National Green Tribunal- Tribunal was perturbed and anguished that some persons appointed to the State Pollution Control Boards (for short ‘SPCBs’) did not have, according to the NGT, the necessary expertise or qualifications to be members or chairpersons of such high powered and specialized statutory bodies and therefore did not deserve their appointment or nomination. While we fully commiserate with the NGT and share the pain and anguish, we are of the view that the Tribunal has, at law, exceeded its jurisdiction in directing the State Governments to reconsider the appointments and in laying down guidelines for appointment to the SPCBs, however well-meaning they might be. Therefore, we set aside the decision of the NGT, but note that a large number of disconcerting facts have been brought out in the judgment which need serious consideration by those in authority, particularly the State Governments that make appointments or nominations to the SPCBs. Such appointments should not be made casually or without due application of mind considering the duties, functions and responsibilities of the SPCBs.= We make it clear that it is left open to public spirited individuals to move the appropriate High Court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as a Chairperson or a member of any SPCB or is presently continuing as such.

C.A. Nos. 1359/2017 etc. etc. Page 1 of 34
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1359 OF 2017
Techi Tagi Tara …Appellant
versus
Rajendra Singh Bhandari & Ors. …Respondents
WITH
C.A. No. 1360/2017, C.A. No. 2481/2017 , C.A. No. 526/2017,
C.A. No. 1561/2017 , C.A. No. 4917/2017, C.A. No. 4936/2017,
C.A. No. 5735/2017, C.A. Nos. 8377-8378/2017, C.A. No.
10471/2017, C.A. No. 9498/2017 and C.A. Nos. 10472-
10473/2017
J U D G M E N T
Madan B. Lokur, J.
1. This batch of appeals is directed against the judgment and order
dated 24th August, 2016 passed by the National Green Tribunal, Principal
Bench, New Delhi (for short ‘the NGT’) in Original Application No. 318
of 2013.1
On a reading of the judgment and order passed by the NGT, it
1
Rajendra Singh Bhandari v. State of Uttarakhand and others
C.A. Nos. 1359/2017 etc. etc. Page 2 of 34
is quite clear that the Tribunal was perturbed and anguished that some
persons appointed to the State Pollution Control Boards (for short
‘SPCBs’) did not have, according to the NGT, the necessary expertise or
qualifications to be members or chairpersons of such high powered and
specialized statutory bodies and therefore did not deserve their
appointment or nomination. While we fully commiserate with the NGT
and share the pain and anguish, we are of the view that the Tribunal has,
at law, exceeded its jurisdiction in directing the State Governments to
reconsider the appointments and in laying down guidelines for
appointment to the SPCBs, however well-meaning they might be.
Therefore, we set aside the decision of the NGT, but note that a large
number of disconcerting facts have been brought out in the judgment
which need serious consideration by those in authority, particularly the
State Governments that make appointments or nominations to the SPCBs.
Such appointments should not be made casually or without due
application of mind considering the duties, functions and responsibilities
of the SPCBs.
2. Why is it important to be more than careful in making such
appointments? There can be no doubt that the protection and preservation
C.A. Nos. 1359/2017 etc. etc. Page 3 of 34
of the environment is extremely vital for all of us and unless this
responsibility is taken very seriously, particularly by the State
Governments and the SPCBs, we are inviting trouble that will have
adverse consequences for future generations. Issues of sustainable
development, public trust and intergenerational equity are not mere catch
words, but are concepts of great importance in environmental
jurisprudence. Perhaps appreciating and anticipating this, Article 48A
was introduced in the Constitution and this Article reads as follows:
“Protection and improvement of environment and
safeguarding of forests and wild life - The State shall
endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country.”
Similarly Article 51A (g) of the Constitution indicates the fundamental
duties of every citizen of the country, one of them being to protect and
improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures.2
It is quite clear that
apart from the natural law obligation to protect and preserve the
environment, there is also a constitutional obligation to do so.
Unfortunately, despite this, our society has been witnessing over the last
2
51A. Fundamental duties.—It shall be the duty of every citizen of India—
(a) to (f) xxx xxx xxx
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures;
(h) to (k) xxx xxx xxx
C.A. Nos. 1359/2017 etc. etc. Page 4 of 34
few decades, to repeated onslaughts against the environment, sometimes
in the name of development and sometimes because our society just does
not seem to care. In this context we may also mention Article 21 of the
Constitution which has been given a very wide amplitude by several
decisions of this Court, including on issues concerning the environment.
The judgment of the NGT draws attention to some of these aspects but
essentially points to the ‘who-cares’ attitude adopted by several State
Governments. It is this attitude that compelled a public spirited
environmentally conscious individual to challenge the composition of the
SPCB in the State of Uttarakhand and consequently the necessity of
being extra careful in making appointments to the SPCB.
3. One of the principal attributes of good governance is the
establishment of viable institutions comprising professionally competent
persons and the strengthening of such institutions so that the duties and
responsibilities conferred on them are performed with dedication and
sincerity in public interest. This is applicable not only to administrative
bodies but more so to statutory authorities – more so, because statutory
authorities are the creation of a law made by a competent legislature,
representing the will of the people.
4. State Pollution Control Boards (or SPCBs) constituted under the
C.A. Nos. 1359/2017 etc. etc. Page 5 of 34
provisions of the Water (Prevention and Control of Pollution) Act, 1974
and the Air (Prevention and Control of Pollution) Act, 19813
fall in this
category but many of them possess only a few or sometimes none of the
above attributes of good governance and again a few or none of them are
adequately empowered. This is a serious problem haunting the SPCBs
for at least two decades (if not more).
