ORDER Balakrishna, J.

1. The petitioner has challenged the Notice dated 4-11-1989 issued by respondent-1 calling upon the petitioner to show cause as to why his nomination as the Chairman of the Karnataka State Pollution Control Board should not be cancelled.

2. The petitioner has sought for a certiorari for quashing the impugned notice and also for prohibiting the respondents from taking further action in pursuance of the impugned notice. He has also sought for a Mandamus to continue the petitioner till 9-8-1991 in office as Chairman of the Karnataka State Pollution Control Board.

3. The following are the material facts of the case:-

The petitioner who is a Post Graduate Degree holder in Public Health Engineering had been working for 15 years in different capacities in the Public Works Department of the Government of Karnataka. By a Notification dated 8-8-1988 issued by the State Government, the petitioner who was serving as a Superintending Engineer in the Public Works Department was promoted as Chief Engineer of the same Department and his services were placed at the disposal of the Department of Ecology and Environment for the purpose of appointment as Chairman, Karnataka State Pollution Control Board, Bangalore (hereinafter referred to as 'the Board') and was appointed with immediate effect and until further orders under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'the Act') as Chairman of the Board in the place of S. Hanmanth Rao who retired from service. On 12-12-1988, the State Government Issued an order in relation to the appointment of the petitioner as the Chairman of the Board notifying the terms and conditions governing his deputation from the Public Works Department to the post of Chairman of the Board enumerating his service conditions. According to this order, the term of office of the petitioner would expire on 30-11-1989. This order was communicated to the petitioner which is not disputed. The petitioner assumed charge and started functioning as the Chairman of the Board subject to the said terms and conditions. For the first time on 24-8-1989, the petitioner addressed a letter to the Secretary to the Government, Department of Personnel & Administrative Reforms, Bangalore, which reads as follows:-

"Sub: Appointment of Sri R.P. Shavi, Chief Engineer as Chairman, Karnataka State Pollution Control Board, Bangalore terms regarding.

With reference to the subject cited above, I have to state that I was promoted to the post of Chief Engineer vide reference cited in Sl.No. 1 and subsequent to my promotion, my services were placed at the disposal of the Department of Ecology and Environment.

The Department of Ecology and Environment vide their order dated 8-8-1988 cited at Sl.No. 2 above has appointed me as Chairman of Karnataka State Pollution Control Board under Section 4 of the Water (Prevention and Control of Pollution) Act 1974.

In reference to the terms and conditions of Deputation of Foreign Service, Government vide their order dated 12-12-1988 at Sl.No. 3 cited above, it has been communicated that the period of deputation is upto 30-11-1989.

In response to the order cited above, I wish to state that I have been appointed as Chairman. Karnataka State Pollution Control Board, with effect from 8-8-1988. I have assumed charge as Chairman on 10-8-1988. My appointment as the Chairman, it is to be stated that it will be governed by the statutory provisions, governing the terms and conditions of the appointment of Chairman in the State Pollution Control Board. Section A Sub-section 2 of the Act provides for the composition of a State Board according to the same, as a Chairman, I am also a Member of the Board and therefore ray terms and conditions of service ipsofacto by being a Member will be governed by Section 5 of Water (Prevention and Control of Pollution) Act 1974, which provides for the terms and conditions of the service of Members. According to Section 5(1), as a Chairman and as a Member of the Board, I am to hold the office for a term of 3 years from the date of my nomination. Accordingly, my terms as a Chairman which has commenced on 10-8-1988 will expire on 9-8-1991.

Therefore, it may be stated, my continuation as the Chairman will be till the period cited above i.e., 9-8-1991 and therefore the date of expiration of my deputation will be immaterial for my holding the post of Chairman."

4. In the said letter, the petitioner contended that his continuation as the Chairman will be till the period expiring on 9-8-1991 and that the date of expiration of his deputation will be Immaterial for his holding the post of Chairman. In response to the said letter, a reply was received from the State Government informing the petitioner that the term of deputation as Chairman of the Board will be only upto 30-11-1989 since the petitioner is due to retire on superannuation on the said date. Thereafter, there was no further representation by the petitioner to the Government. On 4-11-1989 the impugned notice was Issued by the Government which is reproduced below:-

"You have been nominated as the Chairman of the Karnataka State Pollution Control Board under Section 4(2) of the Water (Prevention and Control of Pollution) Act 1974 under Notification No. DEE 109 ENV 88 dated 8-8-1988.

