IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
{DATED THIS THE 2"" DAY OF JULY 2008

PRESENT

THE HON'BLE MR. CYRIAC JOSEPH, CHIEF J_I.,E:STI€'2?E--0: 5:  _

AND

THE HONBLE MRJUSTICE MOHAN sHA1§iTANAG0Um1§  3

WRIT APPEAL Nov,133/2006cs.as~<'£:§)Vfl_; j; V

BETWEEN:

1. State of Karnataka, _ J _ 2
Principal Secretary to Govemrnenfntt  _ .
Department of Forest; _EcoIogy'   3 ~ Vt

Environment, F1-:§o'r_, . I

Multistoeied  .  -- .  ' " 

BANGALORE -- 560 0'.0_%«1  M:

Reptci. By sfie.1;;rȢ.Sth;va1;u.{fi.ar,
_ Age: Mf'ajo;r,54 vearsif V' V"

2. % Saji
Age: Maj or  yeats,
_ . Secretary the Government,
i"--._VlV3'epaLrtrnent of Ecology and Environment,
   .E1':1o'03-, Multistoried Building,
- C'BA§I( 3r.AL0RE M 560001. ...Appenants

 4'   (By Sri S.Udaya Holla, Advocate General with Sri Basavaraj

 " Advocate for appellants)



AND:

1. Sri N.Boomanand Manay,
Aged about 75 years,
No.69, Surveyor Street,
Basavanagudi,
BANGALORE -- 560 004.   _
2. The Karnataka State Follution '
Control Board,
"Parisara Bhavana",  V»
No.49, 5th Floor, Church Street, 
BANGALORE .-- 560 001. l   V V
Represented by its Secremfl  A'   

... Respondents

(By Sri K.C.l\a§ittal 'lforl'Jeiyarama 85 Jayaram Associated for C/R1; Sri RaVvi.._ Vernrl1a' Vi{uxne1':', Senior Counsel for D.Nagaraj, Advocate for R2) having been heard and reserved for AAVCjudgmer1«t, o13'this'riay, the Court delivered the following: Notification dated 26.2.2004 issued by the Government of Karnataka. In Annexure-'A' notification, it was specifically stated that the nomination was under Section 4 of tlie"»Water (Prevention and Control of Pollution) Act, 1974 (for it was also stated that the nomination was "inH__l'pl.ace:_i.ofiSri; Alexander, the present Chairman." ltivviasiifurther-I the if terms and conditions of the appointment wou_l_di be notified separately. Subsequently the Govefr-nment'*--issued iiAinne>iure--'Bi' Notification dated 12.5.2004~..statin'g"thatiithep terimiiof appointment of the first respondent as shall be for a period of three yearsyviith the date on which Annexure--'A' "'ipssiued'or until further orders. In Annexure--'B--'.iipiifioitiiicatiorryp stated that the detailed terms issued separately. Thereafter Government issuedv order dated 14.7.2004 specifying _.the devtaiiledi'*terms"ainid____conditions of appointment of the first as*,iChapinnan of the Board. As per Annexure--C Goveyninent the term of appointment of the first respondent as Chairman iofithe Board shall be as specified in the notification .e1_.2.5i.i'.2(.)04 (i.e., Annexure~'B'). Thus cumulative effect of Anne:}<ures--'A', B' and 'C' was that the first respondent was .inon1inated/ appointed as Chairman of the Karnataka State éontrol Board with effect from 26.2.2004 for a period of three years or until further orders. It is also clear that the first respondent's appointment as Chairman of the Board was against a casual vacancy caused by the relinquishing of office bjfi.-""~~SI'i. J. Alexendar, the then Chairman of the Board.