5. The composition of the SPCB is provided for in Section 4(2) of the
Water Act and this reads as follows (Section 5(2) of the Air Act is
similar):
“4(2) A State Board shall consist of the following members,
namely:-
(a) a chairman, being a person having special knowledge
or practical experience in respect of 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:
Provided that the chairman may be either wholetime
or part-time as the State Government may think
fit;
(b) such number of officials, not exceeding five, to be
nominated by the State Government to represent that
Government;
3
Henceforth the Water Act and the Air Act
C.A. Nos. 1359/2017 etc. etc. Page 6 of 34
(c) such number of persons, not exceeding five, to be
nominated by the State Government from amongst the
members of the local authorities functioning within the
State;
(d) such number of non-officials, not exceeding three, to
be nominated by the State Government to represent the
interests of agriculture, fishery or industry or trade or
any other interest which, in the opinion of the State
Government, ought to be represented;
(e) two persons to represent the companies or
corporations owned, controlled or managed by the
State Government, to be nominated by that
Government;
(f) A full-time member-secretary, possessing
qualifications, knowledge and experience of scientific,
engineering or management aspects of pollution
control, to be appointed by the State Government.”
6. One of the earliest communications on our record encouraging
professionalism in the SPCBs with a view to empowering them is a letter
of 26th September, 1997 addressed by the Secretary in the Ministry of
Environment and Forest (MoEF) of the Government of India to the Chief
Secretary of every State highlighting the importance of the SPCBs, the
fact that their activities are science and technology based and the necessity
of taking relevant factors into consideration while making appointments to
the SPCBs. The letter reads as follows:
C.A. Nos. 1359/2017 etc. etc. Page 7 of 34
“Secretary
Ministry of Environment & Forests
Government of India
September 26, 1997
D.O. No. PS/Secy (E&F)/CPCB/97
Dear
The State Pollution Control Boards/Pollution Control
Committees in Union Territories have been assigned an
important role for prevention and control of pollution from
different sources. In recent years, additional responsibilities have
been assigned to them for enforcement of various statutes.
Hence, these organizations need to be suitably strengthened so
that they can cope up with the tasks. In fact, the Hon’ble
Supreme Court has also had occasion to observe on the
unsatisfactory performance of State Boards in discharging their
functions.
The activities of the Pollution Control Boards/Pollution Control
Committees are essentially science and technology based. The
Chairman and Member Secretaries are the key functionaries of
the Boards/Committees who are expected to have requisites
professional knowledge and experience for providing effective
leadership to their organizations. Under the Water (Prevention
and Control of Pollution) Act, 1974 and the Air (Prevention and
Control of Pollution) Act, 1981 the specific requirements for
appointment to these posts have been laid down.
However, in some State Boards/Committees, the appointments to
these posts are made without due consideration to such
requirements as envisaged under the Acts. Also, another major
problem being faced by these organizations is on account of
frequent changes of Chairmen and Member Secretaries. I request
you to kindly ensure that appropriate persons are appointed for
these key positions and they are not frequently changed. Where
the incumbents do not have the prescribed criteria they should be
replaced.
C.A. Nos. 1359/2017 etc. etc. Page 8 of 34
It is requested that this issue may kindly receive your personal
attention on a top priority basis.
With regards
Yours sincerely,
Sd/-
(Vishwanath Anand)”
7. More importantly and perhaps keeping the diverse nature of
activities of the SPCBs in mind, a conference was held in Coimbatore on
29th and 30th January, 2001 of the Ministers of Environment and Forests of
the State Governments. The conference recommended, inter alia, the
induction of academicians, professionals, experts and technologists for the
effective functioning of the SPCBs. As a follow-up to the
recommendations, a letter was addressed by the Secretary in the MoEF to
the Chief Secretary of every State on 3rd July, 2001. This letter reads as
follows:
“P.V. Jayakrishnan
Secretary
D.O. No. PS/Secy (E&F)/CPCB/2001
July 3, 2001
Dear
In the National Conference of Ministries of Environment
and Forests held at Coimbatore on January 29-30, 2001, several
important recommendations were made regarding effective
functioning of the State Pollution Control Boards/ Committees.
These include the following:
C.A. Nos. 1359/2017 etc. etc. Page 9 of 34
(i) Induction of academicians, legal professionals,
health experts and technologists as members of the
Boards/Committees.
(ii) Appointment of multi-disciplinary staff
(iii) Ban on recruitment shall be relaxed for the posts of
scientists and engineers in the Pollution Control
Boards/Committees.
(iv) Training of personnel, for which programme shall
be drawn up by the Central Pollution Control
Board.
(v) Streamlining of Consent/Authorization procedures.
(vi) Inventorization of polluting sources and pollution
load.
(vii) Formulation of Annual Action Plans.
(viii) Publication of annual State Environment Report.
(ix) Strengthening and upgrading of water and air
quality monitoring and laboratory facilities.
We had taken up the matter with the respective State Pollution
Control Boards/Committees. Since most of the action points
require intervention of the State Governments, I request you
kindly to take necessary action for implementation of the
recommendations.
I look forward to your response at the earliest.
With regards.
Yours Sincerely,
Sd/-
(P.V. Jayakrishnan)
To Chief Secretaries of all States/UTs”
8. These communications seem to have had little or no impact at least
in one instance as is evident from a reading of a decision of the
Jharkhand High Court dated 15th May, 2002 in Binay Kumar Sinha v.
