JUDGMENT 1. - The most vital question that comes up for consideration in this writ petition is whether the High Court can direct the State Government to lay down the procedure for filling the post of Member Secretary of the Rajasthan Pollution Control Board? 2. The petitioners challenge the action of the State Government in appointing the Additional Chief Engineer of Public Health Engineering Department (for short the PHED) as a Member Secretary of Rajasthan State Pollution Control Board (for short the Board). Grievance of the petitioners set out in the writ petition is that the State Government has never taken care of amendment made in the Water (Prevention and Control of Pollution) Act, 1974 (for short the Act of 1974) in respect of appointment of Member Secretary of the Board. After amendment in section 4(2)(f) of the Act of 1974 introduced in the year 1988 a Member Secretary must possess qualification, knowledge and experience of Scientific, Engineering or Management aspects of Pollution control but as a matter of routine the post of Member Secretary has been considered to be filled from Additional Chief Engineers of PHED. The petitioners, therefore, have made following prayers: (i) Respondents be directed to fill the post of Member Secretary of the Board strictly in accordance with section 4(2)(f) of the Act of 1974. (ii) Respondents be restrained from making any appointment/posting of Additional Chief Engineer from PHED as Member Secretary. (iii) Respondents be directed to lay down the procedure for filling the post of Member Secretary. 3. The State of Rajasthan (respondent No.1) in its reply averred that the Member Secretary to the Board in an encadered post of PHED and the officials of the PHED is always being appointed as Member Secretary to fill up the said encadered post and the said decision was taken by the State Government keeping in mind the various aspects including the aspect that the person having full know how about the clean water including the system of sewage etc. is required to be deputed for the purpose of Public Health Engineering is found to be essential aspect regarding control of pollution. This position is prevalent for more than 20 years. is required to be deputed for the purpose of Public Health Engineering is found to be essential aspect regarding control of pollution. This position is prevalent for more than 20 years. The writ petition is premature as according to the petitioners themselves the person is yet to be deputed on the post of Member Secretary and it cannot be presumed by the petitioners that the officials so appointed would not be fulfilling the requirements of the Act and under such apprehension not to appoint the officials of the PHED as Member Secretary. 4. The Rajasthan Pollution Control Board, respondent No.2, also submitted a reply and prayed that the State of Rajasthan be directed to only appoint the person who possess special qualifications, knowledge and experience of Scientific, environmental Engineering and Management aspects of pollution control as contemplated under the provisions of Section 4(2)(f) of Act of 1974 so as to ensure and help in protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property and to provide for the protection and improvement of environment in the State of Rajasthan and further State Government be directed not to depute person from the PHED as they are not supposed to possess the qualifications, knowledge and experience of Scientific, Engineering or Management aspects of pollution control as required under the provisions of section 4(2)(f) of the aforesaid Act. 5. The Department of Environment, Govt. of Rajasthan, respondent No.3 has submitted reply to the writ petition stating therein that the respondent No.3 will take into consideration the aspect that the Member Secretary of the Board must possess rich diversified experience relating Scientific. Engineering or Management aspect of pollution control. 6. Mr. 5. The Department of Environment, Govt. of Rajasthan, respondent No.3 has submitted reply to the writ petition stating therein that the respondent No.3 will take into consideration the aspect that the Member Secretary of the Board must possess rich diversified experience relating Scientific. Engineering or Management aspect of pollution control. 6. Mr. Ajay Rastogi, learned counsel appearing for the petitioners vehemently contended that highly and complex technical powers are available with the Member Secretary and in the absence of the qualifications and eligibility prescribed under the Act of 1974, it is not at all possible for a Member Secretary to discharge the same but the State Government has never examined this aspect of the matter inspite of the representations made by the petitioners and in routine the officers who are of the rank of Additional Chief Engineer from the PHED are appointed as Member Secretary, which is wholly illegal, arbitrary and such action is in dear violation of Article 14 of the Constitution of India and also violative of Section 4(2)(f) of the Act of 1974. It is next contended that the State Government has not framed any rules and regulations/ procedures for making appointment to the post of Member Secretary and the same has been filled in complete arbitrary fashion without examining the object with which the amendment was made in the year 1988 laying down the conditions of eligibility. If such like practice is allowed to be continued it will be a total illegality on its part. It was also contended that the petitioners 2 to 10 are eligible to be considered for the post of Member Secretary. 7. On the other hand, Mr. Manish Bhandari, learned counsel appearing for the respondent No.1, canvassed that the provisions contained in Section 4(2)(f) of the Act of 1974 have not been violated by the State of Rajasthan. Vide letter dated March 25, 1977 sanction of the Governor was accorded to the creation of a temporary post of Additional Chief Engineer in the Public Health Engineering Department Rajasthan, Jaipur for being placed on deputation as Member Secretary with the Water Pollution Control Board with effect from the date it is filled in. The post was temporary addition to the cadre strength of the service. It was also argued that this court under Article 226 of the Constitution cannot direct the State Government to frame statutory Rules. The post was temporary addition to the cadre strength of the service. It was also argued that this court under Article 226 of the Constitution cannot direct the State Government to frame statutory Rules. Reliance was placed on (1) Mallikarjuna Rao and others v. State of Andhra Pradesh and others (1990) 2 SCC 707 and (2) Asif Hameed and others v. State of Jammu and Kashmir and others (1989 Supp. (2) SCC 364) . 