Court No.2 Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition No. 141 of 2005 (S/B) C.V.S. Negi S/o late S.S.Negi, R/o 50-C Balbeer Road, District-Dehradun. .......... Petitioner Versus 1. State of Uttaranchal through Principal Secretary, Forest and Environment, Civil Secretariat, Dehradun. 2. Smt. Vibha Puri Das, Presently posted as Principal Secretary, Forest and Environment, Civil Secretariat Dehradun as also the Chair Person of Uttaranchal Environment Protection & Pollution Control Board. 3. Dr. R.S.Tolia, Presently posted as Chief Secretary, State of Uttaranchal, Civil Secretariat, Dehradun. 4. Dr. Ranveer Singh, Presently posted as Secretary, Environment, Civil Secretariat, Dehradun. 5. Oil and Natural Gas Corporation Ltd., Tel Bhawan, Dehradun through its Chairman, 6. Chief Secretary, State of Uttaranchal, Civil Secretariat, Dehradun. 7. Secretary, Environment, State of Uttaranchal, Civil Secretariat, Dehradun. .............. Respondents. Sri Akhilesh Kalra and Sri Paresh Tripathi, learned counsel for the petitioner. Sri Sudhanshu Dhulia, learned senior Advocate for respondent Nos. 2 & 3. Learned Standing Counsel for the respondent-State of Uttaranchal. Sri J.P.Joshi, learned counsel for the respondent/O.N.G.C. Date: March 28, 2006 2 Hon’ble P.C.Verma,J. Hon’ble B.C.Kandpal,J. (Delivered by Hon’ble P.C.Verma, J.) By means of this petition, the petitioner seeks writ of certiorari quashing the order dated 08.07.2005 passed by respondent No.1, contained in annexure No.1 to the writ petition as also writ or direction in the nature of mandamus commanding the respondents to allow the petitioner to continue as Member Secretary of Uttaranchal Environment Protection and Pollution Control Board and to complete his term of appointment. 2. The facts giving rise to this petition in brief are that the petitioner was working as Superintending Chemist (Environment), Corporate Safety and Environment Management Department of O.N.G.C., Tel Bhawan, Dehradun and was appointed as Member Secretary, Uttaranchal Pollution Control Board on deputation for a period of three years which was likely to be extended for a period of 5 years under the order dated 24.01.2003 passed by the respondent No.1. In compliance of the aforesaid order, the petitioner joined as Member Secretary, Uttaranchal Pollution Control Board on 02.04.2003. Later on, the name of the Board was changed to “Uttaranchal Environment Protection & Pollution Control Board” (hereinafter referred to as the Board). The petitioner was working as Member Secretary with his complete devotion and dedication to the Board and any shortcomings in the work and performance of the petitioner was pointed out or was reported to by the higher authorities. The petitioner made several allegations against Dr.R.S.Tolia, the then Chief Secretary, Government of Uttaranchal, Smt. Vibha Puri Das, 3 Principal Secretary, Forest and Environment, Civil Secretariat, Dehradun and Hon’ble Minister for Forest & Environment, State of Uttaranchal who was arrayed as respondent No.2 in the petition but later on, on 14.07.2005, his name was deleted by petitioner with the permission of the Court. One of the allegations made against the Chief Secretary/respondent is that a meeting was held on 12.05.2005 in his Chambers and the Chief Secretary, who was annoyed with the petitioner, as the petitioner did not allow the undue payments to Mr. Vipin Kumar to whom he was showing undue favour, shouted on the petitioner and ridiculed the petitioner in the presence of so many persons but the petitioner being a law abiding officer did not react. However, the petitioner submitted a representation dated 20.5.2005 to the Chief Secretary/ respondent clearly stating his grievances and also giving the achievements of the Board since the date petitioner took over as Member Secretary of the Board. It is also alleged that the impugned order has been passed on the dictates of the concerned Minister and Chief Secretary who directed the Principal Secretary, Forest & Environment who is also annoyed with the petitioner as the petitioner asked her that she cannot and she should not function as the Chairperson of the Board. The petitioner has been subjected to an extreme arbitrariness and high handedness by the respondents only with a view to achieve their oblique motives. 