State of Jharkhand4
concerning the Chairperson of the SPCB of that
4
(2002) 50 BLJR 2223
C.A. Nos. 1359/2017 etc. etc. Page 10 of 34
State. The High Court was compelled to make the following scathing and
unfortunate observations:
“4. On 4th April 2002, when the Chairman appeared before us
and we started talking to him in order to elicit his views and
opinion on the aforesaid questions, what we found has been aptly
and clearly recorded in our order of that day. The extracts read
thus:--"Shri Thakur Bal Mukund Nath Shahdeo, Chairman, State
Pollution Control Board has appeared before us today in person.
During the course of our conversation with him, we found (to our
total horror, surprise, dismay and amazement) that he does not
know anything at all about any aspect relating to pollution, or the
control of pollution. In course of our extensive conversation with
him, we found that the only academic qualification that he boasts
of is 'matriculation'. He has no other academic or technical
qualification whatsoever. When, by referring to Section 5(2)(a)
of the Air (Prevention & Control of Pollution) Act, 1981, we
asked him whether he has any special knowledge or any practical
experience in respect of any matter relating to the environmental
pollution, his answer was in the negative. We must record that
during the course of our conversation with Sri Shahdeo, we were
constantly helped and assisted by Mr. Poddar, learned Addl.
Advocate General. We actually impressed upon Mr. Poddar the
need of assisting Sri Shahdeo in answering our questions. Mr.
Poddar very kindly lent his helping hand to us. What emerged
was that Mr. Shahdeo has neither any general or special
knowledge, nor any academic qualification, nor any experience
whatsoever that may have anything to do with any matter or any
aspect relating to the pollution, air pollution, water pollution,
noise pollution, or any other pollution of any kind. What to speak
of his-having special knowledge or practical experience, he has
neither any knowledge, general or special, nor any experience,
practical or otherwise with respect to any matters relating to
environmental pollution. We repeatedly asked him to inform us
about one single such fact by which he could lay his claim to
hold this office. He failed to inform us of even a single fact
C.A. Nos. 1359/2017 etc. etc. Page 11 of 34
which could qualify him to hold this office. His only claim was
that he is a politico-social worker. We asked him also as to how
he came to be appointed on this post. He says that he made an
application to Mrs. Neelam Nath, Secretary, Forests, we asked
him whether such an application was invited from him. He says
that the application was invited from him. We asked him whether
invitation was extended to him personally by Mrs. Neelam Nath
or did it appear in any advertisement. He says that he, on his
own, gave such an application and that it was neither invited
personally from him nor through any advertisement. Prima facie,
it appears to us that a person who does not have the requisite
qualification, experience, or knowledge has been appointed on
the post of Chairman, Pollution Control Board. Before we
proceed any further, we would like Mr. Poddar, learned A.A.G.
to produce before us the original records of the Govt. relating to
the appointment of Mr. Shahdeo."
5. It was from this point onwards that a case arose within a case.
Both the issues started being dealt with simultaneously by us,
namely, the issue relating to Sundera Mineral & Chemical
Industry and the propriety, legality and validity of the
appointment of Mr. Shahdeo.”
A little later in the judgment it was held:
“41. Looked at from the aforesaid legal perspective and in view
of our clear findings that Shri Shahdeo did not possess the
qualifications required of the Chairman, State Pollution Control
Board, we have no hesitation, but to hold that it would be a
violation of the law to allow him to continue as the Chairman of
the State Board. We accordingly order and declare that the
appointment of Shri Shahdeo as Chairman, State Board, was not
legal and valid and hence improperly made and therefore, on
these grounds we order and direct that he cannot continue to
function as such. By issuance of a writ of quo-warranto,
therefore, the appointment of Shri Shahdeo as Chairman, State
Board, is quashed and set aside. Shri Shahdeo shall forthwith and
with immediate effect cease to hold the office of Chairman, State
C.A. Nos. 1359/2017 etc. etc. Page 12 of 34
Board. The post of Chairman, State Board is hereby declared to
be vacant, and with immediate effect.”
9. Notwithstanding the above decision, communications and orders,
the State Governments continued to display disinterest in the matter of
professional appointments to the SPCBs. This led to another
communication from the MoEF on 16th August, 2005 (which still did not
have the desired effect) and this communication reads as follows:
“Supreme Court Matter
Most Immediate
By Speed Post
No. 23-8/2004-HSMD (Vol.II)
Government of India
Ministry of Environment & Forests
(Supreme Court Monitoring Committee)
Room No, 927, Paryavaran Bhawan
C.G.O. Complex, Lodhi Road
New Delhi-110003 108
Dated 16th August, 2005
To,
The Chief Secretaries of all States/UTs
(As per the list enclosed)
Sub: Constitution of the State Pollution Control Board/Pollution
Control Committees (SPCBs PCCs) - regarding
Dear Sir,
The Supreme Court by its order dated 14-10-2003 in the Writ
Petition (Civil) No. 657/1995 set up a Monitoring Committee to
ensure time-bound implementation of various directions given in
C.A. Nos. 1359/2017 etc. etc. Page 13 of 34
the said order.5
The committee has been visiting several States to
monitor the status of implementation of these directions.
During its interaction with various pollution control officials, the
Supreme Court Monitoring Committee (SCMC) has noticed that
the State Pollution Control Board (SPCBs), Pollution Control
Committee (PCCs) of UTs were not constituted in accordance
with the provisions given in the Water Act, 1994 and the Air Act,
1981.
