In contravention of the provisions and spirit of the Constitution as well the prescribed eligibility criteria, the union ministry of environment and forests (MoEF) has appointed a former chairman of Haryana Public Service Commission (HPSC), RD Sheokand as chairman of state-level environment impact assessment authority (SEIAA) for three years. Sheokand's name was recommended to MoEF for chairman, SEIAA, in 2011 by the Haryana government.
While Article 319 of the Constitution prohibits a former chairman or member of state Public Service Commission from taking up any employment under the government, Sheokand, who is also a retired IAS officer, does not fulfil the eligibility criteria prescribed for the member and chairman of SEIAA in a union ministry of environment and forests (MoEF) notification of September 14, 2006.
The Constitution says on ceasing to hold the office, the chairman of a state Public Service Commission shall be eligible for appointment as chairman or member of the Union Public Service Commission or as chairman of any other state Public Service Commission, but not for any other employment either under the Government of India or under the state government.
The objective of the provision is to ensure the independence and impartiality of the members of the Public Service Commission by keeping them free from any allurement of employment under government after termination of their office in the commission.
Moreover, as per the MoEF notification, the two members, including the chairman of the SEIAA, should either be professional or experts in conducting and carrying out environmental impact assessments (EIAs) and preparation of environmental management plans (EMPs) and other management plans. They should also have wide expertise and knowledge of predictive techniques and tools used in the EIA process.
Sheokand, a retired IAS officer, has never even worked in the environment sector during his stint in the state government and only handled this department during his tenure in the chief minister's office (CMO).
While union minister of state for environment, Jayanthi Natrajan and her predecessor, Jairam Ramesh did not respond to the queries mailed in this regard, special secretary, MoEF, JM Mauskar in an e-mail sent in September 2011 said: "Appointment on the SEIAA or SEAC is not an employment really. The person concerned does have to meet the requirements specified in the EIA Notification, 2006 as also be free from any conflict of interest. We will look into…….. with due care while processing this proposal."
State agency provides financial, logistic support to SEIAA
Haryana, while sending Sheokand's name also took the plea that SEIAA was an autonomous body and does not come under the direct control of the state government. However, a notification issued by the Central government for constituting the SEIAA says Haryana government will notify an agency to act as secretariat for the SEIAA and provide all financial and logistic support, including accommodation, transportation and such other facilities in respect of all its statutory functions.
"Sitting, travelling allowance/dearness allowance to the chairman and member of the authority shall be paid by the state government," the notification said.
Though the Central government has appointed the former HPSC chairman as chairman of SEIAA on the grounds of it being "not an employment really", it has certainly disregarded the spirit of the Constitution.
What Ambedkar said
Architect of the Constitution Dr BR Ambedkar, on the question of Public Service Commission members being permitted to accept honorary posts, had clearly said one way of making the commission independent of the executive was to deprive the members of the commission of any office with which the executive might tempt them to depart from their duties. "Everyone knew that pay was not the only thing which a person obtained by reason of his post. There were things like way picking and pilfering and certain amount of influence. The constitution drafting committee wanted to eliminate all these possibilities," Ambedkar had said.
Article 319 interpreted
As per an interpretation of the Article 319 of the Constitution, in order to apply the constitutional bar the new appointment must satisfy two conditions - it must be an employment and it must be under the government.
In either case, the Supreme Court has applied the test of relationship of master and servant and control of employer over the employee in discharge of functions and duties of his office.
Applying this two-fold test, the apex court has held that a constitutional office such as an office which is held under terms laid down by the Constitution such as governor or a high court judge cannot be said to be an employment under the government of India or state government even though appointed by the President because they hold the office under the Constitution without being subordinate to government.