Dr. Ghanashyam Sharma vs State Of Sikkim And Ors
2022 Latest Caselaw 71 Sikkim

         THE HIGH COURT OF SIKKIM : GANGTOK
                           (Civil Extraordinary Jurisdiction)
                         DATED : 30th September, 2022
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 SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                                     WP(C) No.26 of 2020
            Petitioner               :       Dr. Ghanashyam Sharma

                                                         versus
            Respondents              :       State of Sikkim and Others

     Application under Article 226 of the Constitution of India
    --------------------------------------------------------------------------------------
     Appearance
          Mr. Zangpo Sherpa, Advocate with Ms. Lusiyana Thapa, Advocate
          for the Petitioner.

          Mr. Sudesh Joshi, Additional Advocate General with Mr. Sujan
          Sunwar, Assistant Government Advocate for the Respondents
          No.1 to 3.

          Mr. A. Moulik, Senior Advocate with Ms. K. D. Bhutia and Mr.
          Ranjit Prasad, Advocates for the Respondent No.4.
    --------------------------------------------------------------------------------------
                               JUDGMENT

Meenakshi Madan Rai, J.

1(i). The Petitioner assails the appointment of the

Respondent No.4 as Chairperson of the State Pollution Control

Board (hereinafter, "the Board"), vide Notification No.27/Home/

2020, dated 17-04-2020, on grounds that the Committee which

conducted the interview was per se illegal being in violation of Rule

12 of the Sikkim Water (Prevention and Control of Pollution)

Amendment Rules, 2017 (hereinafter, "2017 Rules"). The prayers

being pressed in the instant Writ Petition are for issuance of an

Order/declaration that the Selection Committee constituted for

selection of the Chairperson by the interview dated 15-03-2020 is

illegal and to issue an Order quashing the Notification dated 17-04-

2020, as obtains in prayers „d‟ and „e‟ of the Writ Petition.

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

(ii) The Petitioner‟s case briefly, is that, the Respondent

Nos.1 and 2 constituted the Board as per the mandate of the Water

(Prevention and Control of Pollution) Act, 1974 (hereinafter, "1974

Act") and the Sikkim Water (Prevention and Control of Pollution)

Rules, 1991 (hereinafter, "1991 Rules") of which, since inception

the Chairperson and Members were nominated by the Respondent

No.2. Departing from established procedure, on 04-06-2019 the

Respondent No.2 issued an advertisement for the post of

Chairperson of the said Board. Six applicants including the

Petitioner and the Respondent No.4 applied and participated in the

interview which was held on 15-03-2020 conducted by a Selection

Committee comprising of the Chief Secretary, Government of

Sikkim; the Principal Chief Conservator-cum-Principal Secretary,

Forest, Environment and Wildlife Management Department; a

Professor of the Indian Institute of Science, Bangalore and the

Special Secretary, Department of Personnel (for short, "DOP"),

Government of Sikkim. The Respondent No.4 was selected.

Aggrieved thereof, the Petitioner approached the State Information

Officer in the Office of the Chief Secretary, Government of Sikkim,

under the Right to Information Act, 2005. On receipt of incomplete

information from the said Office, the Petitioner was before the

Appellate Authority, from where he learnt from the documents

supplied to him that as per Rule 12 of the Sikkim Water

(Prevention and Control of Pollution) Amendment Rules, 2016

(hereinafter, "2016 Rules"), the Chairperson and the Member

Secretary were to be appointed by a Committee, to be chaired by

the Chairperson of the Sikkim Public Service Commission and was

to comprise of; the Chief Secretary; the Secretary, Forests,

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

Environment and Wildlife Management Department and the

Secretary, DOP as also a National Expert of Environment

Protection, to be nominated by the State Government. By an

amendment to the Rules vide Notification dated 30-10-2017 the

Committee was to be chaired by the Chief Secretary with the

Secretary, Forest, Environment and Wildlife Management

Department; the Secretary, DOP and a National Expert on

Environment Protection nominated by the State Government as

Members. That, in the teeth of the mandate of Rule 12 of the 2017

Rules, the Selection Committee constituted for the interview held

on 15-03-2020 comprised inter alia of the Special Secretary, DOP,

hence the prayers inter alia in the Petition as reflected

hereinabove.

2. Learned Counsel for the Petitioner advancing his

arguments contended that the presence of the Special Secretary,

DOP as a Member of the Committee, instead of the Secretary, DOP

as mandated by the Rules, has created a legal infirmity in the

constitution of the Selection Committee, which cannot be cured.

That, the constitution of the Committee is required to follow the

Statute and the appointment of the Respondent No.4 having been

made on the basis of a non est Committee, is liable to be quashed.