3. We heard the learned counsel for the parties and perused the affidavits exchanged between the parties as well as written arguments submitted by them. We first see the appointment letter, No.128/1 (2) Va. Gra. Vi./2003-13 (5)-2000 T.C. II, Dehradun, dated 4 24.01.2003 issued by the Uttaranchal Government, Forest and Environment Section – 2, English version of which is as under:- “NOTICE Appointment In exercise of powers conferred under Section 4 (2) (f) of Chapter II of Central Water (Prevention and Control of Pollution) Act, 1974 (as amended and under the prescribed procedure/conditions laid down vide Forest & Environment Section II State of Uttaranchal office memorandum-VIP-19(2) Va Gra Vi/2002 13 (5) / 2000 dated 16.08.2002 Sri C.V.S.Negi, Superintending Chemist (Environment) Corporate Safety and Environment Management, O.N.G.C. Tel Bhawan, Dehradun (Residential address- 511 Vijay Park Extension, lane No.3 Ballupur, Dehradun) is hereby appointed on the post of Member Secretary of Uttaranchal Pollution Control Board (pay scale of Rs. 16,400-450-20,000/-) on the basis of deputation from the date of the joining, on full time basis, for discharging the functions defined / mentioned in the said Act, under the following conditions:- 1. This appointment/posting is initially for a period of three years, which can be extended upto five years, but the State Government can terminate the said appointment even prior to that. 2. In addition to the aforesaid pay scale the said post holder shall also be entitled to other admissible allowances etc. payable by the State Government form time to time.” 4. The endorsement made in the letter of appointment issued to the petitioner, wherein it has been mentioned that the State Government can dispense with the services of the Member Secretary (petitioner) before the expiry of term, is relatable to sub-section (3) of Section 5 and sub section (2) of Section 6 of the Water Act. 5 5. Section 5 of the Water Act deals with the terms and conditions of service of members of the Board. Sub section (3) of Section 5, which is relevant in this case, reads as under:- “(3) The Central Government or, as the case may be, the State Government may, if it thinks fit, remove any member of a Board before the expiry of his term of office, after giving him a reasonable opportunity of showing cause against the same.” 6. Section 6 of the Water Act deals with the disqualifications of a member of the Board. Sub section (2) of Section 6, which is also relevant in this case, reads as under:- “(2) No order of removal shall be made by the Central Government or as the State Government, as the case may be, under this section unless the member concerned has been given a reasonable opportunity of showing cause against the same.” 7. Sub section (1) of Section 12 of the Water Act provides that the terms and conditions of services of Member Secretary shall be such as may be prescribed. 8. Section 2 of the Water Act gives the definition of various terms. Clause (f) of Section 2 describes “prescribed” in the context of the Act of 1974 means prescribed by Rules made under this Act by the State Government. Clause (f) is reproduced as under:- “(f) “prescribed” means prescribed by rules made under this Act by the Central Government or, as the case may be, the State Government;” 9. Learned counsel for the petitioner contended that the Water Act was not meeting the requirements to 6 prevent Air Pollution, hence the Air (Prevention & Control of Pollution) Act, 1981 (in short Air Act) was enacted and Clause (o) of Section 2 defines a State Board to mean a Board constituted under the Water Act and Section 4 of the Air Act provides that where in any State a Board is constituted under the Water (prevention & Control of Pollution) Act 1974 it would be deemed also to the Board under the Air Act Section 54 empowers the State to make Rules which were to govern the conditions of services of the Board which was deemed to be constituted both under the Water Act as also the Air Act. Chapter 6 of the Uttar Pradesh Air (Prevention & Control of Pollution) Rules, 1983 set out the terms and conditions of the services of the Member Secretary of the State Board. Chapter 6 of the aforesaid Air Act reads as under:- “17. (1) The Member Secretary shall be paid a monthly pay as prescribed by the Government. (2) The other terms and conditions of service of the Member Secretary including allowances payable to him, shall as far as possible, be the same as are applicable to an officer of the correspondent status of the State Government. (3) Where a Government servant is appointed as Member Secretary the terms and conditions of his service shall be regulated by the rules or orders of the State Government issued from time to time relating generally to appointments in Foreign Service. (4) The Member Secretary shall be entitled to travel by air or air-conditioned class of the railway. 