Barin Ghosh and Navaniti Prasad Singh, JJ.
1. The appellant Board in LPA No. 960 of 1998 is a body corporate constituted by and under the provisions of the Water (Prevention and Control of Pollution) Act, 1960 (hereinafter referred to as the 'Act'). Sub-section (3) of Section 12 of the Act has authorised the Board to appoint such officers and employees as it considers necessary for the efficient performance of its functions subject to such Rules as made by the State Government. Admittedly, no Rule has been made by the State Government as was authorised to be made by Sub-section (3) of Section 12 of the Act. Section 64 of the Act has authorised the State Government to make Rules to carry out the purposes of the Act and in particular in relation to any matter which has to be or may be prescribed.
2. In exercise of its power under Section 64 of the Act, the State Government made the Water (Prevention and Control of Pollution) Rules, 1986 (hereinafter referred to as the 'Rules'). By making the said Rules, the State Government dealt with various matters which were required to be dealt with by the State Government in terms of the prescriptions contained in the Act. By the proviso to Rule 8 of the Rules, the State Government provided that the respondent-Board shall obtain prior sanction of the State Government for, amongst others appointment to posts above the pay scale of Rs. 2,500/- only per month. Thereby, as it appears to us, the State Government authorised the Board to give appointments to posts upto the pay scale of Rs. 2,499/- without prior sanction of the State Government, until substantive Rules are framed under Sub-section (3) of Section 12 of the Act.
3. The respondent-Board had put up an advertisement Inviting applications for appointment to eight posts of Assistant Environmental Engineers. Those were responded, amongst others, by the writ petitioners, who were then working in the respondent-Board as Assistant Environmental Engineers on ad hoc basis. The writ petitioners were called at an interview for viva voce test. At the viva voce test, they were asked to undertake written examination. Subsequent to participating in the said selection process, no sooner the writ petitioners were informed that they have not been selected and, accordingly, their ad hoc appointment shall cease to pave the way of giving appointments to the regularly selected candidates, the writ petitioners approached this Court challenging the very selection process.
4. Before the writ Court, the principal defence was that the petitioners having had participated in the selection process and having had taken a chance before the selectors cannot turn round and contend that the very selection process is vitiated. The learned Single Judge, to our mind, correctly held that the principle upon which the said defence is based, is founded on estoppel or waiver. A person having had offered whatever he could offer before selectors, knowing them to be selectors, is estopped by conduct from contending that the selectors were incompetent. However, the principles of waiver or estoppel applies only in relation to matters which are not covered by law, that is no estoppel or waiver applies in relation to matters not sanctioned by law. Because anything done in contravention of law is illegal and nonest. Therefore, if in contravention of the provisions of the law, a selection has taken place, the very selection being vitiated, a person having had participated in such selection cannot be shown the door for he offered what he could offer to the selectors, who could not select in terms of the law.
5. In the instant case, admittedly, the posts for which the advertisement had been published carried salary in the scale above Rs 2,500/-. Admittedly, the State Government had not granted prior approval to the Board for giving appointment to any of those advertised posts. It has not come on record that even after selection, for the subject appointments, any post facto approval had either been sought from the State Government or the same had it been granted.
6. If, therefore, by reason of the provisions contained in the said Act and the Rules framed by the State Government, the first step taken to appoint is vitiated, can it be said that the person, who appeared at one of stages, of such process, that is at the selection stage, cannot report to a Court and contend that the very process adopted for appointment is vitiated. We do not think so.
7. We, therefore, hold that the learned Single Judge rightly held that in the facts and circumstances of the case and in particular by reason of the provisions contained in the said Act and the Rules, the very process for appointment could not be initiated without the prior sanction of the State Government and, accordingly, for the petitioners merely appeared before the selectors, it could not be said that the petitioners were estopped from contending that the process of appointment from the day one is bad.
8. In the appeal before us, it was urged by the Board in addition to those who had been selected and appointed, including four more appointees, who had been appointed beyond the advertised eight posts, that the Rule was framed in 1986 when an Environmental Engineer of the rank of Superintending Engineer was drawing salaries in the scale not exceeding Rs 2,500/- per month and the State Government while framing the Rules, being aware of the said state of affair, authorised the Board to give appointments to officers drawing salaries in the scale upto Rs 2,499/- without permission of the State. It was submitted that the real intention of the State in framing the subject Rule, in the manner it was framed, was to ensure efficient functioning of the Board, inasmuch as by Sub-section (3) of Section 12 of the Act the Board was empowered to appoint such officers of its choice for that purpose and the level of the officers, thus, authorised to be appointed was upto Superintending Engineer. It was stated that by reason of inflation and change in the salary pattern of Government employees and employees of other authorities, today, even the last ranking worker in the Board is entitled to receive salary in the scale in excess of Rs 2,500/-.
9. The learned Counsel, therefore, contended that it must be construed that people who had been drawing salaries in 1986 upto the scale of Rs 2,499/- per month can be appointed by the Board without the permission of the State Government and the true meaning of the subject Rule should be understood in that manner.
10. What has been urged before us by the learned Counsel for the appellants may be absolutely true. That may be the true intention of the State while framing the Rules. However, such intention should only be gathered from the Rules and from nothing else. A look at the Rules would not suggest any such intention. If on the basis of such assumed intention, gathered on the principles of ostensible wisdom, we interpret the proviso to Rule 8 of the Rules in the manner as we have been asked to interpret, we would be supplying words into the Rule which we cannot do in order to cull out the meaning proposed in the Rule, when the words used in the Rule makes complete sense. We, therefore, hold that without prior permission of the State Government, the Board was incompetent to start the process of filling up any of those advertised posts.
