Members: Terms, Disqualification and Vacation of Office
Chapter Twenty-Five
Syllabus topic 2, "Pollution of Water"
Pages 110 to 114 of 783
In one line
Sections 7 to 12 are the working rules of a Board: when a seat falls vacant, how often it meets, how it brings in expertise, and who may sign on its behalf.
In exam wording: section 7 provides that a member's seat becomes vacant on his becoming subject to a disqualification under section 6; section 8 requires a Board to meet at least once in every three months; section 9 permits committees; section 10 permits the temporary association of persons who may take part in discussions but not vote; section 11 protects the Board's acts against challenge merely on the ground of a vacancy or a defect in constitution; section 11A permits delegation to the chairman; and section 12 provides for the member-secretary, officers and employees and for delegation to an officer.
Why the working rules repay learning
Two of these sections decide cases and the rest decide practice.
Section 11 is the answer to the argument that a Board's order is void because the Board was improperly constituted. Section 12(3B) is the answer to the argument that the order is void because it was signed by a regional officer and not by the Board. Between them they dispose of a large share of the technical challenges made to Board orders, and a student who has skipped them will not see the answer.
Section 7: vacation of seats
If a member of a Board becomes subject to any of the disqualifications specified in section 6, his seat shall become vacant.
Short, and automatic in form. It works with section 5(5), which deems a seat vacated on absence without sufficient reason from three consecutive meetings or on the loss of the position by virtue of which a member was nominated, and with section 5(4) on resignation. Section 6(2) is the safeguard: removal requires a reasonable opportunity of showing cause.
Section 8: meetings
A Board shall meet at least once in every three months and shall observe the prescribed rules of procedure. The proviso lets the chairman convene a meeting at any time if in his opinion business of an urgent nature is to be transacted.
So the statutory minimum is four meetings a year, which is a floor and not a description of practice. A Board that has not met for four months is in breach, though nothing in the Act says what follows from the breach.
Section 9: committees
A Board may constitute as many committees as it thinks fit, for such purposes as it thinks fit, consisting wholly of members, wholly of other persons, or partly of each.
The middle possibility is the striking one. A committee of a statutory Board may contain no member of that Board at all. Committee members who are not Board members are paid the prescribed fees and allowances, and committees meet and transact business as prescribed.
Members: Terms, Disqualification and Vacation of Office
Section 10: temporary association
A Board may associate with itself any person whose assistance or advice it wants in performing its functions, in the prescribed manner and for the prescribed purposes.
Such a person:
- has a right to take part in the discussions of the Board relevant to that purpose;
- has no right to vote at a meeting; and
- is not a member for any other purpose.
He is paid the prescribed fees and allowances.
Read this beside section 3(2) and section 4(2), which fix the composition of a Board. Section 10 is how a Board gets expertise it does not have without altering that composition, and the three limitations are what keep the two provisions consistent.
Section 11: a vacancy does not invalidate
No act or proceeding of a Board or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Board or such committee, as the case may be.
Three points.
"Merely". The section protects against a challenge founded only on the vacancy or the defect. It does not protect an order that is bad for some other reason, and it does not cure a want of jurisdiction.
"Any defect in the constitution". Wider than a vacancy. A member wrongly nominated, or one who has become disqualified and whose seat has therefore fallen vacant under section 7, is a defect in constitution.
Why it exists. A Board of a dozen members, several of them nominated by reference to offices they may cease to hold, will be imperfectly constituted a good deal of the time. Without section 11 every consent order and every direction would be open to attack by a search of the nomination records.
Section 11A: delegation to the chairman
The chairman exercises such powers and performs such duties as are prescribed, or as the Board from time to time delegates to him.
A short section with a practical consequence: much of what a Board does between meetings is done by the chairman under a standing delegation.
Section 12: the member-secretary, the staff, and delegation to an officer
Sub-sections (1) and (2), the member-secretary. His terms and conditions are prescribed. He exercises the powers and performs the duties prescribed, or delegated to him by the Board or its chairman. He is a full-time appointee with scientific, engineering or management qualifications in pollution control, and he is the Board's chief executive in practice.
Sub-section (3), officers and employees. A Board may appoint such officers and employees as it considers necessary, subject to rules made by the appropriate Government.
Members: Terms, Disqualification and Vacation of Office
Sub-section (3A), regulations. The method of recruitment and the terms and conditions of service, including scales of pay, of officers other than the member-secretary and of other employees are determined by regulations made by the Board itself, but no such regulation takes effect unless approved by the Central Government for the Central Board or by the State Government for a State Board.