That, the 2016 Rules and 2017 Rules were inserted as per the

directions of the National Green Tribunal in its Judgment dated 24-

08-20161 making it incumbent upon the Respondent Nos.1, 2 and 3

to abide by it. That, the principle of estoppel is not applicable in

the instant matter, as the Petitioner was unaware of the

composition of the Committee on the day of interview. Reliance

Rajendra Singh Bhandari vs. State of Uttarakhand and Others : 2016 SCC OnLine NGT 456

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

was placed on Dr. (Major) Meeta Sahai vs. State of Bihar and Others2

which ratio has been reiterated in Krishna Rai (Dead) through Lrs and

Others vs. Banaras Hindu University through Registrar and Others3.

To fortify his submission that the requirement of a Statute has to

be fulfilled, strength was drawn from Competent Authority vs.

Barangore Jute Factory and Others . It was urged that the Executive

cannot override a Statute, towards which reliance was placed on

Dr. Raghavendra H.K. vs. State of Karnataka and Others5. Reiterating

that the appointment based on the recommendation of an illegal

Committee ought to be set aside, strength was drawn from the

ratio in Dr. Triloki Nath Singh vs. Dr. Bhagwan Din Misra and Others6.

Hence, it was prayed that the offending Notification be quashed

and the Selection Committee declared illegal.

3. Vehemently refuting the arguments put forth by the

Petitioner, Learned Additional Advocate General appearing for the

Respondents Nos.1, 2 and 3 submitted that the question would be

whether the Selection Committee would be illegal merely by virtue

of the Special Secretary being part of the Committee, considering

that she was an equally qualified Officer along with other Members

of the Committee and thereby eligible to be a part of the

Committee. It was next urged that assuming such infirmity

occurred it can be cured by disregarding the marks allotted by the

Special Secretary to all the candidates and collating only the marks

given by the other Members. That, the result in any event would

not see any alteration as the Respondent No.4 had obtained the

(2019) 20 SCC 17

2022 SCC OnLine SC 750

(2005) 13 SCC 477

2021 SCC OnLine Kar 264

(1990) 4 SCC 510

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

highest marks. That apart, the Rules do not specify any Quorum

for the Committee, consequently the Special Secretary could well

be included or excluded from the Committee towards which

reliance was placed on Shri Ishwar Chandra vs. Shri Satyanarain Sinha

and Others . Besides as held in Dr. (Major) Meeta Sahai (supra) the

Petitioner having participated in the interview is estopped from

assailing the process of the interview. It was next urged that the

advertisement for the post impugned was issued on 04-06-2019,

the interview was held on 15-03-2020, the appointment order

issued on 17-04-2020. When the Petitioner appeared for the

interview he did not object to the presence of the Special

Secretary. On 30-04-2020, post the appointment order of

Respondent No.4, the Petitioner made a representation to the

Hon‟ble Chief Minister and on the same day he also filed an

application under the Right to Information Act which reveals that

he was not only disgruntled with his failure but was also aware of

the amendments made to the Rules and the constitution of the

Panel. To fortify the submissions the ratio in Madras Institute of

Development Studies and Another vs. K. Sivasubramaniyan and Others8

was relied upon. That, the time line of the matter is also to be

taken into consideration from the date of interview till the filing of

the Writ Petition rendering the Petitioner guilty of delay and laches,

hence the Petition deserves a dismissal.

4. Learned Senior Counsel for the Respondent No.4

contended that the power to make Rules have not been delegated

to the State Government under Section 64 of the 1974 Act which

has been erroneously invoked by the State Government when

(1972) 3 SCC 383

(2016) 1 SCC 454

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

framing the Rules for appointment of a Chairman, when Section 4

of the 1974 Act provides for the composition of the State Board

and that the Chairman is to be nominated by the State

Government. Section 64 of the 1974 Act from where the State

Government allegedly derives its Rule making powers provides that

simultaneously with the constitution of the State Board, the State

Government may make rules to carry out the purposes of the Act.

That, nowhere does Section 64 provide for recruitment of a

Chairman of the Board by a Selection Committee. That,

consequently constitution of the Selection Committee is illegal as it

is not a Statutory Committee. That, in light of the foregoing

circumstance the question of the Special Secretary not being

qualified to be in the Selection Committee is superfluous. Attention

of this Court was also drawn to the fact that on 15-03-2020, the

date of interview, the then Secretary, DOP, having already retired

on 01-12-2019 in his absence the Special Secretary being as

qualified was even placed in charge of the Department as Secretary

from 23-11-2019 to 05-12-2019. That, in the alternative, it was

put forth that in view of the impugned Notification dated 17-04-

2020 having been issued by the Respondent No.1, it is to be

assumed that the Respondent No.4 was "nominated" by the

Government. Learned Senior Counsel also placed reliance on Dr.

