POLLUTION
CONTROL BOARD.,
PARISARA BHAVAN, NO. 49, CHURCH STREET,
BENGALURU, KARNATAKA 560 001.
REPRESENTED BY ITS CHAIRMAN
3. SRI. SRINIVASULU,
MEMBER-SECRETARY,
KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVAN, NO. 49, CHURCH STREET,
BENGALURU, KARNATAKA 560 011.
...RESPONDENTS
(BY SRI.K SHASHIKIRAN SHETTY., ADVOCATE GENERAL A/W
SRI.DEVARAJ ASHOK., HCGP FOR R1;
SRI.BASAVARAJ S.SAPPANNAVAR.,ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE DIRECTION
STRIKING DOWN THE GUIDELINES FOR NOMINATION, TERMS
AND CONDITIONS OF SERVICE OF CHAIRMAN, MEMBERS AND
APPOINTMENT OF MEMBER SECRETARY OF THE KARNATAKA
STATE POLLUTION CONTROL BOARD DATED 19.06.2020
ANNEXURE-A ISSUED BY R-1 AS VIOLATIVE OF THE ACTS,
CONTRARY TO THE DIRECTIONS ISSUED BY THE HONBLE
SUPREME COURT IN ITS JUDGMENT DATED 22.09.2017 AND
ULTRA VIRES THE INDIAN CONSTITUTION AND ETC.,
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
IN W.P.NO.9500/2021:
BETWEEN:
R ANJANEYA REDDY,
AGED ABOUT 51 YEARS,
S/O A RAMAIAH,
R/AT NAYANAHALLI, PATRENAHALLI POST,
CHIKKABALLAPURA TALUK AND DISTRICT-572 101.
...PETITIONER
(BY SRI.X M JOSEPH., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS CHIEF SECRETARY
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE UNDER SECRETARY TO GOVT
(ECOLOGY AND ENVIRONMENT)
FOREST, ECOLOGY & ENVIRONMENT DEPARTMENT
GOVERNMENT OF KARNATAKA,
M.S.BUILDING, BANGALORE-560 001.
3. THE MEMBER SECRETARY,
KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVANA, CHURCH STREET,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI. SHASHIKIRAN SHETTY., ADVOCATE GENERAL FOR
SRI. DEVARAJ ASHOK., HCGP FOR R1 & R2;
SRI. VIKRAM HUILGOL., AAG FOR
SRI. MAHESH CHOWDHARY., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED PUBLIC NOTICE DTD.21.07.2020
ISSUED BY THE R-2 VIDE ANNX-A AND FURTHER QUASH ALL
SUBSEQUENT SELECTION PROCESS ADOPTED BY THE STATE
GOVERNMENT FOR NOMINATING THE CHAIRMAN OF THE
KARNATAKA STATE POLLUTION CONTROL BOARD (KSPCB) AND
ETC.,
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
IN W.P.NO.9897/2021:
BETWEEN:
MR. KRISHNAIAH P SREENATH,
SON OF MR. K PARTHANATH ,
AGE ABOUT 65 YEARS,
RESIDING AT NO 2390, 1ST FLOOR, 1ST A MAIN,
7TH B CROSS, VIJAYANAGAR,
BANGALORE, KARNATAKA - 560 040.
...PETITIONER
(BY SRI. ADITYA NARAYAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF ECOLOGY & ENVIRONMENT,
708, M S BUILDING,
NEAR VIDHANA SOUDHA,
AMBEDKAR VEEDHI, BENGALURU,
KARNATAKA - 560 001.
REP BY ITS PRINCIPAL SECRETARY.
2. KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVAN, No.49, CHURCH STREET,
BENGALURU, KARNATAKA - 560 001.
...RESPONDENTS
(BY SRI. SHASHIKIRAN SHETTY., ADVOCATE GENERAL FOR
SRI. DEVARAJ ASHOK., HCGP FOR R1;
SRI. VIKRAM HUILGOL., SENIOR ADVOCATE A/W
SRI. MAHESH A CHOWDHARY., ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE AN
APPROPRIATE WRIT QUASHING THE IMPUGNED NOTICE DATED
21/07/2020 BEARING NO.FEE 143 EPC 2020 FOR THE
NOMINATION FOR THE POST OF CHAIRMAN TO THE
KARNATAKA STATE POLLUTION CONTROL BOARD UNDER THE
WATER (PREVENTION AND CONTROL OF POLLUTION) ACT,
1974 AND ETC.,
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
IN W.P.NO.15179/2021:
BETWEEN:
PARISARA ENVIRONMENT
PROTECTION ORGANIZATION (R)
BY ITS SECRETARY,
SRI ESHWAR PRASAD,
SPOORTHIVANA, CJF-BWSSB
18TH CROSS, MALLESHWARAM,
BENGALURU-560 055.
...PETITIONER
(BY SMT.ANASUYA DEVI K S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
DR AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE PRINCIPAL SECRETARY,
FOREST ECOLOGY & ENVIRONMENT,
M S BUILDING, DR AMBEDKAR VEEDHI,
BENGALURU-560 001.
3. KARNATAKA STATE POLLUTION CONTROL BOARD
BY ITS MEMBER SECRETARY,
PARISARA BHVANA, CHURCH STREET,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. SHASHIKIRAN SHETTY., ADVOCATE GENERAL FOR
SRI. DEVARAJ ASHOK., HCGP FOR R1 & R2;
SRI. VIKRAM HUILGOL., SENIOR ADVOCATE A/W
SRI. MAHESH A CHOWDHARY., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT THE GUIDELINES FOR NOMINATION, TERMS
AND CONDITIONS OF SERVICE OF CHAIRMAN, MEMBERS AND
APPOINTMENT OF MEMBERS SECRETARY OF THE KARNATAKA
STATE POLLUTION CONTROL BOARD UNDER THE PROVISIONS
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
OF THE WATER (PREVENTION AND CONTROL OF POLLUTION)
ACT, 1974, ISSUED BY THE GOVERNMENT OF KARNATAKA
UNDER GO NO. FEE 230.EPC,2017, BENGALURU DATED
19.06.2020 WITH CORRIGENDUM DATED 21.072020,
CORRIGENDUM DATED 21.09.2020 AND CORRIGENDUM DATED
06.11.2020, AS PER ANNEXURES - A TO D AS VALID AND IN
CONFORMITY WITH THE PROVISIONS OF S.4(2) (a) TO (f) OF
THE WATER (PREVENTION AND CONTRAOL OF POLLUTION)
ACT, 1974 AND IN CONFORMITY WITH THE LAW LAID DOWN
BY THE HON'BLE SUPREME COURT JUDGMENT DATED
22.09.2017 IN CIVIL APPEAL NO. 1359/2017 TECHI TAGI TARA
-VS - RAJENDRA SINGH BHANDARI AND OTHER - 2018 (11)
SCC 734 AND ETC.,
IN W.P.NO.19027/2023:
BETWEEN:
MOHAN KUMAR KONDAJJI,
AGED 67 YEARS,
EX MLC AND BOARD MEMBER KSPCB,
R/AT 218, 15TH CROSS, MAHALAKSHMIPURAM
BENGALURU 560 086.
...PETITIONER
(BY SRI.RAJENDRA M S., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BANGALORE 560 001.
2. THE PRINCIPAL SECRETARY,
DEPARTEMNT OF FOREST, ECOLOGY & ENVIRONMENT,
GOVERNMENT OF KARNATAKA ,
VIDHANA SOUDHA,
BANGALORE 560 001.
3. THE MEMBER SECRETARY,
KARNATAKA STATE POLLUTION CONTROL BOARD
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9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
PARISARA BHAVANA, CHURCH STREET,
BANGALORE 560 001.
