JUDGMENT Narendra Nath Tiwari, J.

Page 1128

1. In this writ application the petitioner has prayed for quashing the Letter No. 4904 dated 9.10.06 (Annexure-4) issued under the signature of the Secretary, Department of Forest and Environment, Government of Jharkhand whereby the Page 1129 said authority has stayed operation of the decision taken by the Parshad Mandal of the Jharkhand State Pollution Control Board, Ranchi in its 12th meeting dated 28.7.06 by which the age of superannuation of its officers and employees was enhanced from 58 years to 60 years in accordance with the Resolution No. 5826 dated 26.10.04 of the Department of Personnel Administrative Reforms and Rajbhasa, Government of Jharkhand. The petitioner has also prayed for quashing the Notification No. 385 dated 22.1.06 (Annexure-18) issued during the pendency of the writ application under the Signature of the Deputy Secretary, Department of Forest and Environment, Government of Jharkhand, whereby the decision taken by the Jharkhand State Pollution Control Board vide its Notification No. 38 dated 28.8.06 by which the age of superannuation of the officers and employees of the Board had been raised form 58 years to 60 years, has been set aside.

2. According to the petitioner, by the impugned order (Annexure-4), his date of retirement has been shifted down from 4.1.2009 to 4.1.2007 which is highly prejudicial and injurious to him. The petitioner was posted as the Member Secretary, Jharkhand State Pollution Control Board (hereinafter referred to as 'the Board' for short). It has been stated that his date of birth is 4.1.1949 and would attain 60 years of age on 4.1.2009. It has been stated that by the resolution communicated vide Memo No. 5826 dated 26.10.04 issued by the Personnel Administrative Reforms and Rajbhasa Department, Government of Jharkhand, the age of retirement of the government employees was enhanced from 58 years to 60 years. The copy of the said resolution was forwarded to all concerned including the said Board. In its 12th meeting of Parishad Mandal dated 28.7.06, the Jharkhand State Pollution Control Board, inter alia, decided to enhance the age or retirement of the officers and employees of the Board from 58 years to 60 years following the said resolution of the Government of Jharkhand dated 26.10.04. The said decision of the Board was implemented by Notification No. 38 dated 28.8.06. It has been stated that though the Secretary, Department of Forest and Environment, Government of Jharkhand is the Member of the Board, he did not participate in the said meeting, but one Sri Subhash Chandra Sinha, Deputy Secretary of the said Department, represented him. The decision for enhancing the age of the officers and employees of the Board was unanimously taken by all the Members including the said Sri Subhash Chandra Sinha. Rule 36 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'the said Act) provides that five members of the Board shall constitute quorum of any meeting of the Board. In the said 12th meeting more than five members had participated and the quorum was complete. The decision taken by the majority votes of the present members is in accordance with the Rule 35 of the said Act. It has been further stated that 'the Board' is an autonomous body and any resolution taken by the majority votes in a meeting constituting due quorum is perfectly legal and in accordance with the statutory rule. The State Government has no power to interfere with the decision of the Board, except in certain matters which are specifically envisaged in the said Act. It has been submitted that the Secretary, Department of Forest and Environment, Government of Jharkhand vide his Letter No. 4904 dated 9.10.06 (Annexure-4) arbitrarily raised an objection contending that the Jharkhand State Pollution Control Board cannot enhance the age of superannuation of its officers and employees from 58 years to 60 years. By the said letter, the Secretary also stayed operation of the decision taken by the Board in its 12th meeting dated 28.7.06. It has been submitted that the Page 1130 Secretary to the Department of Forest and Environment, Government of Jharkhand is only a member of the Board and he has got no authority to interfere with the decision of the Board or to pass an order staying operation of the Board's decision. Although the assets and liabilities of the Jharkhand State Pollution Control Board and Bihar State Pollution Control Board have not been apportioned till date, Jharkhand State Pollution Control Board has been legally constituted w.e.f 9.9.2001 which was approved by the Union of India, Ministry of Home Affairs by letter dated 4.12.01 and it has been functioning within the territorial jurisdiction of the State of Jharkhand from its very inception and the officers and employees are working under the said Board. The Board has got authority to take such decision. It has been submitted that all the schemes, rules, law, notifications of the Bihar State Pollution Control Board have been adopted by the Jharkhand State Pollution Control Board. No service rule/condition has been framed by the Board of its own. But the Board in its 10th meeting held on 29.12.05 took a decision to adopt the terms and conditions of service of the employees/officers of the State Government for its employees/officers. In view thereof, the decision was taken by the Board vide its Notification No. 38 dated 28.8.06 whereby the age of superannuation of the officers and employees of the Board was enhanced from 58 years to 60 years.

