Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7165 OF 2010
(Arising out of S.L.P. (C) No. 11013 of 2009)
Hari Bansh Lal .... Appellant(s)
Versus
Sahodar Prasad Mahto & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and
order dated 27.04.2009 passed by the High Court of
Jharkhand at Ranchi in Writ Petition (PIL) No. 5067 of
2008 in and by which the High Court allowed the Public
Interest Litigation filed by Sahodar Prasad Mahto,
Respondent No. 1 herein and quashed the appointment of
Hari Bansh Lal, appellant herein as Chairman of the
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Jharkhand State Electricity Board and directed the State
Government to make fresh appointment to the post of
Chairman of the Board in place of the appellant herein.
3) Brief facts:
a) Sahodar Prasad Mahto, Respondent No.1 herein,
claiming himself as Vidyut Shramik Leader, filed Writ
Petition No. 5067 of 2008 before the High Court of
Jharkhand challenging the appointment of Mr. Hari
Bansh Lal, the appellant herein (Respondent No.5 before
the High Court) as Chairman, Jharkhand State Electricity
Board (in short “the Board”) on the ground that the Board
has been constituted in an arbitrary manner and he is a
person of doubtful integrity, aged about 90 years,
appointed as a Chairman without following the rules or
procedure. Even before filing the present writ petition, the
said Mahto and his colleague Sideshwar Prasad Sinha
filed Public Interest Litigation seeking general direction
not to appoint corrupt persons as Chairman and Members
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of the Board. According to the writ petitioner, various
allegations and insinuations have been made against
Respondent No.5 therein who was appointed as Chairman
of the Board and during the period there had been
shortfall in generation transmission and supply of
Electricity. He also alleged that Mr. Hari Bansh Lal retired
from service of the Board in the year 1976, considering his
age, he is not in a position to perform his duties as
Chairman. He also contended that because of age factor
as well as want of knowledge and latest advanced
technologies in the field of electricity, prayed for
appropriate direction for his removal by way of a Public
Interest Litigation.
b) The State Government, Jharkhand State Electricity
Board as well as the appellant, who was Respondent No.5
therein, filed counter affidavit specifically denying all the
averments. On the other hand, the Board has highlighted
that Mr. Lal rendered excellent service in the Board,
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received appreciation and there is no age limit prescribed
for appointment of a Member or Chairman of the Board
under the Electricity (Supply) Act, 1948. In the same way,
the State Government, in their counter affidavit, reiterated
that Mr. Lal has all the required technical qualification in
the field of Electricity. He possessed a number of Indian
and foreign degrees to his credit. All appointments were
made after obtaining vigilance clearance. In the case of
Mr. Lal also, vigilance clearance was obtained before his
appointment as Chairman of the Board. In a separate
counter affidavit, Hari Bansh Lal enumerated full details
of his qualifications, experience and expertise in the
electricity field. It is also stated that the then Chief
Minister of Jharkhand, after considering the merits of
several candidates, had ordered the appointment of Mr.
Lal as Chairman of the Board in the year 2004 and
continued till 2005 when he tendered his resignation from
the post during political instability. He also highlighted
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the relevant provisions relating to appointment to the post
of Chairman from the Electricity (Supply) Act, 1948 as
well as the Bihar Electricity Board Rules, 1960 which is
applicable to the State of Jharkhand.
c) On going through the rival contentions, the Division
Bench of the High Court, after holding that appointment
of Respondent No.5 therein, as Chairman of the Board is
not only arbitrary but also contemptuous and ultimately
quashed his appointment. The said order is under
challenge by the appellant-Hari Bansh Lal, by way of
special leave before this Court.
4) Heard Mr. P.P. Rao, learned senior counsel for the
appellant, Mr. Prashant Kumar, learned counsel for
Respondent No.1 and Mr. K.K. Rai, learned senior counsel
for the State Government.
Statutory provisions:
5) Chapter III of the Electricity (Supply) Act, 1948
(hereinafter referred to as “the Act”) deals with
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constitution and composition of State Electricity Boards,
Generating Companies, State Electricity Consultative
Councils and Local Advisory Committees. Among the
other provisions, we are concerned about Sections 2 (2)
and 5 which read thus:
“2. (2) “Board” means a State Electricity Board
constituted under section 5;”
“5. Constitution and composition of State
Electricity Boards.- (1) The State Government shall, as
soon as may be after the issue of the notification under
sub-section (4) of section 1, constitute by notification in
the Official Gazette a State Electricity Board under such
name as shall be specified in the notification.