4. SHANTH AVARAHALLY THIMMAIAH,
AGED ABOUT 50 YEARS,
RESIDING AT E-516, NYDHILE RESIDENCY,
GOTTIGERE, BANNERGHATTA ROAD,
BENGALURU - 560 083.
...RESPONDENTS
(BY SRI. SHASHIKIRAN SHETTY., ADVOCATE GENERAL FOR
SRI. DEVARAJ ASHOK., HCGP FOR R1 & R2;
SRI. VIKRAM HUILGOL., SENIOR ADVOCATE A/W
SRI. MAHESH A CHOWDHARY., ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO i)
ISSUE A WRIT OF QUO-WARRANTO OR ANY OTHER
APPROPRIATE WRIT PROHIBITING THE CURRENT CHAIRMAN
FROM EXERCISING HIS DUTIES AS THE CHAIRMAN OF THE
RESPONDENT NO.3 i.e., KARNATAKA STATE POLLUTION
CONTROL BOARD AND ETC.,
IN W.P.NO.23417/2023:
BETWEEN:
DR. SHANTH A. THIMMAIAH,
S/O THIMMAIAH,
AGED ABOUT 51 YEARS,
CHAIRMAN,
KARNATAKA STATE POLLUTION CONTROL BOARD,
PARISARA BHAVAN, No.49,
CHURCH STREET, BENGALURU - 560 001.
...PETITIONER
(BY SRI. D R RAVISHANKAR., SENIOR ADVOCATE A/W
SMT.SIRI RAJASHEKAR., ADVOCATE)
AND:
1. THE GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA, BENGALURU - 560 001.
REP BY ITS SECRETARY.
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
2. THE PRINCIPAL SECRETARY,
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF FOREST,
ECOLOGY & ENVIRONMENT,
No.708, M S BUILDING, 7TH FLOOR,
NEAR VIDHANA SOUDHA,
DR.B.R.AMBEKDAR VEEDHI,
BENGALURU - 560 001.
3. KARNATAKA STATE CONTROL BOARD,
REP BY ADMINISTRATIVE OFFICER,
MR.R VENKATACHALAPATHY,
O/AT PARISARA BHAVAN, CHURCH STREET,
BENGALURU - 560 001.
4. MEMBER SECRETARY,
KARNATAKA STATE CONTROL BOARD,
O/AT PARISARA BHAVAN, CHURCH STREET,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. SHASHIKIRAN SHETTY., ADVOCATE GENERAL FOR
SRI. DEVARAJ ASHOK., HCGP FOR R1 & R2;
SRI. VIKRAM HUILGOL., SENIOR ADVOCATE A/W
SRI. MAHESH A CHOWDHARY., ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
APPROPRIATE NATURE INCLUDING A WRIT IN NATURE OF
CERTIORARI TO QUASH THE COMMUNICATION BEARING
No.FEE 222 EPC 2023, DATED 10.10.2023 ISSUED BY THE 2ND
RESPONDENT VIDE ANNEXURE-E AND ETC.,
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS, THIS DAY, CHIEF JUSTICE PRONOUNCED THE
FOLLOWING:
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
ORDER
These eight cases, six of them filed in PIL jurisdiction,
regardless of the tenor of pleadings broadly raise the issue
relating to the norms of appointment and the normative
process of selection & appointment to the office of the
Chairman of the Karnataka State Pollution Control Board
(hereafter 'KSPCB'). It is relevant to state the principal
prayers made in each of the petitions. They are as under:
i) In W.P.Nos.9526/2020 & 9923/2020 (GM-
RES-PIL) , the prayer is for the quashment
of the Government Order dated 19.06.2020
through which the State Government has
issued the "Guidelines for nomination, Terms
and conditions of service of Chairman,
Members and appointment of Member
Secretary of the Karnataka State Pollution
Control Board under the provisions of the
Water (Prevention and Control of Pollution)
Act, 1974 (6 of 1974)". They also seek a
direction to issue these guidelines afresh
strictly adhering to the observations of the
Apex Court made in Techi Tagi Tara
vs. Rajendra Singh Bhandari,
(2018) 11 SCC 734. A prayer is made for
setting aside the appointment made in terms
of impugned guidelines.
ii) In W.P.Nos.9500/2021 & 9897/2021 both
(GM-RES-PIL), the principal prayer is for a
direction to the State Government to notify
the qualifications for the post of the
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
Chairman of KSPCB in terms of this court's
order dated 08.10.2020 as entered in the
pending W.P.No.9526/2020 c/w
W.P.No.9923/2020 that is the cases
mentioned in the immediately preceding
paragraph. A prayer is also made to initiate
a fresh process of appointment after the
qualifications are prescribed.
iii) In W.P.No.15179/2021 (GM-RES-PIL), the
essential prayer is for a Writ of Mandamus to
the State Government "to appoint the
Chairman to KSPCB in conformity with the
provisions of S.4(2)(a) of Water (Prevention
& Control of Pollution) Act, 1974" and
Guidelines dated 20.06.2020 as rectified by
the Corrigenda dated 21.07.2020,
21.09.2020 and 06.11.2020. A prayer is
also made for declaring these guidelines "as
valid..."
iv) In W.P.No.19027/2023(GM-RES-PIL), is for
a Writ of Quo Warranto against "the current
Chairman Dr.Shanth Avarahalli" and to
"prohibit" him from exercising his duties as
the Chairman of KSPCB.
v) In W.P.No.23417/2023(GM-RES), filed by
the present incumbent of the office of the
Chairman of KSPCB, the prayer is for the
quashment of the Communication dated
10.10.2023 which directed "to conduct the
meeting of State Level Environment
Committee (SLEC) with the composition of
all Chief Environment Officer and Senior
Environment Officer in charge of the
concerned section and Member Secretary as
the convener thereof..". The grievance of
the petitioner appears to be against his non-
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inclusion in the said Communication. He has
also sought for the quashment of the letter
dated 12.10.2023 issued by the Under
Secretary to the Department of Forest,
Ecology and Environment which mentions
about the intended promotion & posting of
the Chief Environment Officers from the
cadre of Senior Environment Officers.
vi) In W.P.No.19569/2023 (GM-RES) is also
filed by the present incumbent of the office
of the Chairman of KSPCB for the
quashment of the notification dated
31.08.2023 which by way of corrigendum
cuts short his tenure as the Chairman on the
premise that such appointment was made
for the remainder of the statutory tenure
and not the full tenure. He also seeks the
quashment of Communication dated
26.07.2023 whereby, some enquiry is
sought to be held against him."
(II). After service of notice, the respective
respondents have entered appearance through their
advocates. State is represented by the learned Advocate
General assisted by Additional Government Advocate/High
Court Government Pleader. The KSPCB is represented by
the learned Additional Advocate General assisted by its
Panel Counsel. Learned Advocate General appearing for
the State submits that the objections filed to petitioner's
to I.A.No.3/2023 in W.P.No.19569/2023 may be treated
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
as the objections to the main matter. The KSPCB has also
filed its independent objections in the said writ petition.
(III). We have heard the learned advocates appearing
for the parties and perused the records. The Petitions that
seek to lay a challenge to the Government Order dated
19.06.2020 whereby the Guidelines for selection &
appointment of Chairman to the KSPCB being promulgated
have become infructuous in view of the decision of a
Coordinate Bench of this Court in W.P.No.9205/2020
between SMT. GEETHA MISRA vs. STATE & OTHERS,
disposed off on 18.08.2020. The Bench having examined
the provisions of Section 4 of the 1974 Act and Apex
Court decision in TECHI TAGI TARA supra, repelled the
challenge to the validity of said Guidelines. The discussion
is found at paragraphs 4 to 8 of the said judgment. I has
been observed at fag end of paragraph 8 " ... We,
therefore, do not find anything illegal in the guidelines
laid down by the State Government". In paragraph 9, it is
further observed as under:
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WP Nos.9526/2020, 9923/2020,
9500/2021, 9897/2021, 15179/2021,
19027/2023, 23417/2023
"Subject to what is observed above, this is not
a case where interference can be made with
the guidelines issued by the State Government
in terms of the decision of the Apex Court.
