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Karnataka HC cites governance continuity, reverses Congress government order to curtail tenure of pollution board chairman | Bangalore News

The Karnataka High Court has rejected a recent decision by the Congress government in the state to curtail the appointment of the chairman of the Karnataka State Pollution Control Board (KSPCB) made during the tenure of the BJP.

A division bench of the high court quashed the August 31, 2023, orders of the Karnataka government, cutting the three-year tenure of KSPCB Chairman Shanth A Thimmaiah and allowing him to continue in office till November 14, 2024, when his term ends.

“The challenge by the petitioner Dr Shanth A Thimmaiah…is favoured and a Writ of Certiorari issues quashing the same. As a consequence, his tenure as the Chairman of the KSPCB is secured till 14.11.2024,” the high court ruled in its November 29 order.

The Congress government after it came to power in Karnataka in June this year had curtailed the tenure of the KSPCB chairman on August 31, 2023, with an order stating that the appointment of the chairman on November 15, 2021, was only till March 4, 2022, — which was the remainder period of the tenure of the previous chairman.

The high court has ruled that the appointment of Thimmaiah in November 2021 for a full period of three years was the result of a full-fledged selection process by the previous government and not the filling of a casual vacancy.

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“This notification specifically states that the appointment is ‘until further orders’ and for a maximum period of three years. Very notably, it mentions 14.11.2024 as the date up to which the appointee shall hold the office,” the high court division bench has observed.

“Had it been the intent of the government that Petitioner was being appointed to the ‘casual vacancy’, the same would have been expressly or implicitly stated in the Public Notice, in the proceedings of the Search cum Selection Committee or at least in the Notification appointing him as the Chairman of KSPCB,” the court observed.

The division bench rejected a plea by the state that the November 15, 2021, appointment of the chairman of the KSPCB had erroneously mentioned his term as lasting for three years till November 14, 2024. The high court said that governments are constitutionally required to have continuity in governance and that changes cannot be affected with a change of government.

“How all of a sudden, this ‘mistake’ was discovered, by whom and when, remains enigmatic. After General Elections to the Legislative Assembly in May 2023, a ‘registered & recognized National Political Party’ that was in Opposition earlier, returned to power, is a matter of public record,” the high court observed.

“The rule of continuity of government is recognized by our Constitution. A political party comes to power and goes, yielding place to the new, periodic elections being a basic feature of our constitutional polity (vide Indira Nehru Gandhi vs Raj Narrain),” the high court said. The transition of governments must not disrupt the rule of continuity, the court said.

“This is not to say that there would be no scope for rectification of the mistake allegedly committed by the party in power earlier. But such a mistake needs to be demonstrated and its correction should be shown to have been accomplished by following due process of law. Otherwise, it gives scope for the allegation of legal malafide, if not factual,” the bench comprising Chief Justice P B Varale and Justice Krishna Dixit said in its order.

The high court, however, refused to quash a disciplinary inquiry against the KSPCB chairman on account of the procedure being completed.

The court has in its order also prescribed appointment of qualified persons as the KSPCB chairman and has said that when IAS/IFS officers are appointed for interim periods as ex-officio chairman to fill casual vacancies in the KSPCB, their terms should not extend beyond six months.

“It is a well settled position of law that the right to live in a pollution-free environment is a fundamental right guaranteed under Article 21 of the Constitution of India. That creates a corresponding obligation on the state as well as the agencies and instrumentalities of the state to ensure that different categories of pollution should be prevented,” high court said.

The high court bench said it was “of the considered view that the Search cum Selection Committee whilst accomplishing the task ‘must consider’ that the aspirant for the post of Chairman should be such that if selected, he will add value and stature to the institution of KSPCB”.

“We emphasize that the ‘casual vacancy’, whatever be the reason for its accrual, in the office of the Chairman of the KSPCB shall not be occupied by the functionaries mentioned in clauses 10 and 11 for a period beyond six months and therefore, the normative appointment by way of selection has to be made without brooking delay,” the bench said.

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