L.MOHAPATRA, J & B.K.PATEL, J.

W.P.(C) NO. 21375 OF 2011 (Dt.23.12.2011) DR. BARADA KANTA MISHRA ......... Petitioner.

.Vrs.

STATE OF ORISSA .........Opp.Party.

AIR (PREVENTION & CONTROL OF POLLUTION) ACT, 1981 (ACT NO. 74 OF 1981)

- S.5.

For Petitioner - M/s. Jagannath Patnaik, B.Mohanty, T.K.Patnaik, A. Patnaik, S.Patnaik, M.S.Rizvi, R.P.Roy & B.S.Rayguru.

         For Opp.Party -        Advocate General.

L. MOHAPATRA, J.              This writ application relates to appointment to the post of

Chairman, State Pollution Control Board. The petitioner was a faculty of Botany Department in Ravenshaw University and thereafter he served as Deputy Controller of Examinations, Council of Higher Secondary Education, Orissa on deputation. The petitioner also worked as Deputy Director in the Directorate of Higher Education and thereafter as Deputy Secretary to Government in the Department of Higher Education. He also worked as Principal, Rajdhani Junior College. The petitioner was also the Senior Scientist, Forest and Environment Department, Government of Orissa which is concerned with Environmental Management and Administration. After serving as Senior Scientist, the petitioner became the Member Secretary, State Pollution Control Board, Orissa and continued as such till he attained the age of superannuation. It is stated in the writ application that the petitioner is also the co-author of books published by the Orissa State Bureau of Text Book Preparation and Production. He also participated in a specialized training programme on assessment of hazardous Waste Dump, Sites and Preparation of Remediation of Plants in Germany and had also participated in a number of National Conferences and Seminars. Since January 2008 the post of Chairman, State Pollution Control Board was lying vacant. The then Chief Secretary proposed for appointment of the then Development Commissioner as the Chairman of State Pollution Control Board and at the same time an order was passed to constitute a Search Committee for choosing a suitable person for appointment to the post of Chairman, State Pollution Control Board on regular basis.

Section-5 of Air (Prevention and Control of Pollution) Act, 1981 provides for appointment of a Chairman for the State Pollution Control Board. It is provided that State Board constituted under the Act shall consist of a Chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection, to be nominated by the State Government, provided that the Chairman may be either whole time or part time as the State Government may think fit.

2. The Hon'ble Supreme Court constituted an Expert Committee under the Chairmanship of Prof. M.G.K.Menon to examine and recommend measure for protecting the environment from the impacts of generation and trans-boundary movement of large volumes of hazards waste in the country in a Public Interest Litigation filed in the year 1995. The Committee while making recommendations on the relevant issues also suggested certain eligibility criteria required to be fulfilled for appointment to the post of Chairman, State Pollution Control Board. The said report of the Committee was accepted in principle by the Hon'ble Supreme Court of India vide order dated 31.8.2007. The Hon'ble Supreme Court also constituted a 'Supreme Court Monitoring Committee' to over see the compliance of those recommendations submitted by the Committee. Supreme Court Monitoring Committee laid down the qualifications for the candidate for appointment to the post of Chairman, State Pollution Control Board which are as follows:-

1) He should have an understanding of the complexity of the modern Science and Technology, Pollution Control matter and Environmental Management with a sense of vision and feeling for the future.

2) He should have an understanding and experience in dealing with legal matters.

3) He should be dynamic with administrative experience of leading a scientific group as evinced from his track record.

3. In view of the order passed by the Hon'ble Chief Minister to constitute a Search Committee for choosing a suitable person for appointment to the post of Chairman, State Pollution Control Board on regular basis, a Search Committee was constituted with the following as it's member.