Accordingly, the writ petition is disposed off."
Since challenge to the appointment of the Chairman was
laid on the premise that the subject Guidelines were
flawsome, now that too would a fortiori pale into
insignificance. In view of all this, the prayers in
W.P.Nos.9526/2020 & 9923/2020 have been rendered
infructuous.
(IV). In W.P.No.15179/2021 filed by Parisara -
Environmental Protection Organization the first prayer is
for a declaration that the subject Guidelines promulgated
vide Notification dated 19.06.2020 as amended by the
Corrigenda dated 21.07.2020, 21.09.2020 & 06.11.2020
are valid. Added, pursuant to interim order dated
08.10.2020 made in companion W.P.Nos. 9526/2020 &
9923/2020, certain developments have taken place, which
aspect will be discussed infra. The second prayer is for a
direction to the State Government to make appointment to
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WP Nos.9526/2020, 9923/2020,
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19027/2023, 23417/2023
the post of Chairman of the KSPCB in conformity with the
subject Guidelines. Since, challenge to the validity of
Guidelines has been negatived by the Division Bench, as
already mentioned, the first prayer does not survive for
consideration. Even the second prayer has also become
infructuous inasmuch as, the vacancy in the post/office of
the Chairman has been filled up with the present
incumbent Mr. Shanth A Thimmaiah who happens to be
the Petitioner in the companion W.P.No.19569/2023 &
W.P.No.23417/2023.
(V). AS TO W.P.No.19027/2023:
(a) The challenge in this petition is to the
appointment of the present incumbent Dr. Shanth A
Thimmaiah as the Chairman of KSPCB. The principal
ground of challenge is that the Guidelines of 19.06.2020
are not in consonance with the Apex Court decision in
TECHI TAGI TARA and that the process of selection ought
not to have been accomplished because of interdiction
made by the Division Bench vide order dated 06.02.2021
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in W.P.No.9526/2020 whereby earlier interim order dated
08.10.2020 was to some extent modified. The vehement
submission that the then ongoing selection process was
liable to be halted because of these orders, is founded on
certain observations made in para 17 of the interim order
dated 06.02.2021 which read as under:
"Even if the State Government has already
published advertisement for selecting the
Chairman and the Selection Committee has
completed the process, to avoid any
controversy, it will be appropriate if a fresh
process is conducted by notifying the
qualifications as laid down in this order".
(b) It hardly needs to be stated that the
observations made in court orders, more particularly
interim orders cannot be construed as the statutory
provisions. Sages of law have always maintained a
difference between the construing of Court Orders and the
interpretation of statutory provisions. What is said in
UNION OF INDIA vs. MAJOR BAHADUR SINGH, 2005 SCC
OnLine SC 1669 instructively runs as follows:
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"The courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation of
the decision on which reliance is placed.
Observations of the courts are neither to be
read as Euclid's theorems nor as provisions of
the statute and that too taken out of their
context. These observations must be read in
the context in which they appear to have been
stated. Judgments of the courts are not to be
construed as statutes. To interpret words,
phrases and provisions of a statute, it may
become necessary for judges to embark into
lengthy discussions but the discussion is meant
to explain and not to define. Judges interpret
statutes, they do not interpret judgments. They
interpret words of statutes; their words are not
to be interpreted as statutes. In London
Graving Dock Co. Ltd. v. Horton [1951 AC 737
: (1951) 2 All ER 1 (HL)] Lord MacDermott
observed : (All ER p. 14 C-D)
"The matter cannot, of course, be settled
merely by treating the ipsissima verba of
Willes, J., as though they were part of an Act
of Parliament and applying the rules of
interpretation appropriate thereto. This is not
to detract from the great weight to be given
to the language actually used by that most
distinguished judge...."
(c) The above observations at paragraph 17 of the
interim order dated 06.02.2021 made in pending
W.P.No.9526/2020 c/w W.P.No.9923/2020 (that are being
heard in this batch of petitions) need to be construed not
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as an island provision divorced from rest of the
observations that run into 18 more paragraphs. Even
otherwise, the text & context of the said observations do
not support the kind of construction sought to be placed
on them. What the Coordinate Bench said was not to
interdict the then ongoing selection process; it was more
like a sensible suggestion so that there would be no scope
for challenge to the culmination of selection process into
appointment. If the Bench really intended interdiction of
the ongoing selection process, it would have structured the
said paragraph in an imperative language, which
apparently it has not. Therefore, too much cannot be read
into said observations.
(d) Another Coordinate Bench of this court vide
order dated 6.9.2021 has observed as under:
"The petitioner (W.P.No.9500/2021) has filed
the present petition being aggrieved by the
public notice dated 21.7.2020 inviting
applications for the post of Chairman, Karnataka
State Pollution Control Board.
The contention of the petitioner is that the
aforesaid advertisement is contrary to the
provisions of Section 4(2) of the Water
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(Prevention and Control of Pollution) Act, 1974
and is also contrary to the law laid down by the
Hon'ble Supreme Court in the case of Techi Tagi
Tara v. Rajendra Singh Bandari
(C.A.No.1359/2017). Another writ petition i.e.,
W.P.No.9897/2021 is again against the same
advertisement and W.P.No.15179/2021 is a
petition for issuance of a direction to the State
Government to conclude the process of
appointment of Chairman at an early date. The
facts of the case in W.P.No.9500/2021 reveal
that a writ petition was filed i.e.,
W.P.No.27288/2019 challenging the
appointment of the then Chairman
Dr.K.Sudhakar, MLA, without framing the
guidelines and in consonance with the law laid
down by the Hon'ble Supreme Court and finally,
guidelines were framed by the State
Government on 19.6.2020.
This Court has permitted the State Government
to proceed ahead with the process of selection
and the recommendations of the Selection
Committee have been produced before us in a
sealed cover. In the considered opinion of
this court, as prayed for by the learned
counsel for the State, the State
Government is permitted to proceed ahead
with the process of selection, however, the
selection shall be subject to the final
outcome of the present writ petition and
other connected writ petitions as there is
no Chairman to Pollution Control Board
since 2020..."
(Emphasis supplied)
It has not been demonstrated before us that the present
incumbent Dr.Shanth A Thimmaiah lacked the eligibility
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criteria & qualification for being selected and appointed to
the post in question. The said appointment was preceded
by the exercise of the Search Committee headed by the
highest Executive namely, the Chief Minister and
therefore, in the absence of demonstration to the contrary,
we cannot readily assume that the Committee has not
done its job properly. Therefore, there is no merit in this
Petition.
(VI). AS TO W.P.Nos.9500/2021 & W.P.No.9897/2021
AND W.P.NO.9526/2020 C/W W.P.NO.9923/2020:
(a) The prayer in W.P.Nos.9500/2021 &
W.P.No.9827/2021 is essentially for the quashment of
Public Notice dated 21.07.2020 whereby applications had
been called for selection & appointment to the office of
Chairman of KSPCB. Petitioners have also sought for a
direction to the State Government to comply with the
interim order dated 08.10.2020 handed in the companion
W.P.No.9526/2020 c/w W.P.No.9923/2020. Both these
petitions have been structured keeping in view the
observations of the Apex Court in TECHI TAGI TARA supra,
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on which the very interlocutory order dated 08.10.2020
has been framed. The relevant paragraphs in the said
order are reproduced below:
"In these two petitions, very important issues
have been raised concerning the process of
appointing the Chairman, Members and Member-
Secretary to the Karnataka State Pollution Control
Board (for short, "the said Board"). Considering
the issues involved, we issue Rule Nisi. The
respondents waive notice.