Note the layering: rules are made by the Government, regulations by the Board with the Government's approval. It is a small illustration of a distinction students often blur.
Sub-section (3B), delegation to an officer. A Board may, by general or special order and subject to such conditions and limitations as the order specifies, delegate to any officer of the Board such of its powers and functions under the Act as it deems necessary.
This is the provision that makes the Board work at all. A State Board cannot itself grant every consent, inspect every unit or sign every direction, and section 12(3B) is how a regional officer does so with the Board's authority.
Sub-section (4), consulting engineer. A Board may appoint a qualified person as a consulting engineer on such terms as it thinks fit.
A worked example
A unit receives a direction under section 33A signed by the Regional Officer of the Maharashtra Pollution Control Board. It challenges the direction on two grounds: that the Board itself did not pass it, and that at the relevant time two seats on the Board were vacant and one member had become disqualified.
The first ground. Section 12(3B) permits the Board, by general or special order, to delegate its powers and functions to any officer, subject to conditions and limitations. If there is such an order and the Regional Officer acted within it, the direction is the Board's. The real questions are whether the order exists, whether it covers section 33A directions, and whether any condition in it was observed. The absence of a delegation, not the identity of the signatory, is what would make the direction bad.
The second ground. Section 11. The direction cannot be called in question merely on the ground of the vacancies or of the defect in constitution. The disqualified member's seat had become vacant under section 7, which is itself a defect in constitution and is exactly what section 11 protects against.
What would have worked. A challenge on the merits, or on natural justice, or a submission that the delegation did not extend to the power exercised. Section 11 does not protect those.
Distinctions
| Committee, section 9 | Associated person, section 10 | |
|---|---|---|
| What it is | a body constituted by the Board | an individual brought in to assist or advise |
| Composition | wholly members, wholly others, or a mixture | one person at a time |
| Rights | transacts the business for which it is constituted | may take part in discussions relevant to the purpose |
| Vote at a Board meeting | not applicable | expressly no |
| Member of the Board? | not necessarily | expressly not, for any other purpose |
Members: Terms, Disqualification and Vacation of Office
| Rules | Regulations | |
|---|---|---|
| Made by | the Central or State Government | the Board |
| Approval | laid before the legislature | approved by the Government |
| Example here | terms of service of the chairman and member-secretary | recruitment and conditions of other officers and employees, section 12(3A) |
What it does NOT mean
Section 11 does not cure everything. It answers a challenge founded merely on a vacancy or a defect in constitution. It does not validate an order made without jurisdiction or in breach of natural justice.
Section 10 does not create a member. An associated person may speak in the discussion relevant to his purpose and may not vote, and he is not a member for any other purpose.
Section 12(3B) does not transfer the power away from the Board. The Board delegates, subject to conditions and limitations of its own choosing, and may revoke.
Quick revision
- 7: a seat becomes vacant on a member becoming subject to a section 6 disqualification.
- 8: meet at least once in every three months; the chairman may convene a meeting for urgent business.
- 9: committees, which may consist wholly of non-members.
- 10: an associated person may discuss but not vote, and is not a member for any other purpose.
- 11: no act or proceeding called in question merely on the ground of a vacancy or a defect in constitution.
- 11A: delegation to the chairman.
- 12: member-secretary; staff by regulations made by the Board with Government approval; (3B) delegation to any officer by general or special order; consulting engineer.
Test yourself
1. How often must a Board meet, and what is the exception? At least once in every three months, under section 8, observing the prescribed rules of procedure. The proviso allows the chairman, if in his opinion business of an urgent nature is to be transacted, to convene a meeting at such time as he thinks fit, so the three month rule is a floor rather than a limit.
2. A Board's order is challenged because two seats were vacant when it was made. What is the answer? Section 11. No act or proceeding of a Board or of any of its committees shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Board or the committee. The word "merely" is the limit: the section answers a challenge founded on nothing but the vacancy, and leaves untouched a challenge on the merits, on jurisdiction or on natural justice.
Members: Terms, Disqualification and Vacation of Office
3. May a committee of a Board contain nobody who is a member of the Board? Yes. Section 9(1) permits a Board to constitute committees consisting wholly of members, wholly of other persons, or partly of members and partly of others, for such purposes as it thinks fit. Committee members who are not Board members are paid the prescribed fees and allowances.
4. Under what provision does a regional officer of a State Board issue a direction, and what must be shown? Section 12(3B), under which a Board may by general or special order, and subject to such conditions and limitations as the order specifies, delegate to any officer such of its powers and functions under the Act as it deems necessary. What must be shown is that a delegation exists, that it extends to the power exercised, and that any condition attached to it was observed.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.