3. It is relevant to mention here that during the pendency of the writ petition, the State-respondents by its Notification No. 385 dated 22.1.07 issued under the signature of the Deputy Secretary, Department of Forest and Environment, Government of Jharkhand set aside the Board's Notification No. 38 dated 28.8.06. The writ petitioner by the application being I.A No. 256/07 brought the said subsequent event on record praying amendment in the writ petition, which was allowed by order dated 31.1.07 including addition of the prayer for quashing the Notification No. 385 dated 22.1.07 issued during the pendency of the writ petition. It has been contended by the petitioner that the State Government has absolutely no authority either to stay operation of the decision of the Board being Notification No. 38 dated 28.8.06 or to set aside the same and the impugned orders dated 9.10.06 (Annexure-4) and dated 22.1.07 (Annexure-18) purportedly issued by the State Government are wholly arbitrary, illegal and without jurisdiction and the same are liable to be quashed.

4. The state-respondents contested the writ application by filing their counter affidavit as well as making oral submissions. In the counter affidavit filed on behalf of the respondent Nos.1-3, it has been, inter alia, contended that the Jharkhand State Pollution Control Board (J.S.P.C.B) was constituted in compliance of the order of this Court dated 20.8.01 passed in C.W.J.C No. 2792/1998(R) which is comprised of five Regional Offices of the Bihar State Pollution Control Board located at Dhanbad, Ranchi, Hazaribagh, Jamshedpur and Deoghar failing within the territorial jurisdiction of the newly created State of Jharkhand. The J.S.P.C.B has not created any post for appointment of employees and officers and all the employees and officers of the said Board are of the Bihar Sate Pollution Control Board. The petitioner is a Senior Environment Engineer and has been working as the Member Secretary, Jharkhand State Pollution Control Board in addition to his own duties, by way of the stop gap arrangement till the appointment of a regular Member Secretary. It has been stated that the age of superannuation of the employees of J.S.P.C.B is 58 years and the J.S.P.S.B has no authority to enhance the age of superannuation without any approval by the Government Page 1131 of Jharkhand as required under Section 12(4) of the Water (Prevention and Control of Pollution) Act, 1974. It has been stated that as per the provisions contained in Section 12(4) of the said Act, any regulation made by the Jharkhand State Pollution Control Board with regard to the service conditions of its employees and officers cannot take effect unless it is approved by the Government of Jharkhand. In the instant case the regulation made by the Board with regard to the enhancement of the age of superannuation of its employees has not been approved by the Government of Jharkhand. Without approval of the same by the State Government, the said decision cannot be made applicable and as such operation of the same was stayed by the State Government by its Letter No. 4904 dated 9.10.06 (Annexure-4) which has been subsequently set aside by its decision being Notification No. 385 dated 22.1.07 (Annexure-18) and that there is no arbitrariness and illegality in the impugned orders.

5. Mr. A. K. Sinha, learned Sr. counsel appearing on behalf of the petitioner, submitted that the Jharkhand State Pollution Control Board has adopted all the service conditions of Bihar State Pollution Control Board including its resolution communicated by Memo No. 2107 dated 11.8.86 by which it was decided that same terms and conditions of services shall be applicable to the employees of the Board as are applicable to the employees of the State Government as no separate service condition was framed by the Board under Section 12(4)(a)(b) of the said Act. It has been stated that the State of Jharkhand vide its Resolution No. 5826 dated 26.10.04 enhanced the age of superannuation of its employees from 58 years to 60 years and as the same service conditions are applicable to the employees of the Board and there being no separate regulation, approval of the State Government is not at all required under the provisions of the said Act and the State Government has absolutely no power to interfere with the decision taken by the Board for enhancing the age of superannuation of its employees from 58 years to 60 years. It has been further submitted that all the Universities in the State of Jharkhand, Municipal Corporation, Mineral Development Corporation and other Public Sector undertakings have extended the age of superannuation of their employees from 58 years to 60 years in the light of the said resolution of the State of Jharkhand and there is no reason as to why the age of superannuation of the employees of the Board should not be enhanced when the service conditions of the employees of the State Government have been adopted and made applicable to them.

6. Learned Advocate General appearing on behalf of the State, on the other hand, vehemently supported the impugned decisions taken by the State and submitted that the said decisions have been taken in accordance with the provisions contained in Water (Prevention & Control of Pollution) Act, 1974. Learned A.G centered his argument contending that the Board's decision on the terms and conditions of the services of its employees and officers cannot be made applicable unless the same is approved by the State Government as required under the provisions of Section 12(4) Proviso (b), of the said Act and the decision of the Board contrary to the said provision is illegal and inoperative and the same has been rightly set aside by the impugned Annexure-18.