3. Coming to the prayers made in these two
petitions, the common challenge is to the
Guidelines issued by the State Government by an
order dated 19th June, 2020. By the said
Guidelines, qualifications have been laid down for
nomination/appointment to the post of Chairman,
Members and the Member-Secretary of the said
Board. Clause (3) of the Guidelines in the
Annexure to the Government Order dated 19th
June, 2020 lays down the qualifications for the post
of the Chairman of the said Board. Clause (4) lays
down the maximum age limit for the post. Clause
(5) provides for a Search-cum-Selection Committee
for making a nomination to the post of the
chairman. The procedure to be followed by the
Search Committee is laid down in clauses (6) and
(7). Clauses (8) and (9) relate to the appointment
of the Member-Secretary to the said Board and
nomination of non-official members.
4. For the sake of completion, we may note
here that a writ petition was filed, being W.P.
No.9205 of 2020 in this Court for challenging the
same Government Order dated 19th June, 2020. It
was decided on 18th August, 2020. Paragraph 3 of
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the said judgment and order shows that the
substantive challenge before this Court was only to
the constitution of the Search-cum-Selection
Committee for making a nomination to the post of
the Chairperson. In paragraph 8 of the said
judgment and order, it was held that there was
nothing illegal about the constitution of the
Committee as per clause (5) of the guidelines
annexed to the impugned order. However, this
Court, while disposing of the petition, observed
that the Committee is bound by the guidelines laid
down by the Apex Court in its well known decision
in the case of TECHI TAGI TARA v. RAJENDRA
SINGH BHANDARI .
5. Coming back to the impugned order dated
19th June, 2020, as stated earlier, in paragraph 3
of the Guidelines annexed to the said order, the
qualifications prescribed for appointment to the
post of the Chairman have been laid down.
Paragraph 3 reads thus:
"3. No person shall be eligible for being
considered for nomination as the Chairman unless
he/she:
Possesses a Master's degree in Environment
Science or a Master's Degree in Environment
Engineering or an equivalent degree or allied
sciences from a recognized University or Institute
and has knowledge and experience in areas related
to environmental protection or has been a part of
administration in a Government Department or
Organization or University or Institute dealing with
environmental issues (including issues of air and
water pollution, waste management, natural
resources management and environmental impact
assessment)."
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8. After the further submissions were heard in
both the petitions, yesterday a memo has been
filed by the learned Additional Government
Advocate containing a report of the Additional Chief
Secretary to the Government, Department of
Forests, Ecology and Environment and a report of
the Principal Secretary, Department of Forests,
Ecology and Environment. The Committee
comprising of the said two officers appears to have
gone into various reports which are referred in the
decision of the Apex Court in the case of Techi Tagi
Tara (supra).
10. With the assistance of the learned
counsel appearing for the petitioners and the
learned Additional Advocate General, we have
considered in detail the issue of the qualifications
of the members of the said Board, and in
particular, the Chairman and the Member-
Secretary...
11. It is a well settled position of law
that the right to live in a pollution-free environment
is a fundamental right guaranteed under Article 21
of the Constitution of India. That creates a
corresponding obligation on the State as well as
the agencies and instrumentalities of the State to
ensure that different categories of pollution should
be prevented.
13. On a conjoint reading of the three
definitions, it is very clear that environmental
pollution means pollution of water, air and land.
Pollution would also include noise pollution created
by several factors.
25. Thus, the Air Act, the Water Act and
the said Act of 1986 and the aforesaid Rules
framed under the said Act of 1986 operate in
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different areas though there may be some
overlapping. What is important is, in the said three
enactments and the Rules, a pivotal role has been
assigned to the State Board and it can be safely
said that vast powers have been conferred on the
State Board for the implementation of the said
three laws and the Rules which have been enacted
for the protection of environment and ecology. In
fact, if the powers and duties of the State Board
under the aforesaid enactments and Rules are
carefully examined, it can be said that the State
Board is a watchdog in the matters of pollution.
Prevention of pollution of various kinds is the
responsibility of the State Board as can be seen
from the aforesaid enactments.
26. As stated earlier, the said Board must
have expertise of a higher standard in different
technical areas such as air pollution, water
pollution, pollution which may be caused by e-
waste, pollution created by plastic as well as the
issue of dealing with bio-medical waste, the issue
of dealing with construction and demolition waste
and most importantly, the issue of dealing with
solid waste management. Thus, the said Board
must consist of and must be manned by a person
who, apart from having a good administrative
capacity, should also have a substantial technical
knowledge in various fields which are being dealt
with by the said Board.
27. It is in this context, that the process
of appointment of the members will have to be
examined. In fact, the decision of the Apex Court
in the case of Techi Tagi Tara (supra) deals with
the issue of qualifications of the members of the
Board in paragraph (3), the Apex Court has
referred to Article 51-A (g) of the Constitution of
India, which contains fundamental duty of every
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citizen to protect and improve the natural
environment. It refers to 'who cares' attitude of
the State Governments of several states. The Apex
Court while dealing with a challenge to the order
passed by the National Green Tribunal (for short
the NGT) had recorded its dissatisfaction about the
manner in which appointments were made to the
State Pollution Control Boards. In the said
decision, the Apex Court has referred to the
recommendations and quotes of various
Committees in detail. The Apex Court has also
referred to the communications issued by the
Ministry of Environment and Forests on this aspect
and in particular, the communication dated 16th
August, 2005 which in turn refers to the Report of
the MGK Menon Committee which recommends
that a person seeking appointment to the post of
Member Secretary should possess a Post Graduate
degree in Science or Technology and adequate
experience of working in the area of environmental
protection. The said letter refers to the decisions
taken in the conference of the Ministry of
Environment in which it was resolved that the State
Boards shall be headed by technically competent
persons and not by journalists, politicians or
administrative Officers. After referring to the
various reports, the Apex Court in paragraphs 34
and 35 has held thus:
34. The concern really is not one of
a lack of professional expertise - there is
plenty of it available in the country - but
the lack of dedication and willingness to
take advantage of the resources
available and instead benefit someone
close to the powers that be. With this
couldn't-care-less attitude, the
environment and public trust are the
immediate casualties. It is unlikely that
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with such an attitude, any substantive
effort can be made to tackle the issues
of environment degradation and issues
of pollution. Since the NGT was faced
with this situation, we can appreciate its
frustration at the scant regard for the
law by some State Governments, but it
is still necessary in such situations to
exercise restraint as cautioned in State
of U.P. v. Jeet S. Bisht.15
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 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
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as a Chairperson or a member of any
SPCB or is presently continuing as such."
28. As far as qualifications prescribed under
the Water Act are concerned, we have already
referred sub-section (2) of Section 4. We may now
go back to the guidelines which is a part of the order
dated 19th June, 2020. Sl.No.3 of the Guidelines
prescribes the qualifications to the post of the
Chairman. It provides that the person must have
special knowledge or practical experience in respect
of the matters relating to environmental protection
or a person having knowledge and experience in
administering Institutions dealing with the matters
aforesaid, to be nominated by the State
Government. At Sl.No.3 it is merely mentioned that
a person can be a part of the administration of the
Government Department or Organization or an
Industry or an Institute dealing with the
environmental issues. The Section requires that a
candidate should have knowledge and experience in
administering institutions. Therefore, Sl.No.3 is not
in conformity with Clause (a) of sub-section (2) of
Section 4 of the Water Act and the corresponding
provision in the Air Act.