4. According to Section 5(1) of the Act, _sHay:e~-.,as:.A_iotheri2vi«sei"=__ provided by or under the Act, a Memberiofia ..B'oarid,-- 'thgarfa it Member--Secretary, shall hold office_ for of 'rri¢'1~.a. the date of his nomination; Preyided 'a. shall,' notwithstanding the expiration of Cpntifiiie tojhold office until his successor enters to Section 2(c) of the Act, the eigpress-i.on the Chairman also. According to vacancy in the Board shall be filled iavfvreash.,nc.rni~nati_on and the person nominated to fill the vacancy'shallV.holid-ovffioeonly for the remainder of the term for which the rne'm.ber~ir'1 whose place he was nominated. It fs'p.evcifically pleaded by the respondents in the Writ Peititioni (A'pp"ellan'ts*:" herein) that Sri. J. Alexander had been VViVa_ppointed as Chairman of the Board on 28.12.2002 for a period of ypearsuosr until further orders, that he had taken charge on '28.12'.20.t)2, that his term of three years would have expired only C fl'o1:1_,2.?'%.12.2OOS and that the petitioner was appointed as Chairman 26.2.2004 in the place of Sri. J. Alexander. These averments 6 were not controverted by the Writ petitioner. Hence, it has to be accepted that the first respondent was appointed as Chairman of the Board in the casual vacancy caused ___by the relinquishment of office by Sri. J. Alexander and that by"'*9iperation of Section 5(6) of the Act, the first respondent was office only for the remainder of the termJfor_which' '_J.iiAle'xanrie'r' . L was appointed. Therefore in the normal course 'the. tenure-.__of::t_he first respondent would have ended 'on 2'7:'1.2.i2005{:ii'Bfd.t.,_in irievv the proviso to sub--section (1) of iinotvviithstanding the expiration of his term, office until his successor entered upon his C h C C

6. In the to the Government of Karnata.l<rayi_issued dated" i19.8.2004 requiring all the Chairmen DirectorslofiBoards/Corporations appointed by the Governrnentiiitofreseign from their posts. Through Annexure~'E' I-i.'g1et'Le1f datieciy'-s;E3§'8..2004i,ithe first respondent sought a clarification fromitheiGoverizrnent, as to whether he was required to resign as he was...appointet1.'on 26.2.2004 for a period of three years or until ~ fur-ther orders. No clarification was given by the Government and first""A_«respondent admittedly did not resign. Thereafter, the % Secretary communicated Annexure-'F' Circular dated iii"',_2'}.'7.2005 issued by the Chief Minister, instructing to initiate action to procure resignation of all n0n~offiCial (C214,, Chairmen/ Members appointed by the Government. It was also directed that in case of their refusal to tender resignation, the non-official Chairmen and Members appointed by the Government should be regarded as having been relieved and :V:Pri:n.clipal Secretaries / Secretaries of the respective departmerits' slloui-dlltake charge. Even after Annexure'F' Circular,"'tl1e fiijst respondent ciid ' not resign. However, he was constrained to hand over cha_:'igei'to the Secretary, Department of and Envirovnmentilsecondwi appellant) on 22.7.2005 as the..-----la.tter"--...gA we'11t_to:§ the first respondent's Office and over charge.

Thereupon the firs4t:"respon'de11t:l¥ letter dated 28.7.2005 to :.lLl'¢.iIv7'-llti1:3igl'ViV'C)ut that the above mentioned ;;ti§i;d. not-.rapply..». him and seeking the intervention_oi" to give appropriate direction for his continuance_, as Chairm'an_ll..'of the Board. Since no favourable decision in/as*commu*nicaterj to him, the first respondent filed the AVW_rit :Petiption'«cl1alienging his premature ouster from the office of th.elV..Board. The learned single Judge has allowed the Wrilt"Pet--itio'n..l if " ':"e.4_Inthe impugned judgment, the learned single Judge has the premature ouster of the first respondent from the ~loffi'cel of Chairman of the Board was illegal. We agree with the it above View taken by the learned single Judge. Admittedly no order 8 was passed by the Government terminating the appointment of the first respondent as Chairman of the Board or appointing any other person in his place. He was forced to hand over chaitge of Chairman to the second appellant on the basis Circular issued by the Chief Minister. The secondTappeill'anti never appointed / nominated as Chairman iundveiijSec--tio1i_4iiof the Act. By virtue of the proviso to s.ub-secitioirr (1) of..Sec'tion first respondent was entitled to hold :office until _iduly.;appointed V successor entered upon his office:"mAdrriittedply successor was appointed by the Government in first respondent and no person entered upon his office. However,'"he'<--xvasi3i'fo.rced._rte. over charge to the second appellant. remoiial of the first respondent from the ioffice' illegal and arbitrary and therefore the learned 'JLidge was justified in holding that the _.prernatui;;e ouster i'of_th_e_ first respondent from the office of iC.hairrnat1 'the:Board was illegal.