Chairperson of the Board :-
3. The statutory provisions require that Chairpersons appointed
shall be persons having “special knowledge or practical
experience in respect of matters relating to environmental
protection or a person having knowledge and experience in
administering institutions dealing with the matter aforesaid”
4. The SCMC has found that in the several cases, the Chief
Secretaries, Environment Secretaries, politicians, MLAs, literary
persons and non-technical persons have been appointed as
Chairperson of SPCBs/PCCs.
5. The MGK Menon Committee had recommended in its report
that “The Chairman of the Pollution Control Boards &
Committees should be individuals with a sense of vision and a
feeling for the future. They must have an understanding of the
complexity of modern science and technology since they will be
dealing with highly technical issue. They must have an
understanding of law. The chairperson would have to be fully
involved in the task of environment construction and planning
appointment of the Chairperson of the Board should be on full
time basis.
Member Secretary of the Board:-
6. Similarly, in respect of the post of Member Secretary the
statutory provisions (Water Act) require that he be full-time,
possessing qualifications, knowledge and experience of
scientific, engineering or management aspects of pollution
control.
5
Research Foundation for Science v. Union of India
C.A. Nos. 1359/2017 etc. etc. Page 14 of 34
7. In relation to appointment of Member Secretaries, the Menon
Committee has recommended that: “The incumbent should
possess a post-graduate degree in science, engineering or
technology, and have adequate experience of working in the area
of environment protection”.
8. The SCMC has found that in several States, persons from IFS
or from the PWD especially from the PHE departments, are
either being appointed or deputed to the post of Member
Secretary without the necessary statutory qualifications.
Members:-
9. No effort is being made to appoint persons with adequate
scientific, technical or legal background from the environmental
field as members of the Board. Board members are increasingly
being appointed for political purposes. This is leading to
ineffective and inefficient functioning of SPCBs/PCCs.
10. Though the Boards are to function as statutory bodies under
the Air Act, 1981, no specialists in air pollution (as required by
the Air Act, 1981) are being appointed as members. This is a
serious lacuna in constitution of the Boards.
11. During its visits to various States to monitor implementation
of the order dated 14.10.2003, the SCMC has observed that the
order of the Supreme Court being efficiently carried out in States
that have competent Chairperson or Member Secretaries. In other
States, due to lack of proper attention at the highest level,
implementation is found to be tardy and without much progress.
12. The SCMC discussed these issues at its meeting held on 28-
03-2005 came to the firm conclusion that only technically
qualified professionals should be appointed to the critical
positions of Chairperson, Member Secretary and Members of the
Pollution Control Boards so that their functioning can be
strengthened as required in terms of paragraph - 41.1 of the
Supreme Court’s order dated 14.10.2003.
13. The committee is also of the view that recommendations of
the MGK Menon Committee be fully respected and the
Chairperson should be appointed on full-time basis. Without the
C.A. Nos. 1359/2017 etc. etc. Page 15 of 34
officers it is not possible for any Board to function effectively in
view of the numerous laws and statutes that demand efficient and
effective actions from State Pollution Control Boards.
14. We draw your kind attention to several reports on
strengthening of State Pollution Control Boards. These include:
1) The Bhattacharia Committee, 1984
2) The Belliappa Committee, 1990
3) The ASCI Study, 1994
4) Study of the Sub Group, 1994
15. All these studies were considered during the Evaluation
Study on “Function of the Pollution Control Board” prepared by
the Programme Evaluation Organization of the Planning
Commission.
16. The Planning Commission report concluded: “Considering
the interesting technicalities involved in the functions to be
performed by these Boards, it is essential that technical persons
possessing scientific knowledge about matters relating to
pollution and pollution control hold the upper hand”.
17. The conference of Ministers of Environment that took place
in Coimbatore also reiterated at the highest political level, the
decision that the SPCBs should be headed and staffed by
technically competent professionals (and not by journalists or
politicians or administrative officers).
18. The composition of the Boards is therefore under the scrutiny
of the SCMC and no further appointment of Chairpersons or
Member Secretaries should be carried out which do not meet the
norms given in the statute and elucidated by the Menon
Committee.
19. In view of the above, you are requested to inform this
monitoring Committee regarding the qualifications of the
Chairperson, Member Secretary and Members of the Pollution
Control Board, Pollution Control Committee in your State/ Union
Territory. Based on the information, the committee will examine
whether the persons nominated to these positions meet the
C.A. Nos. 1359/2017 etc. etc. Page 16 of 34
statutory norms and the requirements as indicated in the MGK
Menon Committee Report and the Order of the Supreme Court
dated 14.10.2003 and further necessary action will be taken in
the matter.
20. This matter may kindly be given the highest consideration
and a reply in this regard may be provided to the undersigned
within 4 weeks so that the same will be considered in the next
SCMC meeting. It will be highly appreciated, if a copy of the
information may also be sent through email.
Yours faithfully
Sd/-
(Dr. G. Thyagarajan)
Chairman,
Supreme Court Monitoring Committee
Telefax: 011-24361410
Email: drgarajan @yahoo.co.in”
10. There are a few other communications on the same subject but it is
not necessary to detail their contents. All that need be said is that the
Central Government, time and again, requested the State Governments to
appoint persons who could add value and stature to the SPCBs by their
very presence and then utilize their expertise in preserving and protecting
the environment, including air and water.