29. Now, we go to the modified clause
which is at Sl.No.8. We have reproduced the
recommendations of the two-member Committee to
modify the said clause which contemplates that the
appointment of Member Secretary can be made from
person in Indian Administrative Service (IAS) and
Indian Forest Service (IFS) cadres in the scale of
selection grade and above. Thus, the State
Government wants to appoint a Member-Secretary
only among the serving officers of IAS/IFS. Clause
(f) of sub-section (2) of Section 4 of the Water Act
does not require that the only officers of IAS/IFS
can be appointed. Though the recommendations
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which are part of various Committees which are
referred in the decision of the Apex Court
recommend higher qualification for the post of
Member- Secretary, the qualification prescribed is
only of any bachelor's degree. In fact, the
recommendation of MGK Menon Committee which is
quoted with approval in the letter dated 16th
August, 2005 issued by the Ministry of Environment
and Forests addressed to the Chief Secretary of all
the States, it is recommended that the incumbent to
the post of a Member- Secretary should possess a
Post Graduate degree in Science Engineering or
Technology and should have adequate experience of
working in the areas of environmental protection.
There is no reason assigned by the two-member
Committee why the said recommendation of
possessing Post Graduate degree in Science,
Engineering and Technology and having adequate
experience of working in the areas of environment
protection, has not been incorporated in the
qualifications laid down by the State Government.
30. Considering the pivotal role played by
the Member- Secretary, apart from possessing
administrative skills, he should have vast knowledge
in various fields and therefore, the recommendation
was made that the incumbent should possess Post
Graduate degree in Science, Engineering and
Technology.
31. The second objectionable part is that
contrary to what is provided in Clause (f) of sub-
section (2) of Section 4 of the Water Act, the State
Government wants that only persons belonging to
IAS/IFS should be considered for the post of
Member-Secretary. The same is contrary to the
scheme of the Air Act and the Water Act. Any
person who possesses the prescribed qualifications
is qualified for the post of Member- Secretary. If
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IAS/IFS officers are appointed, due to exigencies,
there will be frequent transfers of the said officers.
Moreover, if the Member-Secretary is changed
frequently, it will adversely affect the functioning of
the said Board. Therefore, in our view, the
qualifications which are prescribed by the State
Government for the post of the Member-Secretary
require reconsideration and experts in the field who
have vast experience in the field cannot be excluded
from consideration in the process of appointing the
Member-Secretary. Moreover, it is necessary to
ensure that the Member Secretary is allowed to
discharge his duties for a minimum period of two to
three years. If the officers occupying the post are
changed frequently, it will adversely affect the
functioning of the state/said Board(sic).
32. In our view, even the qualifications for
the post of Chairman require reconsideration. As
observed by the Apex Court in the case of Techi
Tagi Tara (supra), persons who are appointed as
the Chairman of the State Boards shall be persons
having special knowledge or practical experience so
that by their very presence, their expertise can be
used for protecting the environment including air
and water. In fact, in the light of the directions of
the Apex Court, it was the duty of the State
Government to prescribe educational qualifications
for the applicants to the members of the said Board.
33. Considering the pivotal and very
important role assigned to the said Board which is
becoming vital with every passing day, it is
necessary that the said Board is properly constituted
and the persons with experience and knowledge in
the field should be appointed as members. As
regards the Chairman and the Member-Secretary,
prima facie, much higher qualifications are required
to be prescribed. Therefore, we direct the State
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Government to reconsider the whole issue and come
out with properly drafted guidelines including proper
qualifications to the post of Chairperson, Members
and the Member-Secretary. We grant time till 5th
November, 2020 to do so.
34. Let the petitions be listed on 6th
November, 2020. Needless to add that, till the next
date, no appointments shall be made to the post of
Chairman, Members and Member- Secretary without
seeking the leave of the Court.
35. If the qualifications are modified
consistent with the decision of the Apex Court,
perhaps, a fresh process of nomination/appointment
will have to be conducted."
(b) Learned Advocate General appearing for the
State draws our attention to the subsequent interim order
dated 06.02.2021 rendered in W.P.Nos.9526/2020 c/w
W.P.No.9923/2020 whereby the earlier interlocutory order
dated 08.10.2020 has been slightly modified keeping in
view the Government's Corrigendum dated 21.09.2020.
What is observed at paragraphs 14, 15 & 16 in the
Modification Order being relevant, is also reproduced:
"14. Therefore, to summarize, on conjoint
reading of clause (a) of sub-section (2) of
section 4 of the Water Act as well as clauses
(2) and (3) of the said Government Order, a
candidate must satisfy the following
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requirements for being appointed as the
Chairman of the State Pollution Control Board:
(a) He must satisfy the requirement
of clause (a) of sub-section (2) of Section
4. When clause (a) refers to experience
in administering institutions, it means that
the person concerned must have
experience as an administrator of such
institutions;
(b) Even if a person satisfies the
requirement of clause (a) of sub-section
(2) of Section 4, he must satisfy the
requirement of clause (3) of the
Government Order dated 19th June 2020
of possessing the educational
qualifications mentioned therein. Merely
possessing the educational qualifications
as provided in clause (3) will not be
sufficient. Such person should have either
an experience in the areas relating to
environmental protection or should be a
part of the administration in Government
Department or Organization or University
or Institute dealing with environmental
issues. Only a person who has experience
of actually administering such
Government Department or Organization
or University or Institute will satisfy the
said criteria.
(c) Apart from the aforesaid
qualifications, the Selection Committee
must consider that the person who is
selected to occupy the post of Chairman
should be such that he will add value and
stature to the State Pollution Control
Board by his very presence so that he can
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utilize his experience in preserving and
protecting the environment.
15. To the above extent, the order dated 8th
October 2020 and observations made
thereunder in paragraph-28, stand modified.
Hence, the State Government will be entitled to
proceed with the process of appointment to the
post of Chairman Needless to add that the
process shall be conducted in a fair and
transparent manner, keeping in mind the
requirements laid down by the Apex Court.
16. The prayer as far as qualifications of
Members is concerned, stands rejected."
(c) As already mentioned above, the challenge to
vires of the Guidelines dated 19.06.2020 has been
negatived by the Coordinate Bench in W.P.No.9205/2020
(GM-RES-PIL). The submission of these Petitioners that
the Coordinate Bench in its orders dated 08.10.2020 and
06.02.2021 had specifically interdicted the selection
process that was already half way through and further had
instructed to undertake a fresh selection process, is
treated & rejected infra. The subject recruitment process
having been accomplished after due selection process, the
appointment has been done and that the appointee who
happens to be the Petitioner in the companion
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W.P.No.19569/2023 & W.P.No.23417/2023 has been
officiating now for more than a year. Suffice it to say that
this court is in complete agreement with the views
expressed in the order dated 08.10.2020 as modified by
the subsequent order dated 06.02.2021, which one can
formally call as 'interlocutory' because they are passed in
the pending Writ Petitions. However, they are well
considered orders of the Coordinate Bench with a lot of
elements of finality, cannot be disputed. In fact, the
stakeholders, more particularly, the State Government has
treated them as such and therefore, has issued
Orders/Corrigenda for their implementation by
modifying/adding the norms to the 19.06.2020 Guidelines.