The Government is of the considered view that it is always in the best interest of the Board to have a person in Government service as the Chairman of the Board. In fact that has been the policy of the Government as reflected from the practice followed hitherto.

It is seen that you will retire from Government Service on attaining superannuation with effect from the afternoon of 30th November 1989 and cease to be a Government servant from 1st December 1989. It is therefore proposed to cancel your nomination as the Chairman of the Pollution Board, with effect from 16-11-1989 forenoon in exercise of the power vested in the Government under Section 5(3) of the aforesaid Act, so as to enable the Government servant who has to his credit adequate duration of service under the Government.

If you have got anything to say with reference to the above proposal, you may please show-cause as to why your nomination as the Chairman of the Karnataka State Pollution Control Board should not be cancelled, within one week from the date of the receipt of the notice. If you fail to do so within the stipulated time action as deemed fit will be taken with reference to the proposal reflected herein above."

5. In the impugned notice, the petitioner was notified that he is due to retire from Government service on attaining superannuation with effect from the afternoon of 30-11-1989 and thus cease to be Government servant from 1-12-1989 and that it is proposed to cancel his nomination as the Chairman of the Board with effect from 16-11-1989 forenoon in exercise of the power vested in the State Government under Section 5(3) of the Act in order to enable the Government to nominate some other suitable Government servant who has to his credit adequate duration of service under the Government. The petitioner was given a time of one week from the date of receipt of the said notice to reply. On 8-11-1989, the petitioner sent his reply to the impugned notice contending that the ground on which the State Government seeks to remove the petitioner from the post of Chairman is unsustainable in law and requested the Government to drop the proposal and allow him to continue in office till 9-8-1991 i.e., for a term of 3 years from the date of his nomination which is 10-8-1988. After issuing the reply, the petitioner has approached this Court invoking the Writ Jurisdiction under Article 226 of the Constitution.

6. I have heard Sri B.B. Bajentri, learned Counsel appearing for the petitioner and Sri C. Shivappa, learned Advocate General appearing for the respondents at length.

7. The contention of the petitioner is that the policy with regard to the qualification and experience for nomination as Chairman of the Board is statutority fixed under the Act as provided under Section 4 of the Act and that the acceptance of the policy of the Government would tantamount to prescription of an age limit contrary to the statutory term of office thereby resulting in usurpation of the power of the Parliament which enacted the law. The second contention is that the respondents have already made up their mind to remove the petitioner from office and that the impugned notice is only an empty formality and, therefore, the decision is opposed to the principles of natural justice and intendment of Sub-section (3) of Section 5 of the Act.

8. It may be mentioned that though the petitioner had taken the plea in the Writ Petition that the action of the respondents to remove the petitioner from office smacks of malafides, is arbitrary and based on no valid and sound reason, it was not pressed at the Lime of arguments. The learned Counsel appearing for the petitioner submitted that this contention is given up by the petitioner.

9. On behalf of the respondents, it was contended that the petitioner having accepted the terms and conditions of the appointment which are embodied in the order dated 12-12-1988 fixing his term of office upto 30-11-1989, cannot resile from the acceptance subsequently, and the power sought to be exercised under Sub-section (3) of Section 5 of the Act is a power conferred on the Appointing Authority by the Act and it cannot be called into question when the Appointing Authority is seeking to exercise the power vested in it by the statute when it thinks fit to do so in the circumstances of the case. It was also contended that the power exercised under Sub-section (3) of Section 5 of the. Act has not been exercised arbitrarily and the reason for the proposal to remove the petitioner from office has been disclosed in the impugned notice, the reason being based on the policy of the Government to nominate some other suitable Government Servant who has to his credit adequate duration of service under the Government, particularly in view of the fact that the petitioner is due to retire from Government service on attaining superannuation with effect from the afternoon of 30-11-1989 and thus would cease to be a Government servant from 1-12-1989. It was further contended that the proposal to cancel the nomination of the petitioner as the Chairman of the Board is not by way of punishment, but only as a policy measure. It was also contended that the petitioner is essentially an employee in the Public Works Department of the State Government and he was deputed and his services were placed at the disposal of the Department of Ecology and Environment for appointment as Chairman of the Board and that he is not a non-official appointed to the post and, therefore, he cannot claim the full term of office provided under Section 5(1) of the Act for a period of 3 years from the date of his nomination.