       1.      Chief Secretary                         .... ...      Chairman

       2.      Chairman, Central Pollution
               Control Board, Delhi                    .. ....     Member

       3.      Development Commission-cum-
               Addl.Chief Secretary                     ......       Member

       4.      Dr.C.R.Mohapatra, Former
               Chairman, SPCB, Orissa                   .......      Member

       5.      Principal Secretary, Forest
               And Environment Department        ......      Member Convener

4. The Committee as per the earlier practice decided to issue an advertisement calling for applications/nominations for appointment to the said post and such advertisement was published in English Newspaper and in daily Newspaper 'The Sambada' and in the departmental website. Applications/nominations were invited from persons who had worked or were working in the State Government/Central Government Departments/Public Sector Undertakings and Universities and all the eligible criteria had also been indicated in the said advertisement. In pursuance of the said advertisement, the petitioner submitted his application. In total 51 applications were received by the Search Committee and after short listing, 13 candidates were called for interaction including the petitioner. The petitioner was called upon to appear before the Search Committee for interaction on 23rd April 2011. On 26th April, 2011 the Search Committee selected and recommended three candidates in order of merit and name of the petitioner found place at serial no.1 in the panel of the selected candidates prepared by the Search Committee. After completion of entire selection process, a panel was prepared and the Principal Secretary, F & E Department on the basis of recommendations made by the Search Committee proposed the name of the petitioner, who was at Serial No.1 of the merit list, to the Hon'ble Chief Minister for appointment to the post of Chairman, State Pollution Control Board for a period of three years. In Annexure-1, the Hon'ble Chief Minister rejected the panel submitted by the Search Committee and recommended by the Principal Secretary with the following note.

"None of the recommended persons is found suitable and the panel is rejected.

Challenging the said order passed by the Hon'ble Chief Minister, this writ application has been filed.

5. Shri Jaganath Patnaik, learned Senior Counsel appearing for the petitioner at the time of hearing drew attention of the Court to paragraph-5 of the writ application and submitted that the Search Committee constituted in terms of the observation made by the Hon'ble Supreme Court in the above mentioned case formulated a procedure for selection of a candidate for appointment to the post of Chairman, State Pollution Control Board. Numerical weightage in respect of all the important parameters/attributes were decided to be given at the time of selection. The total mark was kept at 10, out of which two had been assigned for Ph.D. in Science, M.Tech and ME, six marks for twenty years service including five years in environment management/pollution control and two marks for experience in handling legal matters as evinced from the type of work performed. According to Shri Pattnaik, learned Senior Counsel appearing for the petitioner, the Search Committee consisted of creative people having ample knowledge and experience in administration and environmental affairs. The Search Committee having such experience, had formulated a procedure for selection of the candidate keeping all parameters/attributes necessary for a candidate to hold the post of Chairman, State Pollution Control Board. The Search Committee having selected the petitioner as No.1 in the panel, there was no reason on the part of the Hon'ble Chief Minister to reject the said recommendation on the ground that none of the persons is found suitable. When the Search Committee found the petitioner most suitable for appointment to the said post and placed the petitioner at serial no.1 in the panel of three selected candidates the reason for which the Hon'ble Chief Minister found all the three selected candidates unsuitable is not spelt out in the impugned order. Reliance was placed by Shri Patnaik, learned Senior Counsel on a decision of the Hon'ble Supreme Court in the case of R.S.Mittal Vrs. Union of India reported in 1995 Suppl(2) Supreme Court Cases 230. With reference to the said decision, it was contended by the learned Senior Counsel that where there is a vacancy which can be offered to a selected candidate on the basis of his merit position, denial of appointment to him without a proper reason is unjustified.

Learned Advocate General appearing for the opposite party submitted that recommendation of the Search Committee is not binding on the Hon'ble Chief Minister and it is open for him not to accept the recommendation made by the Search Committee and direct for preparation of a fresh panel. In the impugned order, the Hon'ble Chief Minister has only done that and, therefore no fault can be found with the impugned order passed by the Hon'ble Chief Minister.

6. Undisputedly, by order of the Hon'ble Chief Minister and in terms of the direction of the Hon'ble Supreme Court, a Search Committee had been constituted for selection of a candidate to be appointed as Chairman of the State Pollution Control Board on regular basis. Undisputedly, also the Search Committee consisted of members, who were competent because of their past experience to select a candidate. It is also not disputed that 51 applications were received and 13 candidates were short listed for interaction. The petitioner was one of those thirteen candidates. The Search Committee interacted with all the thirteen candidates and came out with panel of three candidates in order of merit for the purpose of appointment to the post. The petitioner was placed at serial no.1 in the panel of the three selected candidates. The Principal Secretary, F & E Department also forwarded the recommendation of the Search Committee for appointment. From the impugned order passed by the Hon'ble Chief Minister, it is seen that none of the recommended persons was found suitable. No reason whatsoever has been assigned in the impugned order as to why any one of the three empanelled candidates was not found suitable when they had been selected by the Search Committee keeping in mind the requirements for appointment to the said post. We therefore called upon the learned Advocate General to produce the relevant records to find out as to whether any reason has been assigned in the file for rejecting the panel on account of unsuitability.