11. As far as the State of Uttarakhand is concerned, it has come on
record that no rules (let alone recruitment rules) have been framed by the
State under the Water Act and the Air Act even though the State was
formed several years ago. Rules framed by the State of Uttar Pradesh
C.A. Nos. 1359/2017 etc. etc. Page 17 of 34
notified in 1984 have been adopted by Uttarakhand but there has
apparently been no fresh application of mind to these Rules or even
consideration of the possibly somewhat different conditions in
Uttarakhand. There seems to be a mechanical and bodily lifting of the
Uttar Pradesh Rules. Apart from the above, it has also come on record
that meetings of the SPCB are required to be held once in three months
but as far as the State of Uttarakhand is concerned, only 15 meetings
were held during the period from 2001 (when the Board was constituted)
over the next 12 years. There is therefore nonchalance shown by
Uttarakhand to the rule making power and the provisions of Section 8 of
the Water Act and Section 10 of the Air Act6
relating to holding meetings
of the SPCB.
12. To make matter worse, despite this Court passing an order on 8th
January, 2008 (in IA No.4/2007 in SLP (Civil) No.6023/2006) directing
6
Section 8 of the Water Act: 8. Meetings of Board.—A Board shall meet at least once in every three
months and shall observe such rules of procedure in regard to the transaction of business at its
meetings as may be prescribed:
Provided that if, in the opinion of the chairman, any business of an urgent nature is to be transacted,
he may convene a meeting of the Board at such time as he thinks fit for the aforesaid purpose.
Section 10 of the Air Act: 10. Meetings of Board.—(1) For the purposes of this Act, a Board shall meet
at least once in every three months and shall observe such rules of procedure in regard to the
transaction of business at its meetings as may be prescribed:
Provided that if, in the opinion of the Chairman, any business of an urgent nature is to be transacted,
he may convene a meeting of the Board at such time as he thinks fit for the aforesaid purpose.
(2) Copies of the minutes of the meetings under sub-section (1) shall be forwarded to the Central
Board and to the State Government concerned.
C.A. Nos. 1359/2017 etc. etc. Page 18 of 34
the State of Uttarakhand and the SPCB to consider the desirability of
making rules laying down essential qualifications and experience and
other relevant factors for appointment of members in the SPCB7
, we are
told that unfortunately, such rules have not been made and the impugned
order under appeal indicates that the matter has remained under
consideration of the State Government since 2006.
13. Keeping all these facts and the recalcitrance of the State
Governments in mind, the NGT examined the expertise and
qualifications of members of the SPCB of almost all States and prima
facie found that about ten States and one Union Territory had members in
the SPCB who lacked the qualifications suggested by the Central
Government.
14. At this stage, it must be mentioned that apart from the Central
Government, there are several authorities that have applied their mind to
the issue of appointment of members of the SPCBs. These include
Expert Committees such as the Bhattacharya Committee of 1984, the
7
“I.A. No. 4/2007 be treated as an original petition to be listed along with SLP (C) No. 6023/2006.
Learned counsel for the State of Uttaranchal and Uttarakhand Environment Protection and Pollution
Control Board shall find out the desirability of having Rules governing the essential qualifications and
experience and such relevant factors for the appointment of various officials in the Board. They shall
also indicate their stand as regards certain NOCs stated to have been issued to pharmaceutical
manufacturers.
Call after eight weeks.”
IA No.4/2007 was converted to W.P. (Civil) No.85/2008 which was listed along with SLP (Civil)
No.6023/2006
C.A. Nos. 1359/2017 etc. etc. Page 19 of 34
Belliappa Committee of 1990, the Administrative Staff College of India
Study of 1994 and a Committee chaired by Prof. M.G.K. Menon.
Notwithstanding this, the response of the State Governments in
appointing professionals and experts to the SPCBs has been remarkably
casual. It is this chalta hai attitude that led the NGT to direct the State
Governments to consider examining the appointment of the Chairperson
and members in the SPCBs and determining whether their appointment
deserves continuation or cancellation. Thereafter the NGT gave several
guidelines that ought to be followed in making appointments to the
SPCBs.
15. The objection of the appellants is to: (i) the exercise of jurisdiction
by the NGT in directing the State Governments to reconsider the
appointment of the Chairperson and members of the SPCBs; and (ii)
laying down guidelines for appointment of the Chairperson and members
of the SPCBs.
16. As regard the first grievance, it is contended that the appointment
or removal of members of the SPCBs does not lie within the statutory
jurisdiction of the NGT. Our attention has been drawn to some provisions
of the National Green Tribunal Act, 2010 (for short ‘the Act’). The
C.A. Nos. 1359/2017 etc. etc. Page 20 of 34
jurisdiction of the NGT is circumscribed by Section 14 of the Act which
reads as follows:
“14. Tribunal to settle disputes.—(1) The Tribunal shall
have the jurisdiction over all civil cases where a substantial
question relating to environment (including enforcement of
any legal right relating to environment), is involved and such
question arises out of the implementation of the enactments
specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the
questions referred to in sub-section (1) and settle such
disputes and pass order thereon.
(3) No application for adjudication of dispute under this
section shall be entertained by the Tribunal unless it is made
within a period of six months from the date on which the
cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the
application within the said period, allow it to be filed within a
further period not exceeding sixty days.”
This provision cannot be read in isolation but must be read in conjunction
with Section 15 of the Act which relates to relief, compensation and
restitution as being broadly the directions that can be issued by the NGT.
Section 15 of the Act reads as follows:
“15. Relief, compensation and restitution.—
(1) The Tribunal may, by an order, provide,—
(a) relief and compensation to the victims of pollution and
other environmental damage arising under the enactments
specified in the Schedule I (including accident occurring
while handling any hazardous substance);
(b) for restitution of property damaged;
C.A. Nos. 1359/2017 etc. etc. Page 21 of 34
(c) for restitution of the environment for such area or areas, as
the Tribunal may think fit.