10. As regards the second contention of the petitioner, the learned Advocate General submitted that the petitioner has approached the Court prematurely and that the impugned notice Is not an empty ritual, but a step taken in the right direction in consonance with the principle of natural justice. It was ultimately submitted that there is no element of arbitrariness in the issue of the impugned notice and the proposed cancellation.

11. The point for consideration is whether the impugned notice is in violation of either any statutory provision of the Act or contrary to the principles of natural justice and whether the petitioner is entitled to continue in service for a period of 3 years from the date of his nomination.

12. It is necessary to advert to the relevant provisions of the Act. According to Section 2(c) of the Act, 'member' means a member of a Board and includes the Chairman thereof and under Section 2(a) of the Act, 'Board' means the Central Board or State Board. Section 5(1) of the Act reads thus:-

"5. Terms and conditions of service of Members:-

(1) Save as otherwise provided by or under this Act, a Member of a Board, other than a Member-Secretary, shall hold office for a term of three years from the date of his nomination;

Provided that Member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office."

According to Sub-section (3) of Section 5 of the Act:-

"The Central Government or, as the case may be, the State Government may, if it thinks fit, remove any member of a Board before the expiry of his term of office, after giving him a reasonable opportunity of showing cause against the same."

13. Thus, it is clear that the word 'memoer' means and includes the Chairman of the Board also. According to Section 5(1) of the Act, the Chairman shall hold office for a term of three years from the date of his nomination, save as otherwise provided by or under the Act. From this provision, it is evident that the Chairman shall have a term of office of three years subject to what is otherwise provided for by or under the Act. If any other provision of the Act imposes a limitation on the term of office, the petitioner is bound by the same.

14. Under Sub-section (3) of Section 5 of the Act, the State Government is empowered to remove the Chairman before the expiry of his term, of office if it thinks fit, after affording him a reasonable opportunity of showing cause against the same.

15. Thus, under Sub-section (3) of Section 5 of the Act, the State Government is invested with the power of removal of the Chairman before the expiry of the term of office fixed under Section 5(1) of the Act if it deems fit to do so subject to the condition that a reasonable opportunity of showing cause against such removal is afforded to the Chairman. In my opinion, the discretion which is given to the State Government for removal of the Chairman before the expiry of the term of office is a statutory discretion which cannot be arbitrarily exercised. There is no dispute about the fact that a reasonable opportunity of showing cause has been afforded to the petitioner and in fact it is such a notice which is in question in this Writ Petition under the impression that it is only an empty ritual and that the respondents have already made up their mind to remove the Chairman from the office. In order to ascertain whether or not there is an element of arbitrariness, it is necessary to look into the impugned notice as to whether it gives any reason for the proposal to remove the Chairman from office.

16. In the impugned notice, it is clearly mentioned that the Government is of the considered view that it is always in the best interest of the Board to have a person in Government service as the Chairman of the Board. It is also stated that it is, in fact, the policy of the Government as reflected from the practice followed so far. In the third paragraph of the impugned notice, the following relevant portion shows throws sufficient light on the question:

"It is seen that you will retire from Government service on attaining superannuation with effect from the afternoon of 30th November 1989 and cease to be a Government servant from 1st December 1989. It is therefore proposed to cancel your nomination as the Chairman of the Pollution Board, with effect from 16-11-1989 forenoon in exercise of the power vested in the Government under Section 5(3) of the aforesaid Act, so as to enable the Government to nominate some other suitable Government servant who has to his credit adequate duration of service under the Government."

17. It is, therefore, seen that the proposal to remove the petitioner from office was actuated by a policy decision of the State Government to have a person in Government service as the Chairman of the Board. The second reason apparent on the face of the impugned notice is that the petitioner is proposed to be removed from office before 30-11-1989 and that is with effect from 16-11-1989 forenoon for the reason that it would enable the Government to nominate some other suitable Government servant who has to his credit adequate duration of service under the Government. Not only a clear reason is assigned in the impugned notice to support the proposed cancellation of the nomination of the petitioner as the Chairman, but also a valid reason is assigned for removal of the petitioner before 30-11-1989. It is difficult to accept the contention of the learned Counsel for the petitioner that the impugned node is either arbitrary or capricious. The impugned notice not only discloses the proposed action, but also discloses the reasons behind the proposed action and affords a fair and reasonable opportunity to the petitioner to submit his reply. The impugned notice is perfectly in conformity with the requirement of subsection (3) of Section 5 of the Act and it cannot be categorised as an empty ritual or an empty formality. I fail to see any arbitrariness in State action.