11. On that ground alone, we uphold the judgment under appeal.
12 In Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and Ors. reported in : (1996)ILLJ919SC , the Hon'ble Supreme Court has observed that the Members of the Selection Board or for that matter, any other Selection Committee do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules. In view of this observation of the Hon'ble Supreme Court, the learned Single Judge while dealing with the writ petitions concluded that the Selection Committee cannot decide the procedure for selection and held in favour of the writ petitioners inasmuch as it was complained in the writ petition that while candidates were called to appear at viva voce test, they were asked to take written examination.
13. A look at the judgment rendered in Dr. Krushna Chandra Sahu (supra) would amply demonstrate that in that case, the matter was covered by statutory Rules. The Court felt that when the statutory Rule is silent on a particular issue, the Selection Committee cannot supply the vacuum for they were not the rule makers. This principle of law will not apply in relation to an authority which has been authorised to give appointment, subject to the Rules as framed by the State Government when, admittedly, the State Government has not framed the Rules and at the same time, the State Government has given permission to appoint persons drawing salaries upto the scale of Rs 2,499/-. In such situation in the matter of giving such appointments or in the matter of giving appointments to persons carrying salary in excess of Rs. 2,500/- with the prior permission of the State Government, the Board alone is the master and, accordingly, has a free hand in framing the criteria for selection. In the matter of framing such criteria for selection, inasmuch as no Rules have been framed by the State Government, the Board is not bounded in chains and is free to adopt whatever criteria it proposes to adopt. If the Board instead of itself selecting the candidates to be appointed, delegates its authority of selection to the selectors without imposing any condition, that is without laying down the criteria for selection, it goes without saying that such delegation itself authorised the selectors to lay down the criteria for selection.
14. We, therefore, feel that when there was no imposition on the Board, i.e, the Board had no statutory obligation to frame guidelines or rules to lay down the principles for fixation of criteria for selection, it could delegate its power to lay down such principles to the selectors, for the same is a must, for making the selection meaningful.
15. We have made the above observations inasmuch as while disposing of the writ petition by the order under appeal, the learned Single Judge while set aside the appointments, directed the Board to take steps for fresh appointment in accordance with law. We are told that such steps have been taken with prior permission of the State Government. After such selection, the matter was placed before the State Government for its approval. The State Government has opined that inasmuch as the selection criteria has not been fixed by the Board but has been fixed by the selectors, the selection is vitiated. In those circumstances, we felt it necessary to observe that having regard to what has been stated above, the selectors were competent to devise the criteria for selection for guiding them to make a meaningful selection for the Board has not given any such guidance and, accordingly, the criteria laid down by the selectors cannot be said to be without jurisdiction. The learned Counsel for the State has contended that even in relation to the second selection, the Board has not taken permission of the State Government. If that be so, we have already upheld the contention of the writ petitioners that such a permission is a sine qua non for starting the process of appointment. If prior permission has been granted to give appointments, the matter of selection entirely rests with the Board and neither in the matter of selection, nor in the matter of appointment pursuant to selection, the State has any say whatsoever. We, however, make it clear that we have not gone into this controversy whether prior permission was or was not granted.
16. There is one more aspect of the matter which is quite serious. The advertisement was for eight posts. It did not indicate that the posts as advertised are tentative. In such a situation, the panel stands lapsed the moment vacancies in those eight posts are supplied. In the instant case, the Board purported to give four more appointments. The fact remains that there were twelve posts in which ad hoc employees were working and, accordingly, twelve posts were available for filling up. The conscious advertisement was for eight posts. Under no circumstances, four more posts could be filled in from the said panel.
17. The other most disturbing contention is that the selection list did not contain the names of those four more appointees. However, having regard to what has been stated by us above, it is not necessary for us to go into this aspect of the matter.
18. We would like to add before we part that before the appointments were given, the State Government asked the Board in writing to stop the recruitment process. The Board did not pay any heed to it. It was contended that the Board was not at all obliged to listen to the State Government in that regard. It was contended that Section 18 of the Act which obliges the Board to listen to the State Government is confined to the principal functions of the Board and not in relation to in-house matters of the Board. We personally feel that when the State Government asked the Board to stop the recruitment process, it was obligatory on the part of the Board to start communication with the State and if it had communicated in the manner it was required to communicate, it would have been clear to the Board that it could not start the recruitment process without the prior approval of the State Government. It was unjust on the part of the Board to totally ignore the said communication of the State Government.
19. Although the learned Single Judge quashed the appointments and directed initiation of fresh recruitment process, His Lordship directed the Board to retain all those twelve appointees on ad hoc basis and at the same time directed the Board to reinstate the writ petitioners also on purely ad hoc basis. We have no option but to interfere with this portion of the judgment and order inasmuch as once it has been held that appointments were bad, the Court should have left the matter with the Board for giving appointments either on temporary basis or on ad hoc basis but not to continue such appointments, which were found to be bad appointments, even on ad hoc basis. That portion of the judgment and order is, therefore, set aside. We, however, make it absolutely clear that it shall be well within the competence of the Board to devise itself in such manner as is permissible in law so that efficient work of the Board is not hampered.
20. The appeals are disposed of. There shall be no order as to costs.
21. All interim orders are vacated.