7. In view of the rival contentions and submissions made by learned counsel for the petitioner and learned Advocate General, the points arise for determination are as to (i) whether the decision taken by the Jharkhand State Pollution Control Board vide Notification No. 38 dated 28.8.06 whereby the age of superannuation of its employees and officers has been enhanced from 58 years to 60 years is a Page 1132 regulation within the meaning of Section 12(4) of the Water (Prevention and Control of Pollution) Act, 1974 attracting Proviso (b) to the said Sub-section and making approval of the State Government mandatory and giving power to the State Government to interfere with the decision taken by the Board vide its Notification No. 38 dated 28.8.06?

8. Section 12 of the said Act deals with the Member-Secretary, Officers and other employees of the Board and the terms and conditions of their services which runs as follows:

12. Member-secretary and officers and other employees of Board - (1) The terms and conditions of service of the member-secretary shall be such as may be prescribed.

(2) The member-secretary shall exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board of its chairman.

(3) Subject to such rules as may be made by the Central Government or, as the case may be, the State Government in this behalf, a Board may appoint such officers and employees as it considers necessary for the efficient performance of its functions.

(4) The method of recruitment and the terms and conditions of service (including the scales of pay) of the officers (other than the member-secretary) and other employees of the Central Board or a Stats Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board;

Provided that no regulation made under this subsection shall take effect unless-

(a) In the case of a regulation made by the Central Board, it is approved by the Central Government; and

(b) In the case of regulation made by a State Board, it is approved by the State Government.

(5) Subject to such conditions as may be prescribed, a Board may from time to time appoint any qualified person to be a consulting engineer to the Board and pay him such salaries and allowances and subject him to such other terms and conditions of service as it thinks fit On careful reading of Sub-section 4 of Section 12 of the said Act, it is clear that the method of recruitment and the terms and conditions of service and scales of pay etc of the officers and employees of the Central or State Board shall be determined by regulations made by the Central Board and by the State Board or as the case may be.

9. Regulation has not been defined in the said Act. The General Clauses Act, 1897, defines regulation under general definition. Section 3(50) of the General Clauses Act, runs as follows:

"Regulations" shall mean a Regulation made by the President under Article 240 of the Constitution, and shall include a Regulation made by the President under Article 243 thereon and a regulation made by the Central Government under Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935.

Page 1133 Admittedly, the decision taken by the Board as contained in Annexure-4 is not a regulation within the said definition of the General Clauses Act as it is not made by the President under Article 240 of the Constitution, Article 243 (now repealed) nor the same is a Regulation made by the Central Government under the Government of India Act, 1870 or 1915 or 1935.

10. It is evident that 'Resolution' is not included in the definition of 'Regulation'. In the case of H.G. Jain v. State of Maharashtra reported in 1993 Criminal Law Journal, 1209, a Division Bench of Bombay High Court held that the resolution by the State or Central Government empowering an officer to detain under Section 3(1) of the COFEPOSA Act, 1974 is not a regulation (emphasis is mine). No other provision of law has been placed before me by the respondents under which the said resolution taken by the Board can be brought within the ambit of regulation as envisaged under Subsection 4 of Section 12 of the said Act. In view thereof, I have no option but to hold that the resolution of the Jharkhand State Pollution Control Board as contained in Notification No. 38 dated 28.8.06 (Annexure-3) cannot be said to be a regulation and the statutory requirement for approval of the same by the State Government for making the same effective, is not attracted and the proviso (b) to Sub-section 4 of Section 12 of the said Act is not applicable.

11. Mr. S. B. Gadodia, learned Advocate General, advancing his alternative argument submitted that according to the provisions of Section 12, the terms and conditions of services of the officers and employees of the Board have to be determined by a regulation and if any decision of the Board is not accepted as a regulation, it will lead to an anomalous situation as in absence of a regulation, no terms and conditions of service can be said to be applicable to the employees/officers of the Board and in that view, the resolution contained in Annexure-3 becomes redundant.

12. Mr. A. K. Sinha, learned Sr. counsel appearing on behalf of the petitioner, in reply to the said contention of learned A.G, urged that the only question to be determined in the instant writ petition is as to whether the State Government has any jurisdiction to interfere with the said resolution of the Board (Annexure-3) and whether the State Government has any authority to stay operation of the Board's resolution or set aside the same as has been illegally done by the State-respondents. The other question raised by learned A.G has absolutely no relevance for the decision of the instant writ petition.

13. I find substance in the said submission made by Mr. Sinha. For determining the question as to whether the State Government has got any jurisdiction to interfere with the Board's Resolution (Annexure-3) and to pass the impugned orders dated 9.10.06 (Annexure-4) and dated 22.1.07 (Annexure-18), the other question posed by learned A.G in this case does not merit consideration and adjudication in this writ petition.

14. For the reasons aforementioned, this writ petition is allowed. The impugned order dated 9.10.06 (Annexure-4) as also the order dated 22.1.07 (Annexure-18) are, hereby, quashed.

15. However, there shall be no order as to costs.