(d) The Board plays pivotal role under a plethora of
legislations both Parliamentary and provincial:
Parliamentary legislations to name a few are, The Water
(Prevention and Control of Pollution) Act, 1974, The Air
(Prevention and Control of Pollution) Act, 1981 and The
Environment (Protection) Act, 1986, Mines and Minerals
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(Development and Regulation) Act, 1957, The Forest
(Conservation) Act, 1980, The Motor Vehicles Act, 1988,
etc. The Provincial legislations to cite a few are: The
Karnataka Municipal Corporations Act, 1976, The
Karnataka Town and Country Planning Act, 1961, The
Karnataka Urban Development Act, 1987, The Karnataka
Gram Swaraj and Panchayat Raj Act, 1993, etc. A set of
Rules/Regulations have also been promulgated under both
the Central and State Acts, hardly needs to be mentioned.
A perusal of these two orders shows the enormous time
and intellectual investment made by the Coordinate
Bench, of course, with the able assistance of the Bar, in
framing them. Nothing more is left for us to do than to
respectfully observe that these Writ Petitions merit
disposal with the reiteration of the said orders. Therefore,
we are of the considered view that the Search cum
Selection Committee whilst accomplishing the task 'must
consider' that the aspirant for the post of Chairman should
be such that if selected, he will add value & stature to the
institution of KSPCB. Therefore, we make it clear that
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hereafter this shall be a superadded norm to the extant
ones. With the observations and directions made in the
said two orders, all these four Writ Petitions can be
disposed off.
(e) The above having been said, we advert to the
Government Order No.FEE 230 EPC 2017 Bengaluru,
Dated:31.08.2023, a copy whereof is produced as
document No.24 in the convenient compilation filed by the
learned AG on 7.9.2023. This has been issued in the light
of observations in TECHI TAGI TARA supra and the
interlocutory 'order dated 6.2.2021 in W.P.no.9526/2020'.
Learned Additional Advocate General Mr.Vikram Huilgol
draws our attention to the ANNEXURE to this latest
Government Order which promulgates the norms
contemplated under the aforesaid two orders of the
Coordinate Bench and therefore, nothing more needs to be
done in these Writ Petitions. We have some reservation in
accepting this submission. The norm of 'value and stature
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addition' is enacted in clause 7 of the ANNEXURE, is true.
It reads:
"The Search cum Selection Committee shall go
through all the eligible applications and select
suitable candidate who adds value to the State
Pollution Control Board, after briefly recording
the reasons."
However, how compliance of this requirement would be
ensured, is not made normative and thus, a lot of
subjectivity galores. This is not a happy thing. In matters
like this, diminution of discretion is ideal, lest its abuse
should happen. Therefore, the government should evolve
a set of norms even in this regard, after speaking to the
experts. Otherwise, inevitably, one has to accept the
version of the Search cum Selection Committee which may
put the ritualistic compliance in glorious language and the
ascertainment of its truthfulness becomes difficult, when
challenge is laid. Much is not necessary to specify.
(f) There is yet another lacuna in the freshly issued
Guidelines dated 31.08.2023. Paragraph 10 of the
ANNEXURE provides for ex officio assumption of the office
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of Chairman by the Addl. Chief Secretary to or the
Principal Secretary of the Forest, Ecology and Environment
Department, when vacancy occurs and that his tenure as
such shall continue till a new Chairman duly nominated by
the State Government enters upon the office. However,
paragraph 11 gives a wide discretion to the government
for not filling the 'casual vacancy' by way of nomination
and this it can do without assigning any reason. Such a
carte blanche is undesirable, to say the least, 'reasoned
decisions' being the requirement of a Welfare State.
Therefore, the term 'without assigning any reason'
appearing in paragraph 11 cannot be sustained. Further,
the expression 'for reasons to be recorded in writing'
needs to be introduced in the stead. We emphasize that
the 'casual vacancy', whatever be the reason for its
accrual, in the office of the Chairman of KSPCB shall not
be occupied by the functionaries mentioned in clauses 10
& 11 for a period beyond six months and therefore, the
normative appointment by way of selection has to be
made without brooking delay. Accordingly, the said two
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paragraphs need to be rephrased by the State
Government.
(VII). AS TO W.P.No.19569/2023 &
W.P.No.23417/2023:
(1) In both these petitions, Petitioner happens to be
the present incumbent of the office of the Chairman of
KSPCB. In W.P.No.19569/2023, as was filed originally, a
prayer is made inter alia for the quashment of the enquiry
initiated against him in respect of certain allegations as to
breach of provisions of the Karnataka Transparency in
Public Procurements Act, 1999 and the Rules promulgated
thereunder. We are told at the Bar that this enquiry
proceeding having been concluded, a report has already
been submitted to the Government in a sealed cover. At
this stage, we are not inclined to grant indulgence in the
matter to the extent that the challenge is to the initiation
of enquiry proceedings inasmuch as the Petitioner will
have an opportunity of offering his views on the enquiry
report; further, he can also lay a challenge to any adverse
order that may be passed on the basis of the report, of
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course after considering his version thereto. Thus, the
challenge to the enquiry is premature and therefore, no
relief in that regard can be granted.
(2) The above being said, we note the amendment
made to the Writ Petition with leave of this court whereby
challenge is laid to the Notification issued by the
Government and Corrigendum issued by the Principal
Secretary to the Government, both dated 31.08.2023
which have the effect of curtailing the tenure of
Petitioner's appointment to 04.03.2022, with retrospective
effect, when it ought to be up to 14.11.2024. The
amended petition has been filed on 27.09.2023 with the
leave of court. He has also filed W.P.No.23417/2023 for
laying a challenge to the communication dated 10.10.2023
issued by the Secretary of KSPCB whereby the Petitioner
has been excluded from the State Level Enforcement
Committee meeting, because of the curtailment of his
tenure. It was the vehement submission of learned Sr.
Advocate appearing for the Petitioner that the very
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Notification of appointment dated 15.11.2021 was for a
period of three years; the said appointment was not for
the remainder of the term of the earlier incumbent; the
selection and appointment was for the full term and
therefore, the same cannot be curtailed merely because a
rival political party has come to power after fighting the
General Elections to the State Assembly successfully. The
Statement of Objections have been filed resisting the Writ
Petitions.
(3) Learned Advocate General appearing for the
State contended that the appointment of the Petitioner as
the Chairman was for the remainder of the tenure of the
office because of the 'casual vacancy' that arose after his
predecessor vacated the office; however, the Notification
dated 15.11.2021 whereby this Petitioner was nominated
as the Chairman, had by mistake specified 14.11.2024 as
the date till which he would have the tenure; therefore,
the Corrigendum followed by the Notification both dated
31.08.2023, have been rightly issued. He repels the
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contention of malafide, both legal & factual. He drew our
attention to section 5(6) of the 1974 Act and section 21 of
the Karnataka General Clauses Act, 1899 in support of this
stand. Other contesting respondents too made their
submission.
(4) Let us examine the rival contentions advanced
at the Bar. Section 5 of the 1974 Act speaks of terms &
conditions of service of members of KSPCB. Sub-sections
(1) & (6) of this provision which are relevant to the case at
hands have the following text:
"(1) Save as otherwise provided by or
under this Act, a member of a Board, other than
a member-secretary, shall hold office for a term
of three years from the date of his nomination:
Provided that a member shall,
notwithstanding the expiration of his term,
continue to hold office until his successor enters
upon his office."
(6) A casual vacancy in a Board shall be
filled by a fresh nomination and the person
nominated to fill the vacancy shall hold office
only for the remainder of the term for which the
member in whose place he was nominated."
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In view of these sub-sections, a question arises whether
the subject selection & appointment are qua the 'casual
vacancy' or otherwise. If the appointment was made to fill
the casual vacancy as such, much discussion was not
warranted, the Parliamentary intention enacted in sub-
section (6) is as clear as gangetic waters. Such an
appointment would indisputably be for the remainder of
the term. However, if the appointment is intended and
made in usual course, it would be altogether a different
scenario. This needs to be ascertained by adverting to a
host of factors that had entered the fray of selection that
culminated into appointment.
