IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF AUGUST 2020

                       PRESENT

      THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE

                          AND

        THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

       WRIT PETITION NO.9205 OF 2020 (GM-RES-PIL)

BETWEEN:

SMT. GEETHA MISRA
AGED 50 YEARS
D/O KAILASHNATH MISRA, ADVOCATE
R/AT NO.135, 47TH CROSS,
3RD BLOCK, RAJAJINAGAR
BENGALURU-560 010.
                                            ...PETITIONER
(BY SRI. G R MOHAN, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY ITS CHIEF SECRETARY
       VIDHANSOUDHA
       BENGALURU-560 001.

2.     THE SECRETARY TO GOVERNMENT
       THE DEPARTMENT OF FOREST
       ECOLOGY AND ENVIRONMENT
       GOVERNMENT OF KARNATAKA
       VIDHANA SOUDHA, BENGALURU-560 001.

3.     THE SECRETARY
       KARNATAKA POLLUTION CONTROL BOARD
                                  2



      CHURCH STREET
      BENGALURU-560 001.
                                                 ...RESPONDENTS
(BY SRI. C.M. POONACHA, AGA FOR R-1 AND R-2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE GUIDELINES VIDE GOVERNMENT ORDER DATED
19.06.2020 AS PER ANNEXURE-B AS THE SAME IS
ULTRAVIRES OF THE CONSTITUTION IN RELATION TO
ARTICLES 21, 48A AND 51A OF THE CONSTITUTION.

      THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, CHIEF JUSTICE MADE THE FOLLOWING:

                              ORDER

Heard the learned counsel appearing for the petitioner.

2. This writ petition under Article 226 of the Constitution of India is filed in public interest for challenging the annexure to the Government Order dated 19th June 2020 (Annexure-B). Annexure-B contains guidelines for nomination, the terms and Conditions of service of the Chairman, the Members and the Member Secretary of the Karnataka State Pollution Control Board (for short 'KSPCB').

3. The learned counsel appearing for the petitioner has strong objection to Clause (5) of the said guidelines which provides that the Chairman shall be selected by a Search-cum- Selection Committee consisting of the Hon'ble Chief Minister 3 as the Chairman, the Hon'ble Minister for Forest, Ecology and Environment as the Vice Chairman and Member, and the Chief Secretary to the Government as the Secretary and Convenor of the Committee. He submitted that in what manner the appointment of Chairpersons and Members of KSPCB is to be made is laid down by the Apex Court in the judgment and order dated 22nd September 2017 in Civil Appeal No.1359 of 2017 in the case of TECHI TAGI TARA vs RAJENDRA SINGH BHANDARI AND OTHERS. He further submitted that in many cases like the Police Complaints Authority, Human Rights Commission and other similar statutory bodies, there are separate Search Committees and Selection Committees. His submission is that in the present case, the Search Committee and the Selection Committee are the same. His further submission is that ideally, the Search Committee should be entrusted with the job of shortlisting the eligible candidates and the selection shall be left to another Selection Committee. He submitted that paragraph 33 of the aforesaid decision of the Apex Court lays down that if a person who is not qualified is appointed as the Chairperson or a Member of a State Pollution 4 Control Board, any public spirited person can always approach the Constitutional Court for seeking a writ of quo warranto. He further submitted that if the Search Committee and the Selection Committee are one and the same, there is every likelihood that the person who does not meet the statutory or constitutional requirements will be appointed as the Chairperson or a member of the State Pollution Control Board. He invited our attention to paragraphs 30 to 33 of the aforesaid decision of the Apex Court.

4. We have carefully considered the submissions. Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (for short 'Water Act') provides for constitution of State Boards. Section 4 of the Water Act reads thus:

"4.Constitution of State Boards -(1) The State Government shall, with effect from such date as it may, by notification in the Official Gazette, appoint, constitute a State Board, under such name as may be specified in the notification, to exercise the powers conferred on and perform the functions assigned to that Board under this Act.