7. From the office note, we find that as per the Government order, Search Committee was constituted with the Chairmanship of the Chief Secretary, Government of Orissa. Dr.C.R. Mohapatra, the former Chairman of State Pollution Control Board and the Chairman, Central Pollution Control Board were requested to give their consent to be members of the Search Committee. From the office note dated 26.4.2010, it appears that after obtaining consent, the Search Committee was constituted. From the office note dated 4.4.2011, it appears that under the Chairmanship of Chief Secretary the Committee discussed the modalities for selection of a suitable person for the post of Chairman, State Pollution Control Board and the Committee also decided to apply two more criteria to further reduce the number of applicants to be called for interaction. Thereafter short listing was done and the short listed candidates were requested to appear for interaction with the Search Committee. From the office note dated 26.4.2011, it appears that Search Committee held three sittings and selected three candidates in order of merit for the post after interaction with thirteen candidates through a short listing process out of 51 applicants whose applications had been received in response to an open advertisement in the newspapers and on the department's website. The following are the three candidates, who had been selected by the Search Committee.

1. Dr.Barada Kanta Mishra (Petitioner)

2. Shri Suresh Chandra Mohanty.

3. Prof.(Dr.) Pramod Chandra Mishra.

The Principal Secretary in the said note stated that the petitioner, who is at serial no.1 of the Search Committee panel may, perhaps, be appointed as Chairman, Orissa State Pollution Control Board for a period of three years from the date of assuming office. The then Chief Secretary also agreed to the said proposal and the file was placed before the Hon'ble Chief Minister. The Hon'ble Chief Minister passed the order on 7.7.2011 as quoted above but the record does not disclose any reason on the basis of which, none of the three candidates selected by the Search Committee was not found suitable.

8. The decision relied upon by the learned Senior Counsel Shri Pattnaik appearing for the petitioner relates to appointment to the post of Judicial Member, Income Tax Appellate Tribunal. From the said reported judgment, it appears that for appointment to the above post a Selection Board was constituted headed by a sitting Judge and the Board prepared a panel of selected candidates and sent its recommendations to the Central Government for consideration. The Central Government did not make any appointment and issued fresh advertisement inviting applications for the said post. The action of the Central Government was challenged before the Tribunal and ultimately the matter came before the Hon'ble Supreme Court. In paragraph-10 of the judgment, the Hon'ble Supreme Court has observed as follows.

"The Tribunal dismissed the application by the impugned judgment on the following reasoning:

(a) The selection panel was merely a list of persons found suitable and does not clothe the applicants with any right of appointment. The recommendations of the Selection Board were directory and not mandatory and were not therefore enforceable by issue of a writ of mandamus by the Court.

(b) The letter of Ministry of Home Affairs dated 8.2.1982 which extends the life of panel till exhausted is not relevant in the present case. In the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July 1989.

It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified".

9. In view of the above observation made by the Hon'ble Supreme Court in the said reported case, no reason having been assigned in the order in Annexure-1 as to why the candidates selected by the Search Committee were not found suitable for appointment, the said order is liable to be quashed.

10. We are conscious of the fact that recommendation of the Search Committee is not binding on the Hon'ble Chief Minister but at the same time when a panel is rejected on the ground that the selected candidates were not suitable for appointment to the post, such observation has to be on the basis of justifiable reasons. No reason whatsoever having been assigned in the said order in Annexure-1 while coming to a conclusion that none of the empanelled candidate is suitable for appointment, we find no other option except quashing the order in Annexure-1 and remit the matter back to the Hon'ble Chief Minister for reconsideration of the case in the light of the judgment of the Hon'ble Supreme Court quoted above. The writ application is disposed of accordingly.

Writ petition disposed of.