(5) Under the statutory Scheme, the appointment
to the post of Chairman is by way of nomination preceded
by selection to be undertaken by the Search cum Selection
Committee headed by the Chief Minister. The Public Notice
dated 21.07.2020 was issued in two news dailies calling
for applications for the post of Chairman. It is pertinent to
reproduce one of them:
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"Government of Karnataka
Forest, Ecology and Environment Department
(Ecology & Environment)
Room No. 704, 7th Floor, 4th Gate, M.S. Building, Bengaluru- 560001.
No. FEE 143 EPC 2020 Date : 21.07.2020
PUBLIC NOTICE
Subject: Nomination for the post of Chairman to Karnataka State
Pollution Control Board under the Water (Prevention and
Control of Pollution) Act, 1974 (6 of 1974) Inviting
applications -reg.
1. Applications are invited from eligible candidates for nomination to the
post of Chairman, Karnataka State Pollution Control Board (KSPCB),
Bengaluru in the prescribed format.
2. The KSPCB was established under provisions of the Water
(Prevention and Control of Pollution) Act, 1974. The KSPCB exercises
functions related to prevention and control of pollution. The Chairman
shall be a full-time incumbent.
3: The following are the terms and conditions for the post of Chairman,
KSPCB, Bengaluru:
1. The salary and The salary and other emoluments of the Chairman
other shall be as per the orders of the other Department of
emoluments Public Enterprises, Government of Karnataka issued
from time to time.
2. Method of Nomination
recruitment
3. Terms and The Chairman will be Governed by the Terms and
conditions conditions as prescribed in the Water (Prevention
and Control of Pollution) Act, 1974, rules made there
under, guidelines issued by the State Government
vide Government order No FEE. 230 EPC 2017
dated 19.06.2020 read with the corrigendum
dated:21.07.2020 and the terms and conditions to be
issued by the State Government from time to time.
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4. a) Qualification A Master's degree in Environment Science or a
& Experience Master's Degree in Environment Engineering or an
equivalent degree or allied sciences from a
recognized University or institute and has knowledge
and experience in areas related to environmental
protection or has been a part of administration in a
Government Department or Organization or
University or Institute dealing with environmental
issues (including issues of air and water pollution,
waste management, natural resources management
and environmental impact assessment)
b)Desirable Special knowledge or practical experience in respect
qualification of matters relating to environmental protection or
knowledge and experience in an institution dealing
with the matters aforesaid.
5. Age limit The maximum age limit for nomination of chairman
shall be, not exceeding 62 years as on the last date
for the receipt of applications.
4. The details of the application format are available on the website of
the Forest, Ecology and Environment.
Department https://forest.karnataka.gov.in/ and Karnataka State
Pollution Control Board, http://kspcb.gov.in/.
5. Interested and eligible candidates are requested to send their
applications (in 4 sets) in the format prescribed, so as to reach by 6th
August 2020 before 5.30 PM at the following address
Shri Muralidhar S. Tallikeri,
Under Secretary to Govt (Ecology & Environment)
Forest, Ecology and Environment Department,"
The above Public Notice mentions 1974 Act and obviously
no specific provision thereof is quoted. To any reasonable
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aspirant to the post, it gives a legitimate impression that
the selection to be followed by appointment was not for
filling the 'casual vacancy' but it was for vacancy. That
itself figures as a factor with the candidates in deciding
whether to stake claim for appointment or not. This is on
the line of the doctrine of legitimate expectation.
(6) Secondly, the Search cum Selection Committee
comprises of high functionaries of the Executive: Chief
Minister is the Chairman ex officio and Minister for Forest,
Ecology and Environment happens to be the Vice
Chairman ex officio. The Committee held its deliberation
on 11.09.2020. There were as many as 106 applications
of which 17 were found ineligible for want of requisite
educational qualification; five applicants were age barred
and four applications were time barred. Thus, eighty
applications availed for consideration. After due
deliberation a short list containing seven names was
prepared and the name of Petitioner figured at the top.
Therefore, he came to be selected after assigning reasons.
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(7) The relevant part of the selection proceedings
reads as under:
"After detailed deliberation, the
Committee decided to select Dr. Shanth
Avverahalli Thimmaiah, E-516, Naidile
Residency, Gottigere, Bannerghatta Road,
Bengaluru - 560083 for the following reasons:
He has secured the highest points in the
evaluation i.e., 71.9; possesses the requisite
qualifications i.e., Post Graduate degree in
Industrial Pollution Control from a reputed
institution, NITK, Surathkal and he has got a
Ph.D. in Socio-economic and Environmental
Impact Studies which is a relevant field for
environment. He stands out amongst the
candidates considered as he possesses special
knowledge and practical experience in
maximum areas in respect of matters relating
to environmental pollution and has work
experience in the following fields.
1) Sustainable mining, Environment
Management Plan, Reclamation and
Rehabilitation of mines.
2) Control/mitigation related to air, water
and noise pollution.
3) Preparation of disaster management
plan
4) Environment Impact Assessment.
5) Management and standard operating
procedure for laboratories.
6) Preparation of "Carrying Capacity
Study" report.
7) Coastal Zone Management studies.
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Further, it was noted that he has administrative
experience, as a Board member of an
institution of repute dealing with environmental
issues including issues of air and water
pollution, waste management, natural resource
management and environment impact
assessment. Finally, the Committee was of the
opinion that he has got the sense of vision and
expertise to implement various laws relating to
pollution control.
In view of the above facts and
circumstance, the Committee decided to
nominate Dr. Shanth Avverahalli Thimmaiah as
the Chairman, Karnataka State Pollution
Control Board."
It is notable that a reading of the entire selection
proceedings nowhere suggests that the exercise was
undertaken for filling the 'casual vacancy'. One can safely
assume that it was for filling the regular vacancy.
(8) After selection, the Notification dated
15.11.2021 nominating the Petitioner as the Chairman of
the KSPCB came to be issued. The same in the vernacular
reads as under:
"PÀ£ÁðlPÀ ¸ÀPÁðgÀ
¸ÀASÉå:C¥Àfà 143 E¦¹ 2020 PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ
§ºÀĪÀĺÀrUÀ¼À PÀlÖqÀ,
¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:15.11.2021
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D¢ü¸ÀÆZÀ£É
qÁ|| ±ÁAvÀ CªÉéÃgÀºÀ½î wªÀÄäAiÀÄå E-516, £ÉÊ¢¯É gɹqɤì,
UÉÆnÖUÉgÉ, §£ÉßÃgÀÄWÀlÖ gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ - 560 083 EªÀgÀ£ÀÄß
d® (ªÀiÁ°£Àå ¤ªÁgÀuÉ ªÀÄvÀÄÛ ¤AiÀÄAvÀæt) PÁAiÉÄÝ 1974gÀ
C£ÀÄZÉÑÃzÀ 4(2) gÀ£ÀéAiÀÄ vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ ªÀÄvÀÄÛ
ªÀÄÄA¢£À DzÉñÀªÀgÉUÉ ºÁUÀÆ UÀjµÀ× ªÀÄÆgÀÄ ªÀµÀðUÀ¼À CªÀ¢üUÉ
CAzÀgÉ ¢£ÁAPÀ:14.11.2024 gÀªÀgÉUÉ PÀ£ÁðlPÀ gÁdå ¤AiÀÄAvÀæt
ªÀÄAqÀ½AiÀÄÄ CzsÀåPÀëgÀ£ÁßV £ÁªÀÄ ¤zÉÃð±À£À ªÀiÁr
DzÉò¸À¯ÁVzÉ.