(2) The relief and compensation and restitution of property
and environment referred to in clauses (a), (b) and (c) of subsection
(1) shall be in addition to the relief paid or payable
under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or
restitution of property or environment under this section shall
be entertained by the Tribunal unless it is made within a
period of five years from the date on which the cause for such
compensation or relief first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the
application within the said period, allow it to be filed within a
further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public
health, property and environment, divide the compensation or
relief payable under separate heads specified in Schedule II so
as to provide compensation or relief to the claimants and for
restitution of the damaged property or environment, as it may
think fit.
(5) Every claimant of the compensation or relief under this
Act shall intimate to the Tribunal about the application filed
to, or, as the case may be, compensation or relief received
from, any other court or authority.”
Finally, it is important to refer to Section 2(m) of the Act which reads:
“(m) “substantial question relating to environment” shall
include an instance where,—
(i) there is a direct violation of a specific statutory
environmental obligation by a person by which,—
(A) the community at large other than an individual
or group of individuals is affected or likely to be
affected by the environmental consequences; or
(B) the gravity of damage to the environment or
property is substantial; or
C.A. Nos. 1359/2017 etc. etc. Page 22 of 34
(C) the damage to public health is broadly
measurable;
(ii) the environmental consequences relate to a specific
activity or a point source of pollution;”
17. On a combined reading of all these provisions, it is clear to us that
there must be a substantial question relating to the environment and that
question must arise in a dispute – it should not be an academic question.
There must also be a claimant raising that dispute which dispute is
capable of settlement by the NGT by the grant of some relief which could
be in the nature of compensation or restitution of property damaged or
restitution of the environment and any other incidental or ancillary relief
connected therewith.
18. The appointment of the Chairperson and members of the SPCBs
cannot be classified in any circumstance as a substantial question relating
to the environment. At best it could be a substantial question relating to
their appointment. Moreover, their appointment is not a dispute as one
would normally understand it. In Prabhakar v. Joint Director,
Sericulture Department8
the following ‘definition’ of dispute was noted
in paragraphs 34 and 35 of the Report:
8
(2015) 15 SCC 1
C.A. Nos. 1359/2017 etc. etc. Page 23 of 34
“34. To understand the meaning of the word “dispute”, it would
be appropriate to start with the grammatical or dictionary
meaning of the term:
“‘Dispute’.—to argue about, to contend for, to oppose by
argument, to call in question — to argue or debate (with, about or
over) — a contest with words; an argument; a debate; a quarrel;”
35. Black’s Law Dictionary, 5th Edn., p. 424 defines “dispute”
as under:
“Dispute.—A conflict or controversy; a conflict of claims or
rights; an assertion of a right, claim, or demand on one side, met
by contrary claims or allegations on the other. The subject of
litigation; the matter for which a suit is brought and upon which
issue is joined, and in relation to which jurors are called and
witnesses examined.”
19. As far as we are concerned, in the context of the Act, a dispute
would be the assertion of a right or an interest or a claim met by contrary
claims on the other side. In other words, the dispute must be one of
substance and not of form and it appears to us that the appointments that
we are concerned with are not ‘disputes’ as such or even disputes for the
purposes of the Act – they could be disputes for a constitutional court to
resolve through a writ of quo warranto, but certainly not for the NGT to
venture into. The failure of the State Government to appoint professional
and experienced persons to key positions in the SPCBs or the failure to
appoint any person at all might incidentally result in an ineffective
implementation of the Water Act and the Air Act, but this cannot be
classified as a primary dispute over which the NGT would have
C.A. Nos. 1359/2017 etc. etc. Page 24 of 34
jurisdiction. Such a failure might be of a statutory obligation over which,
in the present context and not universally, only a constitutional court
would have jurisdiction and not a statutory body like the NGT. While we
appreciate the anxiety of the NGT to preserve and protect the
environment as a part of its statutory functions, we cannot extend these
concepts to the extent of enabling the NGT to consider who should be
appointed as a Chairperson or a member of any SPCB or who should not
be so appointed.
20. Additionally, no relief as postulated by Section 15 of the Act could
be granted to a claimant, assuming that a substantial question relating to
the environment does arise and that a dispute does exist.
21. It appears to us that the NGT realized its limitations in this regard
and therefore issued a direction to the State Governments to reconsider
the appointments already been made, but the seminal issue is really
whether the NGT could at all have entertained a claim of the nature that
was raised. For reasons given above, the answer must be in the negative
and it would have been more appropriate for the NGT to have required
the claimant to approach a constitutional court for the relief prayed for in
the original application. To this extent therefore, the direction given by
the NGT must be set aside as being without jurisdiction. However, we
C.A. Nos. 1359/2017 etc. etc. Page 25 of 34
have been told that some States have implemented the order of the NGT
and removed some members while others have approached this Court and
obtained an interim stay order. Those officials who were removed
pursuant to the order of the NGT (including the appellant Techi Tagi
Tara) have an independent cause of action and we leave it open to them
to challenge their removal in appropriate and independent proceedings.
This is an issue between the removed official and the State Government -
the removal is not a public interest issue and we cannot reverse the
situation.
22. On the second grievance relating to the issue of guidelines by the
NGT, the meat of the matter concerns the appointment of officials who
are experts in their field and are otherwise professional. This is for each
State Government to consider and decide what is the right thing to do
under the circumstances – should an unqualified or inexperienced person
be appointed or should the SPCB be a representative but expert body?
