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Full Case Details
- This batch of appeals is directed against the judgment and
order dated 24th August, 2016 passed by the National Green Tribunal, Principal
Bench, New Delhi (for short ‘the NGT’) in Original Application No. 318 of 2013.1
On a reading of the judgment and order passed by the NGT, it is quite clear that the
Tribunal was perturbed and anguished that some persons appointed to the State
Pollution Control Boards (for short ‘SPCBs’) did not have, according to the NGT, the
necessary expertise or qualifications to be members or chairpersons of such high
powered and specialized statutory bodies and therefore did not deserve their
appointment or nomination. While we fully commiserate with the NGT and share the
pain and anguish, we are of the view that the Tribunal has, at law, exceeded its
jurisdiction in directing the State Governments to reconsider the appointments and in
laying down guidelines for appointment to the SPCBs, however well-meaning they
might be. Therefore, we set aside the decision of the NGT, but note that a large
number of disconcerting facts have been brought out in the judgment which need
serious consideration by those in authority, particularly the State Governments that
make appointments or nominations to the SPCBs. Such appointments should not be
made casually or without due application of mind considering the duties, functions
and responsibilities of the SPCBs. - Keeping all these facts and the recalcitrance of the State Governments in mind, the
NGT examined the expertise and qualifications of members of the SPCB of almost all
States and prima facie found that about ten States and one Union Territory had
members in the SPCB who lacked the qualifications suggested by the Central
Government. - At this stage, it must be mentioned that apart from the Central Government, there
are several authorities that have applied their mind to the issue of appointment of
members of the SPCBs. These include Expert Committees such as the Bhattacharya
Committee of 1984, the Belliappa Committee of 1990, the Administrative Staff
College of India Study of 1994 and a Committee chaired by Prof. M.G.K. Menon.
Notwithstanding this, the response of the State Governments in appointing
professionals and experts to the SPCBs has been remarkably casual. It is this chalta
hai attitude that led the NGT to direct the State Governments to consider examining
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the appointment of the Chairperson and members in the SPCBs and determining
whether their appointment deserves continuation or cancellation. Thereafter the NGT
gave several guidelines that ought to be followed in making appointments to the
SPCBs. - The objection of the appellants is to: (i) the exercise of jurisdiction by the NGT in
directing the State Governments to reconsider the appointment of the Chairperson and
members of the SPCBs; and (ii) laying down guidelines for appointment of the
Chairperson and members of the SPCBs. - As regard the first grievance, it is contended that the appointment or removal of
members of the SPCBs does not lie within the statutory jurisdiction of the NGT. Our
attention has been drawn to some provisions of the National Green Tribunal Act, 2010
(for short ‘the Act’)…This provision cannot be read in isolation but must be read in
conjunction with Section 15 of the Act which relates to relief, compensation and
restitution as being broadly the directions that can be issued by the NGT… Finally, it
is important to refer to Section 2(m) of the Act… - On a combined reading of all these provisions, it is clear to us that there must be a
substantial question relating to the environment and that question must arise in a
dispute – it should not be an academic question. There must also be a claimant raising
that dispute which dispute is capable of settlement by the NGT by the grant of some
relief which could be in the nature of compensation or restitution of property damaged
or restitution of the environment and any other incidental or ancillary relief connected
therewith. - The appointment of the Chairperson and members of the SPCBs cannot be
classified in any circumstance as a substantial question relating to the environment. At
best it could be a substantial question relating to their appointment. Moreover, their
appointment is not a dispute as one would normally understand it. In Prabhakar v.
Joint Director, Sericulture Department8 the following ‘definition’ of dispute was
noted in paragraphs 34 and 35 of the Report:
“34. To understand the meaning of the word “dispute”, it would be appropriate to start
with the grammatical or dictionary meaning of the term:
“‘Dispute’.—to argue about, to contend for, to oppose by argument, to call in question
— to argue or debate (with, about or over) — a contest with words; an argument; a
debate; a quarrel;” - Black’s Law Dictionary, 5th Edn., p. 424 defines “dispute” as under:
“Dispute.—A conflict or controversy; a conflict of claims or rights; an assertion of a
right, claim, or demand on one side, met by contrary claims or allegations on the other.
The subject of litigation; the matter for which a suit is brought and upon which issue is
joined, and in relation to which jurors are called and witnesses examined.”
234 - As far as we are concerned, in the context of the Act, a dispute would be the
assertion of a right or an interest or a claim met by contrary claims on the other side.
In other words, the dispute must be one of substance and not of form and it appears to
us that the appointments that we are concerned with are not ‘disputes’ as such or even
disputes for the purposes of the 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 failure of the State Government to appoint professional and experienced
persons to key positions in the SPCBs or the failure to appoint any person at all might
incidentally result in an 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. Such a failure might be of a statutory obligation over which, in the
present context and not universally, only a constitutional court would have
jurisdiction and not a statutory body like the NGT. 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. - Additionally, no relief as postulated by Section 15 of the Act could be granted to a
claimant, assuming that a substantial question relating to the environment does arise
and that a dispute does exist. - It appears to us that the NGT realized its limitations in this regard and therefore
issued a direction to the State Governments to reconsider the appointments already
been made, but the seminal issue is really whether the NGT could at all have
entertained a claim of the nature that was raised. For reasons given above, the answer
must be in the negative and it would have been more appropriate for the NGT to have
required the claimant to approach a constitutional court for the relief prayed for in the
original application. To this extent therefore, the direction given by the NGT must be
set aside as being without jurisdiction. However, we have been told that some States
have implemented the order of the NGT and removed some members while others
have approached this 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) 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 Government – the removal is not a public interest
issue and we cannot reverse the situation. - On the second grievance relating to the issue of guidelines by the NGT, the meat
of the matter concerns the appointment of officials who are experts in their field and
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are otherwise professional. This is for each State Government to consider and decide
what is the right thing to do under the circumstances – should an unqualified or
inexperienced person be appointed or should the SPCB be a representative but expert
body? The Water Act and the Air Act as well as the Constitution give ample guidance
in this regard. We have already adverted to the provisions of the Constitution
including Article 48A, Article 51A(g) and Article 21 of the Constitution. So, the
entire scheme of the various provisions of the
Constitution adverted to above, including the principles that have bee accepted and
adopted internationally as well as by this Court such as the principles of sustainable
development, public trust and intergenerational equity are a clear indication that in
matters relating to the protection and preservation of the environment (through the
appointment of officials to the SPCBs) the Central Government as well as the State
Governments have to walk the extra mile. Unfortunately, many of the State
Governments have not even taken the first step in that direction – hence the present
problem. - While it is beyond the jurisdiction of the NGT and also beyond our jurisdiction to
lay down specific rules and guidelines for recruitment of the Chairperson and
members of the SPCBs, we are of opinion that there should be considerable
deliberation before an appointment is made and only the best should be appointed to
the SPCB. It is necessary in this regard for the Executive to consider and frame
appropriate rules for the appointment of such persons who would add lustre and value
to the SPCB… - 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 longlasting. Unless 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 a writ of quo warranto if any person who
does not meet the statutory or constitutional requirements is appointed as a
Chairperson or a member of any SPCB or is presently continuing as such.
