LAWS(SIK)-2022-9-16

GHANASHYAM SHARMA Vs. STATE OF SIKKIM

Decided On September 30, 2022
GHANASHYAM SHARMA Appellant
V/S
STATE OF SIKKIM Respondents

JUDGEMENT

(1.) (i). The Petitioner assails the appointment of the Respondent No.4 as Chairperson of the State Pollution Control Board (hereinafter, "the Board"), vide Notification No.27/Home/ 2020, dtd. 17/4/2020, on grounds that the Committee which conducted the interview was per se illegal being in violation of Rule 12 of the Sikkim Water (Prevention and Control of Pollution) Amendment Rules, 2017 (hereinafter, "2017 Rules"). The prayers being pressed in the instant Writ Petition are for issuance of an Order/declaration that the Selection Committee constituted for selection of the Chairperson by the interview dtd. 15/3/2020 is illegal and to issue an Order quashing the Notification dated 17-04-2020, as obtains in prayers "d" and "e" of the Writ Petition.

(2.) Learned Counsel for the Petitioner advancing his arguments contended that the presence of the Special Secretary, DOP as a Member of the Committee, instead of the Secretary, DOP as mandated by the Rules, has created a legal infirmity in the constitution of the Selection Committee, which cannot be cured. That, the constitution of the Committee is required to follow the Statute and the appointment of the Respondent No.4 having been made on the basis of a non est Committee, is liable to be quashed. That, the 2016 Rules and 2017 Rules were inserted as per the directions of the National Green Tribunal in its Judgment dtd. 24.8.2016 1 making it incumbent upon the Respondent Nos.1, 2 and 3 to abide by it. That, the principle of estoppel is not applicable in the instant matter, as the Petitioner was unaware of the composition of the Committee on the day of interview. Reliance was placed on Dr. (Major) Meeta Sahai v. State of Bihar and Others (2019) 20 SCC 17 which ratio has been reiterated in Krishna Rai (Dead) through Lrs and Others v. Banaras Hindu University through Registrar and Others 2022 SCC OnLine SC 750. To fortify his submission that the requirement of a Statute has to be fulfilled, strength was drawn from Competent Authority v. Barangore Jute Factory and Others (2005) 13 SCC 477. It was urged that the Executive cannot override a Statute, towards which reliance was placed on Dr. Raghavendra H.K. v. State of Karnataka and Others 2021 SCC OnLine Kar 264. Reiterating that the appointment based on the recommendation of an illegal Committee ought to be set aside, strength was drawn from the ratio in Dr. Triloki Nath Singh v. Dr. Bhagwan Din Misra and Others (1990) 4 SCC 510. Hence, it was prayed that the offending Notification be quashed and the Selection Committee declared illegal.

(3.) Vehemently refuting the arguments put forth by the Petitioner, Learned Additional Advocate General appearing for the Respondents Nos.1, 2 and 3 submitted that the question would be whether the Selection Committee would be illegal merely by virtue of the Special Secretary being part of the Committee, considering that she was an equally qualified Officer along with other Members of the Committee and thereby eligible to be a part of the Committee. It was next urged that assuming such infirmity occurred it can be cured by disregarding the marks allotted by the Special Secretary to all the candidates and collating only the marks given by the other Members. That, the result in any event would not see any alteration as the Respondent No.4 had obtained the highest marks. That apart, the Rules do not specify any Quorum for the Committee, consequently the Special Secretary could well be included or excluded from the Committee towards which reliance was placed on Shri Ishwar Chandra v. Shri Satyanarain Sinha and Others (1972) 3 SCC 383. Besides as held in Dr. (Major) Meeta Sahai (supra) the Petitioner having participated in the interview is estopped from assailing the process of the interview. It was next urged that the advertisement for the post impugned was issued on 4/6/2019, the interview was held on 15/3/2020, the appointment order issued on 17/4/2020. When the Petitioner appeared for the interview he did not object to the presence of the Special Secretary. On 30/4/2020, post the appointment order of Respondent No.4, the Petitioner made a representation to the Hon'ble Chief Minister and on the same day he also filed an application under the Right to Information Act which reveals that he was not only disgruntled with his failure but was also aware of the amendments made to the Rules and the constitution of the Panel. To fortify the submissions the ratio in Madras Institute of Development Studies and Another v. K. Sivasubramaniyan and Others (2016) 1 SCC 454 was relied upon. That, the time line of the matter is also to be taken into consideration from the date of interview till the filing of the Writ Petition rendering the Petitioner guilty of delay and laches, hence the Petition deserves a dismissal.