(Major) Meeta Sahai (supra) to bolster his submissions. It was

further contended that as the Petitioner had participated in the

interview despite knowledge of the constitution of the Committee

which he cannot assail post the appointment of Respondent No.4

towards which reliance was placed on Madras Institute of

Development Studies (supra). While endorsing the submissions of

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

Learned Additional Advocate General it was reiterated by Learned

Senior Counsel that even if the presence of the Special Secretary in

the Committee is ignored, Respondent No.4 would still have

obtained the highest marks. That, in Ishwar Chandra (supra) the

Supreme Court has held that if there is no Rule on constitution of

the Quorum then the majority Members would form the Quorum,

thereby ruling out illegality in the absence of any Member. That,

the Petitioner alleges that the Selection Committee Members were

known to the Respondent No.4, if so, he ought to have assailed the

constitution of the Committee prior to the interview and not after

his failure. Drawing succour from the ratio in Dr. G. Sarana vs.

University of Lucknow and Others it was contended that bias cannot

be pleaded upon failure to be selected. Hence, the Petition be

dismissed.

5. Having considered the submissions of Learned Counsel

for the parties, perused the pleadings and documents appended

thereto, what falls for consideration of this Court is whether the

selection of the Respondent No.4 is illegal in view of the

composition of the Selection Committee. Addressing first the

argument of Learned Senior Counsel for the Petitioner that the

provisions of Section 64 of the 1974 Act have been wrongly

invoked, it may be remarked here that no averments in this

context were put forth by the Respondent No.4 in his Return.

During the course of arguments, Learned Senior Counsel was of

the view that the point pertaining to Section 64 was a legal point

and hence required no mention in the averments. Relevant

reference on this facet may be made to State of Madhya Pradesh vs.

(1976) 3 SCC 585

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

Narmada Bachao Andolan and Another wherein the Supreme Court

elucidated as follows;

"10. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties.

11. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice.

....................................." [emphasis supplied]

Hence, the arguments advanced by Learned Senior Counsel

with regard to the erroneous invocation of Section 64 deserves no

consideration by this Court for the reasons set out by the Hon‟ble

Supreme Court in the ratio supra.

6(i). Now turning to the question of constitution of the

Selection Committee even assuming that the Committee was

erroneously constituted would it per se conclude then that the

selection would be invalid? In this context, we may consider that

as per Rule 12 of the 1991 Rules, as amended in 2017, the

Selection Committee was to comprise of; the Chief Secretary; the

Secretary, Forests, Environment and Wildlife Management

Department and the Secretary, DOP as also a National Expert of

Environment Protection, to be nominated by the State

Government. The Secretary, DOP had already demitted Office on

(2011) 7 SCC 639

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

01-12-2019 thus on the date of interview, i.e., 15-03-2020, the

Special Secretary, DOP was made a part of the Selection

Committee. Indeed, she may have been qualified for the purpose

but surely the Rule did not envisage her presence and she could

not have assumed the powers of the Secretary, DOP. There is no

provision for relaxation in the Rules permitting the Special

Secretary to represent the Secretary, DOP nor was an advance

Circular issued in this context to enable the participants to be

aware of the position. Two situations arise out of this viz.; whether

estoppel would apply to the Petitioner and whether the provision of

the Rules (unchallenged as they were) could be overruled by

executive action sans any written order. In this context, the

observation of the Hon‟ble Supreme Court in Competent Authority

(supra) is relevant wherein it was held as follows;

"5. ............................................ ....... It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. .........."

(ii) On the same lines, in Babu Verghese and Others vs. Bar

Council of Kerala and Others it was propounded as follows;

"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [AIR 1936 PC 253] who stated as under:

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322] and again in Deep Chand v. State of

(1999) 3 SCC 422

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

Rajasthan [AIR 1961 SC 1527]. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [AIR 1964 SC 358] and the rule laid down in Nazir Ahmad case [(1936) 63 IA 372] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."

In P. K. Ramachandra Iyer and Others vs. Union of India and

Others referred to by the Supreme Court in Krishna Rai (supra) it

was observed as follows;

"44. ............................ By necessary inference, there was no such power in the ASRB to add to the required qualifications If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. ............................."

Further in the case of Tata Chemicals Limited vs. Commissioner

of Customs (preventive), Jamnagar , it has been laid down that

there can be no estoppel against law. If the law requires something

to be done in a particular manner, then it must be done in that

manner, and if it is not done in that manner, then it would have no

existence in the eye of the law. Consequently, it is ostensible that

the constitution of the Committee is to adhere strictly to the Rules.

