Radhika Ranjan Choudhury v. State of Assam and Another
1996-10-10
D.N.BARUAH, N.SURJAMANI SINGH
body1996
DigiLaw.ai
D. N. Baruah, J. This writ appeal is directed against the judgment and order dated 13.3.1 996 passed by the learned Single Judge in Civil Rule No. 5481 of 1995 dismissing the Civil Rule holding that the petitioner was appointed for a period of one year and that he had accepted the said appointment and having accepted the appointment he was estopped from questioning the validity of the appointment letter after a long time, just before the end of his term of appointment. 2. Facts for the purpose of disposal of this appeal are: The State Government by Annexure A notification to the writ appeal dated 31st August, 1994 reconstituted a Board for Prevention and Control of Water & Air Pollution, Assam in supersession of the notification issued vide No.STE. 126/85/115, dated 12.4.94 with the persons mentioned in the said notification as Chairman, Members and Member Secretary of the Board with effect from 1.9.94 until further orders in exercise of the power conferred by section 4 and 5 of the Water (Prevention and Control of Pollution) Act, 1994 (for short the Act). 3. At the relevant time the appellant-petitioner was a Government Officer holding the office of Commissioner and Secretary to the Government of Assam, Public Health Engineering. After the Annexure A notification was issued, vide Annexure to the writ appeal another notification was issued in the name of the Governor on the same day. As per the said notification, the Governor of Assam was pleased to allow the appellant who was the then Commissioner and Secretary to the Govt of Assam, Public Health Engineering Department to hold full charge of the post of Chairman, Assam Pollution Control Board with effect from 31.8.1994 in addition to his duties until further orders. Subsequent to the Annexure notification, Annexure C notification was issued by the Government dated 20th April, 1995 appointing the appellant Chairman, Assam Pollution Control Board for a period of one year with effect from 1.9.95. During the period of this appointment his pay would be regulated as per provision of Rule 165 of the Assam Services (Pension) Rules, 1969. The appellant took over charge and functioned as Chairman of the Board immediately after constitution of the Board as per Annexure A and he continued as such and, thereafter, the Annexure C notification was issued.
During the period of this appointment his pay would be regulated as per provision of Rule 165 of the Assam Services (Pension) Rules, 1969. The appellant took over charge and functioned as Chairman of the Board immediately after constitution of the Board as per Annexure A and he continued as such and, thereafter, the Annexure C notification was issued. By issuing a fresh order of appointment after about 8 months curtailing the period to one year, the petitioner challenged the said order claiming that as per law he was entitled to continue Chairman of the Board for a period mentioned under section 5 of the Act, and, therefore, according to the appellant the Annexure C order was illegal, without jurisdiction and contrary to the provisions of law. The appellant-petitioner, therefore, approached this Court by filing the aforesaid Civil Rule challenging the validity of the Annexure C order of appointment and prayed for quashing the said order and for any other relief which the petitioner was entitled to. 4. Learned Single Judge after hearing the parties, dismissed the Civil Rule by holding that he was allowed to hold the post in the capacity of an employee under the Government (Commissioner and Secretary to the Govt of Assam, Public Health Engineering). On the date of his superannuation he was thereafter appointed Chairman on contract and this contract between the parties did not confer any right when the terms of appointment were specific and clear and which had been accepted by the appellant himself. The learned Single Judge further observed that the provisions of section 5 of the Act would not be applicable as he had accepted the said appointment. It was also observed by the learned Single Judge that the appellant's earlier appointment as Chairman was conditional by which, the .Government preferred to allow him to hold the post for a specific period. It was also further observed that from the nature of the appointment of the petitioner, it could be said that the Government has appointed him on administrative exigencies outside the purview of the Act and as the petitioner accepted the offer of appointment as it was, he was estopped from questioning the validity of the appointment letter after a lapse of long time i.e. just before the end of his term of appointment. 5.
