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IN THE HIGH COURT OF JUDICATURE AT MADRAS
SATISH K. AGNIHOTRI & M. VENUGOPAL, JJ.
Dr. K. Karthikeyan & Others – Petitioner
Versus
V. Anbazhagan & Others – Respondent
W.A.Nos. 112 & 177 of 2015
Decided on: 24-04-2015
Tamil Nadu State and Subordinate Services Rules – Rule 39 – Water (Prevention and Control of Pollution) Act, 1974 – Section 4 – Irregularities – W.A. is preferred by the fifth respondent therein and W.A. is preferred by the 1st, 2nd and 4th respondents therein, questioning the legality, validity and propriety of the order of the learned Single Judge. – For convenience, the parties are referred to as per their status in the writ petition. – Held, Section 4(2)(f) of the Water (Prevention and Control of Pollution) Act, 1974 prescribes eligibility for a full time member secretary as aforestated, to be appointed by the State Government. – The knowledge is an essential part of the eligibility. – The experience when it is also essential ingredient of the eligibility, has to be examined in the light of the antecedent of integrity, fairness and honesty. – The experience is not only working for a period in the concerned field, but in the proper, fair manner. – If the antecedent of a candidate while working in different capacities to acquire scientific, engineering and management aspects of pollution control, is tainted with doubtful integrity, as found proved in the enquiry in the instant case, the same is the relevant consideration for examination under the eligibility criteria. – In the case on hand, the appellants herein have not placed any material before us to refute the findings recorded by the learned Single Judge, as extracted in the preceding paragraph No.11. – Court is unable to hold that the integrity which was under cloud is a part of suitability, not of the eligibility and as such, the same should not have been gone into while considering the issue of grant of quo warranto. – The institutional integrity is also a relevant consideration. – The suitability is adjudged on the basis of comparative merit having required eligibility of the participating candidates and requirement of the nature of the job. – Law well settled, which flows from the aforestated judicial pronouncements, is that the judicial review in case of grant of quo warranto is permissible only to an extent of examining the eligibility or violation of statutory / constitutional provisions, not the suitability of a candidate which falls in the domain of the executive or appointing authority. – Contention of the learned Advocate General that Rule 39(d) of the Tamil Nadu State and Subordinate Services Rules, provides that pending enquiry does not create a bar for consideration for appointment of a person, is not relevant and applicable in the case on hand as it is a case of appointment on the public office, not by way of promotion as prescribed under the said provision. – This is a case of lack of eligibility, as prescribed under the statute under Section 4(2)(f) of the Water (Prevention and Control of Pollution) Act, 1974. – The institutional interest is also a relevant consideration in case of appointment on the post of a high public office. The learned Writ Court was justified in grant of writ of quo warranto. – Writ Appeals Dismissed
Satish K. Agnihotri, J.
1. Both writ appeals arise from the order dated 23.1.2015 rendered by the learned Single Judge in W.P.No.24003 of 2014.
2. W.A.No.112 of 2015 is preferred by the fifth respondent therein and W.A.No.177 of 2015 is preferred by the 1st, 2nd and 4th respondents therein, questioning the legality, validity and propriety of the order of the learned Single Judge. For convenience, the parties are referred to as per their status in the writ petition.
3. The facts in brief are that the fifth respondent was working as District Environment Engineer when he was promoted as Joint Chief Environment Engineer, Tamil Nadu Pollution Control Board (for short TNPCB) on 29.12.2010 by G.O.(D) No.383, Environment and Forests (EC.2) Department. Thereafter, during the period from 26.09.2011 to 01.01.2012, the fifth respondent was working as Member Secretary of TNPCB. On 1.1.2012, he proceeded on leave for five months. It transpires that an enquiry was ordered by the Commissioner of Vigilance and Anti Corruption, vide proceedings dated 16.10.2012, which in turn ended in acquittal.
4. On the basis of a complaint, a charge memo was issued to the fifth respondent on 7.1.2013 in respect of some alleged irregularities committed while he was working as Chief Environment Engineer, Chennai. According to the third respondent Board, out of seven charges, five were found proved and it was found that the fifth respondent had caused loss to the exchequer to the tune of Rs.4,95,709/-. In the meantime, the fifth respondent was appointed as Member Secretary by the Environment and Forest (EC2) Department on 25.7.2014. The petitioner filed the writ petition on 1st September, 2014, seeking a writ in the nature of Writ of Quo Warranto or any other appropriate writ to declare the appointment of the fifth respondent as against the authority of law and consequently to declare the post of Member Secretary as vacant.
5. In the writ petition, it was contended by the writ petitioner that when departmental as well as vigilance enquiry were pending against the fifth respondent, his appointment on the post of Member Secretary was without authority of law. The fifth respondent was not a fit person to hold the post of Member Secretary. It was also submitted that out of seven serious charges, five charges were held as proved, which are grave in nature and as such, the fifth respondent is not eligible and competent to be appointed to the responsible and important post of Member Secretary of TNPCB. Thus, his appointment be declared as bad and illegal.
6. In response, the State Government / appellant in W.A.No.177 of 2015 submitted that the fifth respondent possesses qualification, knowledge and experience of scientific engineering or management aspects of pollution control as required under Section 4(2)(f) of the Water (Prevention and Control of Pollution) Act, 1974. The fifth respondent was the most eligible and suitable qualified person for the post.
7. The locus standi of the writ petitioner was also questioned on the ground that the writ petitioner under the banner of social activist is not competent to file the writ petition for a writ of quo warranto. On the issue of framing of charges, the State Government took the stand that the third respondent- Chairman, TNPCB has framed five charges against the fifth respondent on 7.1.2013 for certain procedural flaws while issuing consent to certain industries, thereby causing loss to TNPCB to the tune of Rs.4,95,709/-. However, the loss as alleged in the charges was not held proved against the fifth respondent. The charges were in the nature of fact finding and on the enquiry report dated 30.5.2014, the fifth respondent had submitted a representation on 7.7.2014. It was also stated that the fourth respondent- Inspector of Police, Vigilance and Anti Corruption /department, who conducted a detailed enquiry into the sa
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