F £ÁªÀÄ ¤zÉÃð±À£ÀªÀÅ ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ jmï
Cfð ¸ÀASÉå:9500/201, 9526/2020, 8883/2020, 9923/2020,
9897/2021 ºÁUÀÆ 15179/2021 gÀ°è ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀĪÀÅ
¤ÃqÀĪÀ CAw ªÀÄ wæðUÉ M¼À¥ÀnÖgÀÄvÀÛzÉ.
F £ÁªÀÄ ¤zÉÃð±À£ÀPÉÌ ¸ÀA§A¢ü¹zÀ µÀgÀvÀÄÛ ªÀÄvÀÄÛ
¤§AzsÀ£ÉUÀ¼À DzÉñÀªÀ£ÀÄß ¥ÀævÉåÃPÀªÁV ºÉÆgÀr¸À¯ÁUÀĪÀÅzÀÄ.
PÀ£ÁðlPÀ gÁdå¥Á®gÀ DzÉñÁ£ÀĸÁgÀ
ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è
(ªÀÄÄgÀ½ÃzsÀgÀ J¸ï vÀ½îPÉÃj)
¸ÀPÁðgÀzÀ D¢üãÀ PÁAiÀÄðzÀ²ð,
(fë¥Àj¹Üw ªÀÄvÀÄÛ ¥Àj¸ÀgÀ)
CgÀtå fë¥Àj¹Üw ªÀÄvÀÄÛ ¥Àj¸ÀgÀ E¯ÁSÉ."
What is significant to note is that this Notification mentions
only section 4(2) of the 1974 Act and that section 5(6) is
conspicuously absent. Ordinarily, one need not be swayed
away by the mentioning, non-mentioning or wrong
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mentioning of the statute or its provisions in such
instruments. What one has to see is their substance and
not the form. This Notification specifically states that the
appointment is 'until further orders' and for a maximum
period of three years. Very notably, it mentions
14.11.2024 as the date up to which the appointee shall
hold the office. It also refers to the companion Writ
Petitions and makes the appointment subject to their
outcome, is beside the point.
(9) We have also perused the text of earlier
Notifications dated 18.9.2012, 21.12.2015 & 5.3.2019
which specifically mention the full tenure of three years.
Their linguistic content accords with that of Notification
dated 15.11.2021. In contrast, the Notifications making
appointment to fill the 'casual vacancy' specifically
mention section 5(6) of the 1974 Act and refer to
remainder of the period; added, the expression 'for a
period of three years' is conspicuously absent in all of
them. These Notifications are dated 20.06.2019,
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21.09.2019 & 30.12.2019. Had it been the intent of the
government that Petitioner was being appointed to the
'casual vacancy', the same would have been expressly or
implicitly stated in the Public Notice, in the proceedings of
the Search cum Selection Committee or at least in the
Notification appointing him as the Chairman of KSPCB.
(10) The contention of learned Advocate General
that the mistake had crept in mentioning 14.11.2024 in
the appointment notification, when it ought to have been
4.3.2022, is bit difficult to countenance. We are not sure
that section 21 of the 1899 Act was invocable. That
provision is not mentioned in the impugned Corrigendum
and the Notification, both dated 31.08.2023. How all of a
sudden, this 'mistake' was discovered, by whom and
when, remain enigmatic. After General Elections to the
Legislative Assembly in May 2023, a 'registered &
recognized National Political Party' that was in Opposition
earlier, returned to power, is a matter of public record.
Within three months or so, the impugned Corrigendum
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followed by the Notification, both dated 31.08.2023 have
been issued. No opportunity of hearing was provided to
the present incumbent of the office nor any explanation for
not affording the same, is forthcoming from the pleadings
of the State. The rule of continuity of government is
recognized by our Constitution. A political party comes to
power and goes, yielding place to the new, periodic
elections being a basic feature of our constitutional polity
vide INDIRA NEHRU GANDHI vs. RAJ NARAIN, AIR
1975 SC 2299. That transition does not disrupt the rule of
continuity. This is not to say that there would be no scope
for rectification of the mistake allegedly committed by the
party in power earlier. But such a mistake needs to be
demonstrated and its correction should be shown to have
been accomplished by following due process of law.
Otherwise, it gives scope for the allegation of legal
malafide, if not factual.
(11) There is yet another aspect to the matter.
Learned Advocate General is right in contending that sub-
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section (6) of section 5 of the 1974 Act provides for the
appointment to the 'casual vacancy' only for the remainder
of the term of the earlier incumbent. The said provision
reads as under:
"A casual vacancy in a Board shall be filled by a
fresh nomination and the person nominated to fill
the vacancy shall hold office only for the
remainder of the term for which the member in
whose place he was nominated."
A literal interpretation of this provision at the first blush
gives an impression that it is mandatory. However, merely
because a statute employs the word 'shall', one cannot
readily jump to such a conclusion. Had this provision
employed a negative terminology such as 'No appointment
to fill the casual vacancy would be for the full term of
three years' or the like, we would have appreciated the
ingenious argument of learned AG. We notice such a
terminology in sub-section (2) of section 6 which reads as
under:
"No order of removal shall be made by the
Central Government or the State Government,
as the case may be, under this section unless
the member concerned has been given a
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reasonable opportunity of showing cause
against the same."
Such a negative terminology, we notice in other provisions
of 1974 Act, e.g., section 11, etc. We hasten to add that,
our view should not be construed that even an
appointment made to the 'casual vacancy' would be for the
full term i.e., three years; indisputably, such an
appointment would enure for the remainder of the tenure.
What we are mentioning is about the choice of the
government to go for the appointment to fill the 'casual
vacancy' or to fill the 'regular vacancy', even when the
'casual vacancy' avails. The text & context of section 5(6)
does not exclude such a construction. All this strengthens
our assumption that the selection & appointment of the
Petitioner Dr. Shanth A. Thimmaiah was not to the 'casual
vacancy' and therefore, the impugned Corrigendum and
the Notification that are inarticulately premised on the
'casual vacancy', are unsustainable and therefore, liable to
be voided.
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In the above circumstances, we dispose off all these
petitions with the following directions:
ORDER
[i] A Writ of Mandamus issues to the respondent-
State Government to reframe Clauses 7, 10 & 11 in the
ANNEXURE to the Government Order No.FEE 230 EPC
2017 Bengaluru, Dated:31.08.2023, in terms of our
observations at Paragraph (VI) of this judgement and
report compliance to the Registrar General of the court,
within an outer limit of three months.
[ii] The challenge to the selection, nomination and
appointment of Dr.Shanth A. Thimmaiah as the Chairman
of the KSPCB pursuant to Notification No.FEE 143 EPC
2020 dated 15.11.2021, is liable to be and accordingly,
rejected.
[iii] The challenge by the petitioner Dr.Shanth A.
Thimmaiah to the Corrigendum E.No.FEE 143 EPC 2020
dated 31.08.2023 and Government Order No.FEE 143 EPC
2020 dated 31.08.2023 is favoured and a Writ of Certiorari
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issues quashing the same. As a consequence, his tenure
as the Chairman of the KSPCB is secured till 14.11.2024.
[iv] Petitioner Dr.Shanth A. Thimmaiah's challenge
to the communication No.AAPAJI/169/EPC/2023 dated
26.07.2023 whereby, enquiry is initiated against him for
the alleged lapses, being devoid of merits, is liable to be
and accordingly, dismissed. As a consequence, the said
enquiry shall be accomplished in accordance with law.
Costs made easy.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Snb/cbc,