5. During the course of hearing on 30.5.96, the appellant came to know that during the pendency of the appeal, appointment had been made and, accordingly, an application was filed which was registered as Misc Case No.688 of 1996 to implead the newly appointed Chairman as a party respondent because the appellant felt that in order to adjudicate the matter, impleading the name of the newly appointed person would be necessary. Accordingly, an order was passed to implead the newly appointed Chairman, Pollution Control Board, Assam Shri S. Monoharan as respondent No.3. Notices were also issued to the newly added respondent by registered post as well as by personal service. The appellant has filed an application supported by an affidavit stating that the notice was served upon the 3rd respondent and he acknowledge the receipt. In view of the above it shall be deemed that notice has been served. However, the 3rd respondent has not entered appearance. 6. We have heard the learned counsel on both sides. 7. Mr. NM Lahiri, learned senior counsel assisted by Mr. C. Baruah, learned counsel for the appellant submits before us that the appellant-petitioner was made Chairman as per Annexure A while constituting the State Board under the Act and thereafter the Annexure order allowing him to hold charge is absolutely unwarranted and contrary to the provision of law. After constitution of the Board, the Chairman of the Board is to continue for a period of 3 years. However, under the provisions of the Act, a member or a Chairman may be removed from the Board in the manner prescribed. Fresh appointment by Annexure C order dated 20.4.95 by which the period was reduced from three years as per section 5 of the Act, according to the learned counsel for the petitioner was illegal, without jurisdiction and contrary to the provisions of law. 8. Mr. PG Baruah, learned Advocate General, on the other hand has submitted that by Annexure A notification only the Board was constituted and, thereafter by Annexure the petitioner was directed to hold charge. In fact, there was no appointment of the appellant as a Chairman of the Board until the Annexure C notification was issued and this order of appointment was accepted by th« appellant and therefore he was not competent to challenge the said appointment. Mr.
In fact, there was no appointment of the appellant as a Chairman of the Board until the Annexure C notification was issued and this order of appointment was accepted by th« appellant and therefore he was not competent to challenge the said appointment. Mr. Baruah further submits that the appointment after the constitution of the Board was in terms of section 4 and such appointment of the Chairman of the Board would be necessary and accordingly the order of appointment was issued. 9. On the rival contention of the parties, it is to be seen whether the Annexure C order of appointment can sustain in law. Before we consider the aspect of the matter it will be apposite for us to look to some of the provisions of the Act. 10. Section 2 (a) defines 'Board'. As per the said definition, 'Board' means Central Board or a State Board. Central Board can be constituted in the manner prescribed under section 3. Section 4 envisages the procedure for the Constitution of State Boards. Sub-section (1) of section 4 of the Act empowers the State Govt to appoint or constitute a State Board. The section 4 (1) is extracted below : "4. (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." 11. Under sub-section (2) of section 4 a Board shall consist of the members mentioned in sub-section (2) (a) to (f). Sub-section (2) (a) deals with the requisite qualifications of the Chairman. 12. Except the Member-Secretary mentioned in section 4 (2) (a) to (e) all the members including the Chairman are nominated by the State Government. Only the full time Member-Secretary as referred to in section 4 are to be appointed by the State Government. As per sub-section (3) of section 4 of the Act every State Board shall be a body corporate with the name specific 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 used.
Section 5 deals with the terms and conditions of the service of the members. Under section 5 (1) 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. However, proviso to the said section 5 (1) a member may continue to hold office until his successor enters into his office. Sub-section (2) of section 5 provides the term of office of a member of a Board nominated under clause (b) or clause (c) of sub-section (2) of section or clause (b) or clause (c) of sub-section (2) of section 4 shall come to an end as soon as he ceases to hold the office under the Central Government or the State Government. From the reading of section 4 and 5, it is clear that the Chairman being a member of the Board, shall in the office for a period of 3 years which may, however, be extended for a further time till the next incumbent takes charge. As per the section mentioned above it is clear that the members nominated under section 3 (2) (b) and (c) and under section 4 (2) (b) (c) cannot continue to hold the office of the members of the Board after he, or they cease to be a Government employee but it is not so in case of a Chairman who is appointed under section 4 (2) (a). 13. Before we consider further in respect of this matter, it is now to be seen how a 'Board' is constituted and actually what the expression 'Board' means. As mentioned earlier, 'Board' has been defined under section 2 (a) as the State Board or Central Board under the Act. But actually what is the meaning of the Board has not been defined in the Act. 14. Dictionary meaning of the Board, as we find from Black's Law Dictionary, 5th Edition, the Board means "an official or representative body organized to perform a trust or to execute official or representative functions or having the management of a public office or department exercising administrative or Governmental functions. It is also said that the Board means; organisation under the authority of law in order to exercise certain authorities, have oversight or control of certain matters, or discharge certain functions of a magisterial, representative or fiduciary character. 15.