8. Mr. Inderjeet Singh, learned counsel appearing for the respondent No.3 urged that the provisions contained in Section 4(2)(f) of the Act of 1974 have not been flouted and while making appointment on the post of Member Secretary the said provisions shall be looked into. 9. I have pondered over the rival submissions and carefully weighed the material on record as well as legal position. 10. Section 4(2)(f) of the Act of 1974 provides as under "4. Constitution of State Boards:-(1) The State Government shall, with effect from such date as it may, by notification in the official Gazette, appoint, constitute a State Pollution Control 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. (2) A State Board shall consist of the following members namely : (a) xx (b) xx (c) xx (d) xx (e) xx (f) a full time member-secretary possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government." 11. The above section was amended by the Amendment Act 53 of 1988 in the original enacted Act of 1974. In the original enacted Act of 1974 section 4(2)(f) was as under : "A full time Member Secretary, qualified in Public Health Engineering to be appointed by the State Government." 12. Thereafter in 1978 amendment in Section 4(2)(f) was made as under:- "A full time Member Secretary, qualified in Public Health Engineering and having practical experience in matter relating to environmental protection to be appointed by the State Government." 13. Admittedly after amendment in Section 4(2)(f) in 1988, Member Secretary of the Board shall be a person who possess qualifications, knowledge and experience of Scientific, Engineering or Management aspects of Pollution Control. Admittedly after amendment in Section 4(2)(f) in 1988, Member Secretary of the Board shall be a person who possess qualifications, knowledge and experience of Scientific, Engineering or Management aspects of Pollution Control. Notification dated March 25, 1977 whereby the sanction of the Governor was accorded to the creation of temporary post of Additional Chief Engineer in the Public Health Engineering Department Rajasthan for being placed on deputation as Member Secretary with the Water Pollution Control Board was issued before the introduction of Amendment in 1988. 14. Staff Appraisal Report of Indian Industrial Pollution Prevention Project dated June 9, 1994 has been placed before me. Para 4(e) of the said report relates to Organization of the State Boards, it reads as under : "(e) Inappropriate and inadequate staffing. In many Boards, the Member Secretary and some of the senior staff are often on secondment from outside agencies like the Public Health Engineering Department (PHED). The background of an expert from PHED is only in water treatment and supply systems and is not commensurate with the wider expertise monitoring visits to be performed by trained inspectors with experience in the operation of the industries that are inspecting so that they can examine the factory floor management, process practices and waste treatment practices, provide useful advice to factory managers, and collect samples at relevant locations. In general, the legal function of the Boards need to be strengthened, as there is often no full time legal advisor. To compound the problems, job descriptions are hardly prepared, and job allocation is usually ad hoc. While staffing gaps have been largely overcome in many Boards, some of them have not been able to fill their sanctioned positions, hampered by the cumbersome recruitment procedures that they have to follow. The suggested staffing pattern provides for adequate number of scientific staff at the Regional laboratories for analysis work and sampling staff at the District offices." 15. Section 64 of the Act of 1974 provides that the State Government may simultaneously with the constitution of the State Board make rules to carry out the purposes of this Act. But according to the petitioners no such Rule have been framed and request is made that the respondent State of Rajasthan be directed to lay down the procedure for appointment including the post of Member Secretary. But according to the petitioners no such Rule have been framed and request is made that the respondent State of Rajasthan be directed to lay down the procedure for appointment including the post of Member Secretary. I am afraid I cannot issue direction to the State Government to frame Rules or procedure under Section 64 in the Act of 1974. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive provided these authorities do not transgress their constitutional limits or statutory powers. 16. In Asif Hameed and others v. State of Jammu and Kashmir and others (supra) their Lordships of the Supreme Court propounded thus - "Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. NO organ can usurp the functions assigned to another. Legislature and executive, the two facets of people's will, have all the powers including that of finance. Judiciary has no power over sword or the purse; none the less it has power to ensure that the aforesaid two main organs of State function within the constitutional limits and if it is not so the court must strike down the action. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on court's own exercise of power is the self imposed discipline of judicial restraint." 17. In Mallikarjuna Rao v. State of A.P. (supra) their Lordships of the Supreme Court indicated thus- "11. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. In Mallikarjuna Rao v. State of A.P. (supra) their Lordships of the Supreme Court indicated thus- "11. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word "advisable" while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice." 18. The respondent State of Rajasthan is expected to appoint a person as Member Secretary of the Board who possess the special qualifications, knowledge and experience of Scientific, Engineering or Management aspects of pollution control as provided in Section 4(2)(f) of the Act of 1974. In so far as framing of the Rules under section 64 of the Act of 1974 is concerned, the petitioners are at liberty to approach the State Government in this regard. Till such Rules are framed the State Government if it so chooses may form a Committee of three Experts in order to check arbitrariness in making appointment to the post of Member Secretary. 19. The writ petition stands disposed of as indicated above. Costs easy.Petition disposed of. *******