BIHAR STATE POLLUTION CONTROL Vs. DILIP KUMAR JHA

JUDGEMENT

(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 Sec.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. Sec. 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 Sec. 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. 2,500.00 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 Sec. 12. of the Act.

(3.) 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.