It is also said that the Board means; organisation under the authority of law in order to exercise certain authorities, have oversight or control of certain matters, or discharge certain functions of a magisterial, representative or fiduciary character. 15. From the above, it is very clear that a Board does not mean only the name of the Board. It also includes the group of persons entrusted to do a particular job. In this case from section 4(1) quoted above, it is very clear that the State Government is empowered to appoint, constitute a State Board. Subsection (2) of section 4 refer with persons as members of the said Board. Chairman is one of the said members of the said Board. Therefore, the constitution or appointment of the Board will also include members including the Chairman. If we look to Annexure A notification dated 31st August, 1994, we find that the State Government constituted the Board with the Chairman and members as envisaged under sub-section (2) (a) to (f). If the constitution of the Board includes the members in our opinion, no further appointment would be necessary. The constitution itself was sufficeint and the conditions of service of the members shall be governed as envisaged under section 5 of the Act. In that view of the matter, the subsequent orders will have no effect inasmuch as those are redundant. Therefore, subsequent orders, namely, Annexure and C have no force as those are otiose. 16. In view of the notification dated 13th August, 1994 (Annexure A), the appellant petitioner was made Chairman at the time of the constitution of the Board and he shall continue to hold office for a period of 3 years as referred to under section 5 (1) of the Act and the period of his Chairmanship cannot be curtailed by Annexure C as we have already held that no separate order of appointment is necessary for the Chairman or other members mentioned under section 4 (2) (a) to (e). Therefore, we do not find any force in the submission of Mr. Baruah, learned Advocate General, that the acceptance of the appointment as per Annexure C estopped the petitioner to approach this Court challenging the order of appointment besides there cannot be any estoppel against the provisions of a statute in the present facts and circumstances of the case. 17. Mr.
Baruah, learned Advocate General, that the acceptance of the appointment as per Annexure C estopped the petitioner to approach this Court challenging the order of appointment besides there cannot be any estoppel against the provisions of a statute in the present facts and circumstances of the case. 17. Mr. Baruah, learned Advocate General, also submits that Annexure A order was a conditional notification inasmuch as it was to continue until further order. We have noticed the conditions imposed in Annexure A. It is true that the constitution of the Board was until further order. In the present case, from the facts and circumstances of the case, we find that the present Board has not been dissolved. The Board constituted as per Annexure A, was still continuing on the date when the Annexure C was issued. In our opinion, the State Government has the power to constitute the Board and as per section 5, the term is prescribed and as such, the Government cannot alter the period of the term under the Government orders as mentioned above. Settled principle of law is that when a statute prescribes a particular manner in doing a particular thing, it must be done in the same manner or not as all. 18. It is also well settled that if any order is passed incorporating certain conditions which are repugnant to the provisions of law, the order shall be valid, however, without the condition which is repugnant to the law. The order will be accepted without the condition. 19. In view of the above, we find if difficult to accept the conclusions arrived at by the learned Single Judge and, accordingly, we respectfully disagree with the conclusion; set aside the judgment and order passed by the learned Single Judge and also quash the Annexure and C and also subsequent appointment made in favour of the respondent No.3. The appellant-petitioner shall continue to hold the post of Chairman for a period of 3 years from the date of his nomination as per Annexure A to the writ appeal. 20. For the aforesaid reasons, this appeal is allowed. However, in the entire facts and circumstances of the case, we make no order as to costs.