Madras High Court upholds appointment of Girija Vaidyanathan as NGT Expert Member, flags ambiguity in eligibility criteria

The Madras High Court on Saturday upheld the appointment of IAS officer Girija Vaidyanathan as an expert member of the National Green Tribunal (G Sundarrajan v. Union of India and ors)..In the process the Court has also indicated that there is a need to bring more clarity to the provisions of the National Green Tribunal (NGT) Act which deals with the eligibility criteria for bureaucrats to be appointed as the Tribunal's expert members under Section 5 of the Act..The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy had earlier stayed Vaidyanathan's appointment on April 9. The stay now stands vacated with Saturday's order. Vaidyanathan is due to take charge of on Monday, April 19..Vaidyanathan eligible for appointment as Expert Member under Section 5(2)(b), NGT Act.The issue raised before the Court was whether Vaidyanathan has requisite administrative experience in dealing with environmental matters in the Central or State Government or in a reputed National or State level institution, in terms of Section 5 (2) (b) of the National Green Tribunal Act, 2010..There was no dispute about the three and a half years of environmental experience held by Vaidyanathan during her term as a secretary to the State Government in the Environment and Forest Department (from December 2001 to August 2002) and as the Chairman of Tamil Nadu Pollution Control Board (from November 2003 to May 2005)..On examining additional material, the Court found that Vaidyanathan's term as the Secretary to the Government in the Health and Family Welfare Department also counts towards environmental experience, given the nature of her duties. .In this regard, it was noted that she was entrusted with responsibilities concerning the implementation of the Bio-medical Waste (Management and Handling) Rules. .Further, the Bench was informed that as a Chief Secretary to the State, she had been involved in various tasks concerning the environment:While the Chief Secretary of the Steering Committee, Vaidyanathan has dealt with matters pertaining to storage and usage of disposable plastic across the State for a 11-month period. Under a subsequent State government order of September 20, 2018, Vaidyanathan, as the Chief Secretary, dealt with matters pertaining to the use of plastic in course of storage, supply and sale of goods. By an order passed by NGT (Southern Bench) on July 28, 2015, Vaidyanathan was required to coordinate and ensure the completion of restoration work concerning certain streams and rivers. This work also related to action against the discharge of sewage into the Cooum river. Another NGT order passed on February 13, 2019 directed Vaidyanathan to remain present before the Tribunal and be responsible for implementing the orders passed by the Tribunal..The Bench, however, opined that Vaidyanathan's term as the Secretary in the Health and Family Welfare Department is enough to indicate that she has sufficient environmental experience to be eligible for appointment as an NGT Expert Member. ."As the Secretary in the Health and Family Welfare Department, there were many tasks that the third respondent would have performed, but it does appear that bio-medical waste disposal management was also a part of her brief ... Thus, without looking into the tenuous association of the third respondent as the Chief Secretary with environmental matters and without giving credence to the number of times that the third respondent may have attended the National Green Tribunal or passed by the building, the two and a half years spent by the third respondent as Secretary in the Department of Health and Family Welfare together with the nearly 28 months combined in the Environment and Forest Department and as the Chairperson of the Pollution Control Board, the third respondent appears to have covered almost the entirety of the five years of requisite experience and, at any rate, if given the benefit the nearest integer of any fraction," the order said. .The Bench added that an informed decision of the selection committee which had chosen Vaidyanathan for the post also commands a degree of deference..Certain objections were also raised over the manner in which Vaidyanathan was appointed. In this regard, the petitioner contended that earlier rules of 2010 ought to have been applied since the advertisement for the post was issued in 2019, before the latest 2020 rules came into force. .The High Court, however, rejected this stance. "Apart from the advertisement having indicated that the rules as amended would apply, the Supreme Court dictum in the Madras Bar Association case is clear and unequivocal: appointments made to tribunals after the Rules of 2020 had come into effect would necessarily be governed by such Rules," it observed. .Based on the above, the petition challenging Vaidyanathan's appointment as an NGT Expert Member was dismissed..Need to bring more clarity to eligibility criteria for appointment of NGT Expert Members.In the course of the order, the Court also flagged concerns over the apparent ambiguity under Section 5 (2)(b), NGT Act when it comes to the experience required for a bureaucrat to be appointed an NGT Expert Member. .It may be noted that Section 5(2)(a) lays down the following alternative criteria for being eligible for appointment as an Expert Member of the NGT i.e.A degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology, andExperience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environmental impact assessment, climate change management; biological diversity management and forest conservation) in a reputed national level institution..The Court observed that it was up to the Parliament to decide whether mere administrative experience under Section 5(2) (b) of the NGT Act should be regarded as equivalent to real expertise indicated in Section 5(2)(a) of the Act. .In any case, however, the Bench emphasised that the criteria for appointment of bureaucrats as Expert Members of the Tribunal may have to be further clarified, especially since such tribunals involve divesting judicial courts of powers in specialised matters over the perceived lack of expertise on the part of regular Judges. ."Though the matter is over, there are many aspects that may require to be pondered over in larger public interest. For a start, the extent of a bureaucrat's involvement in environmental matters, which would count towards his experience of five years in such regard, may require to be spelt out with more clarity for such person to be regarded the equivalent of a real expert as indicated in Section 5(2)(a) of the Act. After all, the adjudicatory wing of the sovereign has been divested of its authority to deal with matters pertaining to environment on the perceived lack of specialised or domain knowledge of the members who man it," the order stated..As such, the tribunal has to be constituted by expert members adept at dealing with such specialised matters. From this viewpoint, the High Court emphasised that the eligibility criteria for expert members must be clear.."It is, thus, of crucial importance that the expertise of the expert member of the tribunal be not diluted either in how the eligibility criteria are framed or in the selection of any candidate," the Court said..[Read Order]