(iii) The Quorum was not specified which is a correct

submission, in such a circumstance the selection Committee could

well have comprised only of the Secretaries to the various

Departments prescribed by the Rules exclusive of the Special

Secretary, DOP. The majority Members being present would have

comprised the Quorum as held by the Hon‟ble Supreme Court in

Ishwar Chandra (supra) wherein it has been observed as follows;

"10. ....................... In such circumstance, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid

(1984) 2 SCC 141

(2015) 11 628

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

meeting and matters considered thereat cannot be held to be invalid."

It is apparent from a bare reading of the extract supra that

the Quorum comprising of the majority of the Members could not

be considered invalid. In the case at hand, the argument advanced

by the Petitioner has no concern with the majority of the Members

of the Committee, but the fact that a Member who was to comprise

a part of the Committee had demitted Office and the Special

Secretary, DOP, appropriated his position. The Rules do not

mandate such a Quorum. Had the Special Secretary not deigned it

her place to fill up the place of the Secretary, DOP the question of

illegality of the Committee would not have arisen. There was in

fact no necessity of including the Special Secretary in the Selection

Committee dehors the Rules and sans any provision for relaxation

or any order having been issued to that effect. In view of this

circumstance, overlooking the marks awarded by the Special

Secretary to the Respondent No.4 as submitted by Learned

Additional Advocate General and Learned Senior Counsel is not the

panacea for the ill.

(iv) The contention of the Respondents that the Petitioner is

estopped from assailing the selection process and the constitution

of the Committee holds no water as the Petitioner was not aware at

the time of the interview that the Special Secretary, DOP was

representing the Secretary, DOP dehors the Rules. The Petitioner

cannot be foisted with knowledge of the composition of the

Committee with no documentary evidence to establish that he was

apprised of the circumstances or that he was aware of the identity

of the Special Secretary, DOP. The ratiocination on Madras Institute

of Development Studies (supra) cited by Learned Additional Advocate

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

General is to no avail, as the facts therein are clearly

distinguishable from the matter in dispute. The ratio supra

pertains to appointment of Associate Processors by a Committee

constituted for the purpose of selection which consisted of eminent

Scientists, Professor of Economic Studies and Planning and the

Members. The Selection Committee was found to be competent to

select an Associate Professor. In the matter at hand, the Selection

Committee as specified by the Rule was to comprise of certain

officials which was flagrantly flouted at the time of interview.

(v) In Dr. (Major) Meeta Sahai (supra) the Hon‟ble Supreme

Court has inequivocally pronounced that it is well-settled that the

principle of estoppel prevents a candidate from challenging the

selection process after having failed in it, however it was clarified

therein that insofar as the candidate by agreeing to participate in

the selection process only accepts the prescribed procedure and

not the illegality. This pronouncement squarely fits the facts and

circumstances of the case at hand so far as constitution of the

Committee dehors the Rules is concerned.

7. So far as the legality of the appointment of Respondent

No.4 is concerned the Constitution Bench of the Hon‟ble Supreme

Court in Secretary, State of Karnataka and Others vs. Umadevi (3) and

Others , at Paragraph 53, has in no uncertain terms differentiated

between illegal appointment and irregular appointment which for

brevity is not being extracted herein. It needs no reiteration that

the Hon‟ble Supreme Court in Government of Andhra Pradesh and

Others vs. K. Brahmanandam and Others15 inter alia observed that

appointments made in violation of the mandatory provisions of a

(2006) 4 SCC 1

(2008) 5 SCC 241

Dr. Ghanashyam Sharma vs. State of Sikkim and Others

Statute would be illegal and thus void. That, illegality cannot be

ratified and illegality cannot be regularized, only an irregularity can

be. The argument of Learned Senior Counsel that the

appointment of Respondent No.4 could in fact be considered as a

nomination as provided by Section 4 of the Act to my mind is

incongruous the very basis of the order being steeped in illegality

considering that it was the outcome of a Committee illegally

constituted.

8. Indeed, the time line of the matter reveals that the

advertisement was issued on 04-06-2019, the interview conducted

as 15-03-2020 and the appointment order issued on 17-04-2020.

The Writ Petition was filed on 11-08-2020. The fact that the world

was reeling under the effects of the COVID-19 Pandemic can in no

way be overlooked. Hence, in my considered opinion, the delay is

not extraordinary to propel the matter out of Court.

9. In light of the foregoing discussions, it inevitably falls

to reason that the selection and appointment of the Respondent

No.4 has been done in contravention to the Rules, hence

Notification No.27/Home/2020, dated 17-04-2020, is quashed and

set aside as the selection Committee constituted for the interview

suffers from a legal infirmity.

10. The Writ Petition stands disposed of accordingly.

11. No order as to costs.

( Meenakshi Madan Rai ) Judge 30-09-2022

Approved for reporting : Yes ds