18. (1) The Member Secretary shall be the Chief Executive of the Board and shall subject to the over all control of the Chairman, exercises his powers and performs his duties. 7 (2) Subject to the provision of sub-rule (1) the Member Secretary shall, inter alia:- (i) be incharge of all the confidential papers of the Board and shall be responsible for prescribing them, (ii) Produce papers whenever so directed by the Chairman or by the Board, (iii) Make available to any member of the Board, for his perusal, any record of the Board, (iv) Be entitled to call for services of any officer or employee of the Board and the papers and documents for study and for checking, including checking of accounts, vouchers, bills stores and other records pertaining to the Board or regional office under it, (v) Make all arrangements for holding meetings of the Board and meetings of the committees constituted by the Board, (vi) Issue all orders or instruction, to be issued by the Board, (vii) Write or shall cause to be written confidential repots of the offices and staff of the State Board and shall, in case of Group I officers get them countersigned, by the Chairman. (viii) Make suitable arrangement for the appropriate maintenance of the confidential reports and the custody thereof, (ix) Sanction the annual increments of officers and staff. so however that the increment of officer belonging to Group I shall not be withheld without prior approval of the Chairman, (x) Have full powers for according technical sanction to all estimates, 8 (xi) Have all powers to implement the Act effectively, (xii) Exercise such powers and carry out such financial and administrative functions as may assigned to him by the State Government, the Central Board, the State Board or the Chairman, under the Act or the Rules, from time to time. 19. (1) The Member Secretary may withhold any payment if he considers such action to be necessary in accordance with the financial rules or in the interest of the Board: Provided that, as soon as may be after such with holding of payment, the matter shall be placed before the Board for its approval or such orders as the Board may consider proper. (2) Subject to the provisions of sub-rule (1) of rule 18 of the Member Secretary may delegate any of his powers, which are not delegated to him, to any of his subordinate officers in the interest of work. (3) The Member Secretary shall have all ancillary powers, not inconsistent with the provisions of the Act, the rules and the orders issued by the Board or the Chairman, as may be necessary for proper and effective implementation of provisions of such Act and Rules or the said orders.” 10. A perusal of the aforesaid rules shows that the terms and conditions of service of the Member Secretary as prescribed in the Act have to be construed as that only the period of appointment either on contract or deputation could be fixed by the State Government, however the removal would be subject to sub-section (3) of Section 5 and sub-section (2) of Section 6 of the Water Act. The State Government while making the appointment of the petitioner invoked the powers vested in it vide Clause (f) of sub-section (2) of Section 4 of the 9 Water Act and, therefore, the other provisions of that are applicable on the petitioner as also on the State Government with equal vigorous and force. English version of the notice of Principal Secretary & Commissioner, Uttaranchal Government, Forest & Environment Section-2 No.2202/x (2)/2005-13 (5)-2000 T.C. II, dated 08.07.2005 removing the petitioner from the post of Member Secretary of the Board is reproduced as under:- “NOTICE “Shri C.V.S.Negi, Superintending Chemist (Environment) Corporate Safely and Environment Management, O.N.G.C., Tel Bhawan, Dehradun, who was appointed on deputation on the post of Member Secretary, Uttaranchal Pollution Control Board (present name-Uttaranchal Environment Protection & Pollution Control Board), vide notification of Forest & Environment Section II, No. 128/1 (2)/1 (1) Va Gra Vi/2003-13 (5)/2000 T./C. II, dated 24.01.2003 is repatriated to his parent department O.N.G.C. with immediate effect. Shri Negi is directed to immediately hand over the charge to Secretary, Department of Forest & Environment, State of Uttaranchal.” 