fin the*.i-iiijlnpugned judgment, learned single Judge has also held that inivievv of the terms and conditions of his appointment, firshrespondent is entitled to continue for a period of three yearns. in We do not agree with the above view taken by the learned Judge. Notwithstanding the terms and conditions ed in the order of appointment, the first respondent's tenure as Chairman of the Board is governed by the statutory provision which prescribed a specified period. It is specifically provided under subsection (6) of Section 5 that the appointment is against a casual vacancy, the perso~n--.appoi.?nted shall hold office only for the remainder of the term?' C member in whose place he was appointed." As we --are_satisfie'd that the first respondent was appointed as C~hairma:f,of the'Board-- in a casual vacancy caused by relini';1,:ii's.hment* oi"'ofl"1.cei"byiithe then C Chairman Sri. J . Alexander; 2W6 areiiiofii.tlieii'vi.ew that"t'r1"e tenure of the first respondent as Chairman :the.p:Bo_arid'V__would expire on 27.12.2005 and t_hari--_ie vsifouidjjioe.r_e'ri'ti.t1edflu; continue to hold office until his impugned judgment the learned SiI1gl,t3:"ha3:pnOit onlymheld that the Writ petitioner is entitled of three years from 26.2.2004 but also directediitheiresponirients in the Writ Petition {appellants _.herein) not to interfere his functioning as Chairman. We do not»a;g'r--e_e »Vitlithe"--above View taken by the learned single Judge. "9."*In context it has also to be noted that as per Annexurieohrder, the appointment of the first respondent as oi the Board was for a period of three years or until ft1'rth'eriorders. According to the appellants, in view of the above "stipulation in the appointment order, it was open to the Government to terminate the appointment of the first respondent 10 at any time, even before the expiry of the period of three years. We find force in this contention also.

10. By an interim order dated 10.2.2006 passed in ithieyhwrit appeal the operation of the order of the learned singgle-§Iud.gel' stayed to the extent it held that the writ petition..er_"*is continue as the Chairman of the Board fora'period.iAof..:threeiyears from 26.2.2004 and it restrained the ires'ponden.tJs.i:ini'theiiwritp petition from interfering with his_2'fi.1nctioninig2.'as"i§3hairman.

However, it was made would be entitled to hold office as successor was appointed in acco.rdarice of the Act and he enters upon his Government issued a Notification dated I-LC. Sharath Chandra as the Chairinanypof State Pollution Control Board under Setctiopn .'i?l/a.teri.l.1.3'revention and Control of Pollution) avperiod ofthree years with immediate effect and he tea; '¢1i.;irg.-§-f:'ai.§_ on 5.9.2005.

1"}... inv't11.e.i*'above circumstances, the impugned judgment of if iAt1<ie"'learned".single Judge is set aside to the extent it held that the yJrit--., petitioner was entitled to continue as the Chairman of the ':'third_§respondent Board for a period of three years from 26.2.2004 it prevented the respondents in the Writ petition from 11 appointing another person as Chairman of the third respondent Board in accordance with the provisions of the Act. The writ appeal is allowed to the above extent.

Ru/-