The Water Act and the Air Act as well as the Constitution give ample
guidance in this regard. We have already adverted to the provisions of the
Constitution including Article 48A, Article 51A(g) and Article 21 of the
Constitution. So, the entire scheme of the various provisions of the
Constitution adverted to above, including the principles that have been
C.A. Nos. 1359/2017 etc. etc. Page 26 of 34
accepted and adopted internationally as well as by this Court such as the
principles of sustainable development, public trust and intergenerational
equity are a clear indication that in matters relating to the protection and
preservation of the environment (through the appointment of officials to
the SPCBs) the Central Government as well as the State Governments
have to walk the extra mile. Unfortunately, many of the State
Governments have not even taken the first step in that direction – hence
the present problem.
23. While it is beyond the jurisdiction of the NGT and also beyond our
jurisdiction to lay down specific rules and guidelines for recruitment of
the Chairperson and members of the SPCBs, we are of opinion that there
should be considerable deliberation before an appointment is made and
only the best should be appointed to the SPCB. It is necessary in this
regard for the Executive to consider and frame appropriate rules for the
appointment of such persons who would add lustre and value to the
SPCB. In this connection we refer to the State of Punjab v. Salil
Sabhlok9
in which it was observed with reference to appointments to the
Public Service Commission that besides express restrictions in a statute
or the Constitution, there can be implied restrictions in a statute or the
9
(2013) 5 SCC 1
C.A. Nos. 1359/2017 etc. etc. Page 27 of 34
Constitution and the statutory or constitutional authority cannot, in
breach of such implied restrictions, exercise its discretionary power. In
our opinion this would be equally applicable to an appointment to a
statutory body such as the SPCB - the State Government does not have
unlimited discretion or power to appoint anybody that it chooses to do.
24. It was also held in Salil Sabhlok (supra) that the deliberative
process and institutional requirements are of considerable importance in
respect of any appointment that is made. In this context, the imperative
of good governance was highlighted and with regard to framing rules or
issuing guidelines, it was held as follows:
“In the light of the various decisions of this Court adverted to
above, the administrative and constitutional imperative can be
met only if the Government frames guidelines or parameters for
the appointment of the Chairperson and Members of the Punjab
Public Service Commission. That it has failed to do so does not
preclude this Court or any superior court from giving a direction
to the State Government to conduct the necessary exercise within
a specified period. Only because it is left to the State Legislature
to consider the desirability or otherwise of specifying the
qualifications or experience for the appointment of a person to
the position of Chairperson or Member of the Punjab Public
Service Commission, does not imply that this Court cannot direct
the executive to frame guidelines and set the parameters. This
Court can certainly issue appropriate directions in this regard,
and in the light of the experience gained over the last several
decades coupled with the views expressed by the Law
Commission, the Second Administrative Reform Commission
and the views expressed by this Court from time to time, it is
imperative for good governance and better administration to
issue directions to the executive to frame appropriate guidelines
and parameters based on the indicators mentioned by this Court.
C.A. Nos. 1359/2017 etc. etc. Page 28 of 34
These guidelines can and should be binding on the State of
Punjab till the State Legislature exercises its power.”
25. In Ashok Kumar Yadav v. State of Haryana10 this Court observed
that competent, honest, independent persons of outstanding ability and
high reputation who command the confidence of people and who would
not allow themselves to be deflected by any extraneous consideration
from discharging their duties should be appointed to Public Service
Commissions. Similarly, in In R/o Dr Ram Ashray Yadav11 it was held
that the credibility of an institution is founded upon the faith of the
common man in its proper functioning. The faith would be eroded and
confidence destroyed if it appears that the officials act subjectively and
not objectively or that their actions are suspect. In our opinion, these
conclusions of this Court would equally apply to professional and expert
statutory bodies such as the Central Pollution Control Board and the State
Pollution Control Boards.
26. Additionally, various committees have given sufficient guidelines
for the appointment of the Chairperson and members of the SPCBs. The
Bhattacharya Committee (1984) proposed that the structural
organization of SPCBs should consist of technical services, scientific
10 (1985) 4 SCC 417
11 (2000) 4 SCC 309
C.A. Nos. 1359/2017 etc. etc. Page 29 of 34
services, planning, legal services, administrative services, accounts,
training cell and research and development. The Committee, inter-alia,
called for (a) discouraging the flow of deputationists to the Boards, (b)
upgrading regional laboratories, (c) providing each Board with at least
one mobile laboratory, (d) creating a centralized training institute, (e)
providing, on priority, funds to establish air control activity, and (f)
bestowing the power to make posts at least up to the rank of
environmental engineers/scientists with the Boards.12
27. Similarly, the Belliappa Committee (1990) recommended (a)
introducing elaborate monitoring, reporting and organizational systems at
the national level along with four regional centres and one training cell in
each Board, (b) effecting suitable changes in the Boards recruitment
policy to enable them induct persons with suitable academic
qualifications, and (c) ensuring that the Chairman and Member-Secretary
are appointed for a minimum of three years.
28. The Administrative Staff College of India (1994) recommended,
inter alia, that (a) the SPCBs be reoriented for implementing the
instrument mix of legislation and regulation, fiscal incentives, voluntary
12 Final Report prepared by the Maharashtra Pollution Control Board in 2005 on Institutional Capacity
Building highlights the recommendations made by the Bhattacharya Committee, the Belliappa
Committee and the ASCI Study
C.A. Nos. 1359/2017 etc. etc. Page 30 of 34
agreements, information campaigns and educational programmes (b) an
Annual Environmental Quality Report be prepared by every SPCB for
the concerned State, (c) an inventory of discharges and effluents
disaggregated to the district level be prepared, (d) a research cell be
formed in each SPCB and a network be established with the proposed
clean technology centre and (f) model environmental impact assessments
be prepared for major categories of industries.