11. In view of the provision of sub-section (3) of Section 5 of the Water Act the petitioner could not have been removed without issuing a show cause notice. A bare perusal of the impugned order clearly shows that the respondents did not issue any show cause notice. 12. The learned counsel for the respondents contended that the petitioner cannot claim absorption in the borrowing department. He can be repatriated /reverted to his original posting in the parent department at any time. In support of his contention he placed reliance of the following case laws:- 10 1. A.I.R 1990 S.C. 1132, Ratilal B.Soni and others versus State of Gujarat and others. 2. (2000) 5 S.C.C. 362, Kunal Nanda versus Union of India, 3. (2001) 10 S.C.C. 655, Mahesh Chandra Bhargava versus Union of India, 4. (2002) 9 S.C.C. 485, Mahesh Kumar K.Parmar and others versus S.I.G. of Police and others, 5. (2003) 9 S.C.C. 32, Ram Ganga Command Area Development Authority versus Sheetal Kumar Vaish, 13. The cases cited by the learned counsel for the respondents are not applicable in the present case as the controversy involved in the said cases was of absorption from one Government department to another Government department and not on the period of appointment as has been distinguished by the Apex Court in the case Bahadursingh Lakhubhai Gohil versus Jagdishbhai M. Kamalia, [(2004) 2 S.C.C., 65] which has been relied by he learned counsel for the petitioner. The said case law has been discussed by the Apex Court in Union of India through Government of Pondicherry and another versus V.Ramakrishnan and others, reported in (2005) 8 Supreme Court Cases, 394. Paragraph Nos. 32 & 33 of the said judgment are quoted below:- “32 Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputable has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes places as he is continued to be a 11 member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post. Ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice. 33. Kunal Nandu versus Union of India [(2000) 5 SCC, 362] relied upon by the learned Solicitor General, was a case where the petitioner therein had asserted a claim for permanent absorption in the department.” 14. In the present case, the petitioner could be removed after terminating his appointment only in accordance with the provisions of sub-section (3) of Section 5 of the Water Act as it is not a case of simple deputation and is a case of appointment by deputation. Action has been taken in post-haste manner which indicates malice. 15. The impugned order is also illegal as the same has passed without following the procedure prescribed under sub-section (3) of Section 5 and sub- section (2) of Section 6 of the Water Act i.e. without issuing him notice for termination. 16. By the impugned order the petitioner has been repatriated without without considering the fact that the petitioner stood appointed under the Act & Rules and without terminating his services he could not be repatriated. Therefore, the impugned order suffers from non-application of mind. 17. The order of repatriation is couched as order of simpliciter but if the veil is lifted and reason is seen as stated in paragragh-2 of the counter affidavit filed by the 12 respondent No.1, the order becomes stigmatic and is punitive in nature. 18. It has been stated that the petitioner after his appointment as Member Secretary of the Board, had indulged himself into various malpractices, for which he had also been warned and against him, even several complaints have been received for which inquiry was going on and accordingly the respondent No.1 had to take decision in the public interest and the impugned order was passed for his repatriation. This foundation to repatriate the petitioner makes the order punitive. Therefore, an opportunity ought to have been given before passing the impugned order. 19. For the reasons recorded above the impugned order dated 08.07.2005 having been passed without following the procedure prescribed under the Rules is illegal and suffers from voice of malice and the same is liable to be quashed. 20. Since we are allowing the writ petition only on one ground, therefore we are not making any comment on the allegations of malafide made by the petitioner though much emphasis was laid by learned counsel for the petitioner. 21. The petition is allowed. The impugned order dated 08.07.2005 is quashed. It is open for the petitioner to join on the post of Member Secretary of the Board. 22. Let a copy of this judgment be issued today to the parties on payment of necessary charges. (B.C. Kandpal, J.) (P.C. Verma, J) March 28, 2006. P.Singh