18. It cannot be gainsaid that the petitioner did accept the terms and conditions of office communicated to him by the order dated 12-12-1988 wherein it was made unequivocally clear that the nomination of the petitioner as the Chairman would subsist only upto 30-11-1989. Having accepted the terms and conditions of office incorporated in the order dated 12-12-1989, the petitioner is estopped from going behind the same and the term of office embodied in the said order is binding on him. The subsequent representation which the petitioner gave for continuation of his service for a period of 3 years from the date of his nomination through his letter dated 24-8-1989 is about 8 months subsequent to the acceptance of the service conditions by him. It appears to me that the exercise of the petitioner through his letter dated 24-8-1989 laying claim to office for a term of 3 years is only a subsequent desire and an after thought. At this distance of time, it is not open to the petitioner to undo what has already been accepted by him and acted upon. The petitioner is poised on a slippery ground. The petitioner cannot both approbate and reprobate.

19. If the object of the respondents was to remove the petitioner from office for any disqualification, it was open to the respondents to take action under Section 6 of the Act. By no stretch of imagination it can be said that the action taken under Sub-section (3) of Section 5 of the Act is in effect an action taken under Section 6 of the Act. There is absolutely no basis for such an assumption.

20. In judicial review of executive action, the Court is averse to enter into the twilight zone and to go behind an executive policy and examine its correctness unless the policy is patently violative of any constitutional or statutory provision. But in the exercise of the extraordinary power vested in this Court under Article 226 of the Constitution, the Court would not be justified in substituting its wisdom to the wisdom behind an administrative or executive policy. In the case in hand, I do not find any repugnancy between the policy adopted and the statutory provisions of the Act and it is not the case of the petitioner that the policy offends any constitutional provision. I do not see any violation of the principles of natural justice. On the other hand, I must observe that by issuing the show-cause notice as contemplated by Section 5(3) of the Act, natural justice which is nothing but a condition of procedural reasonableness has been duly complied with. There is no contravention of the provisions of Section 5(1) of the Act which does not contain any non-obstante clause guaranteeing to the petitioner an irreducible tenure of office.

There is no merit or substance in the Writ Petition. The petitioner has entered the portals of the Court prematurely after issuing a reply to the show-cause notice as a preemptive step willing to take the risk of a decision on merits even before he is removed from office.

21. The following authorities relied upon by the learned Counsel for the parties are inapplicable to the facts and circumstances of the Instant case:

(1) SHYAMALAL v. STATE OF U.P., , (2) SIDDAPPA v. STATE OF KARNATAKA, 1979(2) KLJ 238, (3) KHAN CHAND v. STATE OF PUNJAB, , (4) DIBYASINGH MALANA v. STATE OF ORISSA, ,

22. In R.V. PORT OF LONDON AUTHORITY EX P. KYNOCH LTD., (1919) 1 KB 1761 @ 182. Bankes, L.J. posited:-

(There are);

"cases where a Tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case", in contrast to "cases where a Tribunal has passed a Rule, or come to a determination not to hear any application of a particular character by whomsoever made."

Accordingly, the Port of London Authority which was empowered to grant or withhold permission for the construction of the docks was allowed to enforce its policy refusing permission after due consideration.

23. In the instant case, the Government in the honest exercise of its discretion has adopted a policy and has afforded a reasonable opportunity to show cause against the proposed action as enjoined by the statute, it is not the case of the petitioner that the Government has no power to lay down a policy in the matter of appointment of a Chairman to the Board. The power to make a policy stems from Article 162 of the Constitution and it is evolved from time to time in response to situational needs within the orbit of public interest, as an integral part of state-craft. It is impermissible for the petitioner to drive a wedge between the declared policy and statutory authority conferred on the Government by Sub-section (3) of Section 5 of the Act empowering the Government to implement its policy. Such a power is to be construed from the words "if it thinks fit" found in Section 5(3) of the Act. Thus, I do not find any substance in the contentions of the petitioner.

24. It is my considered opinion that the respondents are statutorily and fully empowered to take action under Section 5(3) of the Act for removal of the petitioner from the post of Chairman of the Board as proposed in the impugned notice and that the petitioner is not entitled to continue as Chairman for 3 years.

25. For the foregoing reasons, the Writ Petition fails and is dismissed.