29. Finally, the Menon Committee13 made recommendations that are
a part of the communication of 16th August, 2005 referred to above. It
was also recommended that (a) in general, State Governments should not
interfere with recruitment policies of the SPCBs, especially where the
Boards are making efforts to equip their institutions with more and better
trained engineering and scientific staff, (b) the statutory independence
and functional autonomy given to the SPCBs should be protected and the
Boards should be kept free from political interference. The Boards should
be enabled to make independent decisions in this regard and (c) the
Chairperson of the SPCB should be a full-time appointee for a period of
five years and the Member-Secretary of the SPCB should also be
appointed for a period of five years.
13 Constituted pursuant to an order passed by this Court on 14th October, 2003 in Writ Petition (Civil)
No. 657/1995
C.A. Nos. 1359/2017 etc. etc. Page 31 of 34
30. All these suggestions and recommendations are more than enough
for making expert and professional appointments to the SPCBs being
geared towards establishing a professional body with multifarious tasks
intended to preserve and protect the environment and consisting of
experts. Any contrary view or compromise in the appointments would
render the exercise undertaken by all these committees completely
irrelevant and redundant. Surely, it cannot be said that the committees
were not constituted for the purpose of putting their recommendations in
the dustbin.
31. Unfortunately, notwithstanding all these suggestions,
recommendations and guidelines the SPCBs continue to be manned by
persons who do not necessarily have the necessary expertise or
professional experience to address the issues for which the SPCBs were
established by law. The Tata Institute of Social Sciences in a Report
published quite recently in 2013 titled “Environmental Regulatory
Authorities in India: An Assessment of State Pollution Control Boards”
had this to say about some of the appointments to the SPCBs:
“An analysis of data collected from State Pollution Control
Boards, however, gives a contrasting picture. It has been
observed that time and again across state governments have not
been able to choose a qualified, impartial, and politically neutral
person of high standing to this crucial regulatory post. The recent
C.A. Nos. 1359/2017 etc. etc. Page 32 of 34
appointments of chairpersons of various State Pollution Control
Boards like Karnataka (A a senior BJP leader), Himachal
Pradesh (B a Congress party leader and former MLA), Uttar
Pradesh (C appointed on the recommendation of SP leader X),
Arunachal Pradesh (D a sitting NCP party MLA), Manipur
Pollution Control Board (E a sitting MLA), Maharashtra
Pollution Control Board (F a former bureaucrat) are in blatant
violation of the apex court guidelines. The apex court has
recommended that the appointees should be qualified in the field
of environment or should have special knowledge of the subject.
It is unfortunate that in a democratic set up, key enterprises and
boards are headed by bureaucrats for over a decade. In this
connection, it is very important for State Governments to
understand that filling a key regulatory post with the primary
intention to reward an ex-official through his or her appointment
upon retirement, to a position for which he or she may not
possess the essential overall qualifications, does not do justice to
the people of their own states and also staffs working in the State
Pollution Control Boards. The primary lacuna with this kind of
appointment was that it did not evoke any trust in the people that
decisions taken by an ex-official of the State or a former political
leader, appointed to this regulatory post through what appeared
to be a totally non-transparent unilateral decision. Many senior
environmental scientists and other officers of various State
Pollution Control Boards have expressed their concern for
appointing bureaucrats and political leader as Chairpersons who
they feel not able to create a favourable atmosphere and an
effective work culture in the functioning of the board. It has also
been argued by various environmental groups that if the
government is unable to find a competent person, then it should
advertise the post, as has been done recently by states like
Odisha. However, State Governments have been defending their
decision to appoint bureaucrats to the post of Chairperson as they
believe that the vast experience of IAS officers in handling
responsibilities would be easy. Another major challenge has been
appointing people without having any knowledge in this field.
For example, the appointment of G with maximum qualification
of Class X as Chairperson of State Pollution Control Board of
Sikkim was clear violation of Water Pollution and Prevention
Act, 1974.”14
14 The names have been deliberately left out by us
C.A. Nos. 1359/2017 etc. etc. Page 33 of 34
32. 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 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
33. Keeping the above in mind, we are of the view that it would be
appropriate, while setting aside the judgment and order of the NGT, to direct
the Executive in all the States to frame appropriate guidelines or recruitment
rules within six months, considering the institutional requirements of the
SPCBs and the law laid down by statute, by this Court and as per the reports
of various committees and authorities and ensure that suitable professionals
and experts are appointed to the SPCBs. Any damage to the environment
could be permanent and irreversible or at least long-lasting. Unless
15 (2007) 6 SCC 586
C.A. Nos. 1359/2017 etc. etc. Page 34 of 34
corrective measures are taken at the earliest, the State Governments should
not be surprised if petitions are filed against the State for the issuance of a
writ of quo warranto in respect of the appointment of the Chairperson and
members of the SPCBs. We make it clear that it is left open to public
spirited individuals to move the appropriate High Court for the issuance of a
writ of quo warranto if any person who does not meet the statutory or
constitutional requirements is appointed as a Chairperson or a member of
any SPCB or is presently continuing as such.
34. The appeals are disposed of in light of the above discussion.
….……………………J
(Madan B. Lokur)
………………………..J
(Deepak Gupta)
New Delhi;
September 22, 2017