(2) A State Board shall consist of the following members, namely:-

(a) a full-time chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental 5 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 whole-time or part-time as the State Government may think fit;]

(b) "five officials" to be nominated by the State Government to represent that Government;

(c) "five persons" to be nominated by the State Government from amongst the members of the local authorities functioning within the State;

(d) "three non-officials" 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] (3) Every State Board shall be a body corporate with the name specified by the State Government in the notification under sub-section(1), having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by the said name, sue or be sued.

(4) Notwithstanding anything contained in this section, no State Board shall be constituted for a Union territory and in relation to a Union territory, the Central Board shall exercise the powers and perform the functions of a State Board for that Union territory:

Provided that in relation to any Union territory the Central Board may delegate all or any of its powers and functions under this sub-section to such person or body of persons as the Central Government may specify."

(underline supplied)

5. Hence, it follows that the power to appoint the Chairman has to be exercised by the State Government by nomination. The same is the case for the Members and the full-time Member Secretary of KSPCB. Therefore, the power to appoint the Chairman and the Members including the full- time Secretary vests with the State Government. At this stage, we must refer to the aforesaid decision of the Apex Court in the case of TECHI TAGI TARA (supra). Paragraphs 30, 32 and 33 of the said decision read thus:

"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 7 constituted for the purpose of putting their recommendations in the dustbin.

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 Government, 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 (2007) 6 SCC 586 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 the writ of quo wattanto if any person who does not meet the statutory or constitutional requirements is 8 appointed as a Chairperson or a member of any SPCB or is presently continuing as such."

6. Hence, the Apex Court laid emphasis on the fact that the State Pollution Control Boards must consist of suitable professionals and experts. The Apex Court observed that any compromise in the appointment would render the exercise undertaken by the State Boards irrelevant and redundant. It is further observed that due to the failure to appoint experts in the field and professionals on the body like SPCBs, there is a likelihood of damage to the environment which could be permanent. The Apex Court made it clear that in the event the Chairman or the Members of SPCBs appointed by the State Government do not meet the statutory or constitutional requirements, it is always open for a public spirited person to seek a writ of quo warranto.

7. Perusal of the order dated 19th June 2020 passed by the State Government shows that in the preamble, there is a specific reference to the aforesaid judgment and order of the Apex Court dated 22nd September 2017 which lays down the requirement of the State Government framing appropriate 9 guidelines. Clause (2) of the guidelines which are impugned in this writ petition shows that the State Government is conscious of the qualifications required for the post of Chairman prescribed by Clause (a) of sub-section (2) of Section 4 of the Water Act. Even Clause (3) of the guidelines which specifically lays down the qualifications shows that the qualifications laid down in the Water Act as well as in the aforesaid decision of the Apex Court have been taken into consideration.

8. As stated earlier, the Chairman is to be appointed by the State Government by nomination. There is nothing in the statute which lays down that the Search Committee and the Selection Committee cannot be one and the same. Therefore, per se, there is no illegality in Clause (5) of the guidelines even though the Search-cum-Selection Committee is headed by the Hon'ble Chief Minister. It is obvious that the Committee will be bound by the guidelines laid down in the aforesaid decision of the Apex Court as well as the qualifications laid down in Clause

(a) of sub-section (2) of Section 4 of the Water Act. We are sure that the Search-cum-Selection Committee will select only 10 those candidates who are well qualified and are possessing the qualifications as laid down by the Apex Court as well as the aforesaid provisions of the Water Act. If the Committee recommends appointment of a person who is not eligible in terms of the order of the Apex Court or who does not fulfill the qualifications laid down in Clause (a) of sub-section (2) of Section 4 of the Water Act, as held by the Apex Court, a public spirited person can always seek a writ of quo warranto. We, therefore, do not find anything illegal in the guidelines laid down by the State Government.

9. Subject to what is observed above, this is not a case where interference can be made with the guidelines issued by the State Government in terms of the decision of the Apex Court. Accordingly, the writ petition is disposed of.

Sd/-

CHIEF JUSTICE Sd/-

JUDGE TL