SC Opens Door For Legal Challenges to Appointments Lacking Proper Credentials in Pollution Boards

The court has set aside an NGT order on the matter saying the tribunal doesn't have jurisdiction, but made it clear that future legal challenges are welcome.

New Delhi: In a significant judgment, the Supreme Court bench of Justices Madan B. Lokur and Deepak Gupta today set aside the National Green Tribunal (NGT) order directing state governments to reconsider appointments to the State Pollution Control Boards (SPCBs) and laying down guidelines for such appointments. According to the apex court, the NGT does not have the jurisdiction to make this decision.

However, the bench agreed with the NGT that such appointments should not be made casually or without due application of mind, considering the duties, functions and responsibilities of the SPCBs.

The court directed the executive in all states to frame appropriate guidelines or recruitment rules within six months, considering the institutional requirements of the SPCBs and the laws laid down by statute, by the Supreme Court and as per the reports of various committees and authorities, and ensure that suitable professionals and experts are appointed to SPCBs.

It is left open to public-spirited individuals to move the appropriate high court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as chairperson or member of any SPCB, or is presently serving as such, the court held.

This case originated when a public-spirited, environmentally-conscious activist, Rajendra Singh Bhandari, challenged the composition of the SPCB in Uttarakhand. In Uttarkhand, no rules (let alone recruitment rules) were framed by the state under the water and air pollution Acts, even though the state was formed in 2000. Rules framed by Uttar Pradesh were adopted by Uttarakhand, but there was no fresh look at these rules or even consideration of the somewhat different conditions in Uttarakhand.

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Meetings of the SPCB are required to be held once in three months. But in Uttarakhand, only 15 meetings were held over 12 years starting from 2001 (when the board was constituted). Despite the Supreme Court passing an order on January 8, 2008, directing Uttarakhand and the SPCB to consider the desirability of making rules laying down essential qualifications, experience and other relevant factors for the appointment of members to the board, such rules were not made.

Keeping all these facts and the recalcitrance of state governments in mind, the NGT examined the expertise and qualifications of members of the SPCBs of almost all states and prima facie found that about ten states and one union territory had members of the SPCB who lacked the requisite qualifications. The states were Himachal Pradesh, Sikkim, Tamil Nadu, Uttarakhand, Kerala, Rajasthan, Telengana, Haryana, Maharashtra and Manipur.

On June 8 this year, the NGT directed the chairpersons of these ten SPCBs to give up their duties, as their appointment did not comply with its August 2016 judgment. In August 2016, it had laid down several guidelines in this case to ensure that the composition of SPCBs and the qualifications of persons appointed as chairpersons and member secretaries are in compliance with the letter and spirit of the law. Many states appealed against this judgment in the Supreme Court.

Supreme Court of India. Credit: Reuters

Supreme Court of India. Credit: Reuters

The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 require that the chairperson of an SPCB must have “special knowledge or practical experience in respect of matters relating to environmental protection”. The member secretaries of SPCBs, likewise, are required to possess qualification, knowledge and experience of scientific, engineering or management aspects of pollution control, and must be engaged on a full-time basis.

The central government has time and again requested state governments to appoint people who could add value and stature to SPCB,s and utilise their expertise in preserving the environment.

In today’s judgment, the Supreme Court observed:

“The response of the State Governments in appointing professionals and experts to the SPCBs has been remarkably casual, despite many expert committees pointing out the need for it.  It is this chalta hai attitude that led the NGT to direct the State Governments to consider examining the appointment of the Chairperson and members of the SPCBs and determining whether their appointment deserves continuation or cancellation.”

However, despite agreeing with the NGT’s findings, the Supreme Court said it could not sustain its decision. The NGT’s jurisdiction is applied only when there is a substantial question relating to the environment and that question must arise in a dispute – it should not be an academic question, the Supreme Court held.  There must also be a claimant raising a dispute which the NGT can settle by the granting relief – which could be in the nature of compensation, restitution of property damaged, restitution of the environment or any other incidental or ancillary relief, the court added.

The appointment of chairpersons and members of SPCBs cannot be classified as a substantial question relating to the environment, the court said. At best, it could be a substantial question relating to their appointment.

The appointments are not “disputes” as such or even disputes for the purposes of the NGT Act. They could be disputes for a constitutional court to resolve through a writ of quo warranto, but certainly not for the NGT to venture into, the court said, while explaining why the NGT could have asked the petitioner to approach the Supreme  Court for relief.

The failure of state governments to appoint professional and experienced people to key positions in SPCBs – or the failure to appoint any person at all – might incidentally result in the ineffective implementation of the Water Act and the Air Act, but this cannot be classified as a primary dispute over which the NGT would have jurisdiction, the Supreme Court held, taking a narrow view of the NGT Act.

“While we appreciate the anxiety of the NGT to preserve and protect the environment as a part of its statutory functions, we cannot extend these concepts to the extent of enabling the NGT to consider who should be appointed as a chairperson or a member of any SPCB or who should not be so appointed,” the Supreme Court added.

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“Some states have implemented the NGT order and removed some members, while others have approached the Supreme Court and obtained an interim stay order. Those officials who were removed pursuant to the order of the NGT (including the appellant Techi Tagi Tara in this case) have an independent cause of action and we leave it open to them to challenge their removal in appropriate and independent proceedings.  This is an issue between the removed official and the state dovernment – the removal is not a public interest issue and we cannot reverse the situation,” the bench held.

Indicting the state governments for their apathy, the bench held:

“There should be considerable deliberation before an appointment is made, and only the best should be appointed to the SPCB.  It is beyond our jurisdiction to lay down specific rules and guidelines for recruitment of Chairperson and members of the SPCBs. It is necessary  for the Executive to consider and frame appropriate rules for the appointment of such persons who would add luster and value to the SPCB.

The State Government does not have unlimited discretion or power to appoint anybody that it chooses to do.  The credibility of an institution is founded upon the faith of the common man in its proper functioning.  The faith would be eroded and confidence destroyed if it appears that the officials act subjectively and not objectively or that their actions are suspect.  The SPCBs should be enabled to make independent decisions, free from political interference.  The chairperson of the SPCB should be a full-time appointee for a period of five years, and the Member-Secretary of the SPCB should also be appointed for a period of five years.”

Echoing the NGT’s ruling, even while disagreeing with its jurisdiction, the Supreme Court observed:

“The SPCBs continue to be manned by persons who do not necessarily have the necessary expertise or professional experience to address the issues for which the SPCBs were established by law. 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.”

The judgment may be construed as a setback to the NGT’s jurisdiction and powers, but both the NGT and the activist-petitioner before it have reasons to be happy about the final outcome. The Supreme Court has facilitated legal challenges to wrong appointments to SPCBs in the high courts if states continue to ignore the relevant legal provisions and its own directives.

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