(2) The Board shall consist of not less than three and
not more than seven members appointed by the State
Government.
(4) Of the members –
(a) one shall be a person who has experience of, and has
shown capacity in, commercial matters and
administration;
(b) one shall be an electrical engineer with wide
experience; and
(c) one shall be a person who has experience of
accounting and financial matters in a public utility
undertaking, preferably an electricity supply
undertaking.
(5) One of the members possessing any of the
qualifications specified in sub-section (4) shall be
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appointed by the State Government to be the Chairman
of the Board.
(6) A person shall be disqualified from being appointed
or being a member of the Board if he is a member of
Parliament or of any State Legislature or any local
authority.
(7) No act done by the Board shall be called in question
on the ground only of the existence of any vacancy in, or
any defect in the constitution of, the Board.”
By virtue of power conferred by Section 78 of the Act, the
Governor of Bihar framed the Bihar State Electricity Board
Rules, 1960. Rules 2 (5) and 4, which are relevant, read
thus:
“2. (5) “Chairman” means the Chairman of the Board
appointed under sub-section (5) of section 5.”
“4. Powers of the Chairman, and terms of office,
remuneration, allowances and conditions of service
of the Chairman and other Members of the Board.-
(i) Subject to such directions as may be issued by State
Government from time to time, and such delegation as
may be made by the Board in this behalf, the Chairman
shall be responsible for the day-to-day administration,
and for properly carrying out the directions and
decisions of the Board. He shall function as a liaison
between the State Government and the Board in
matters arising out of the administration of the Act to
the extent the State Government is concerned.
(ii) The Chairman may bring to the notice of the State
Government any difference of opinion, on matters of
policy, arising between him and the other members of
the Board. He may also similarly refer any other
matters of policy to the State Government and place the
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directions received from the State Government, for the
consideration and action by the Board.
(iii) The Chairman and other Members shall hold office
for such period not exceeding five years and shall, on
the expiration of their term of office, be eligible for re-
appointment under such conditions as the State
Government may, from time to time, by order, direct.
Xxx xxx”
The above provisions make it clear that the State
Government is empowered to constitute a State Electricity
Board by issuance of a notification in the official gazette.
As per sub-section (4) of Section 5, one of the members
having qualification is eligible to be appointed by the State
Government as Chairman of the Board. As per rule 4(3),
the Chairman and other members shall hold office for a
period not exceeding five years. The said rule also makes
it clear that on the expiration of the term of office, if they
are eligible for re-appointment, the State Government is
empowered to appoint those persons on such conditions.
It is not in dispute that there is no prescribed age limit for
holding the post of Chairman.
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PIL in service matters:
6) About maintainability of the Public Interest Litigation
in service matters except for a writ of quo warranto , there
are series of decisions of this Court laying down the
principles to be followed. It is not seriously contended
that the matter in issue is not a service matter. In fact,
such objection was not raised and agitated before the High
Court. Even otherwise, in view of the fact that the
appellant herein was initially appointed and served in the
State Electricity Board as a Member in terms of Section
5(4) and from among the Members of the Board,
considering the qualifications specified in sub-section (4),
the State Government, after getting a report from the
vigilance department, appointed him as Chairman of the
Board, it is impermissible to claim that the issue cannot
be agitated under service jurisprudence. We have already
pointed out that the person who approached the High
Court by way of a Public Interest Litigation is not a
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competitor or eligible to be considered as a Member or
Chairman of the Board but according to him, he is a
Vidyut Shramik Leader. Either before the High Court or
in this Court, he has not placed any material or
highlighted on what way he is suitable and eligible for that
post.
7) In Dr. Duryodhan Sahu and Others vs. Jitendra
Kumar Mishra and Others , (1998) 7 SCC 273, a three-
Judge Bench of this Court held “if public interest
litigations at the instance of strangers are allowed to be
entertained by the Tribunal, the very object of speedy
disposal of service matters would get defeated”. In para
21, this Court reiterated as under:
“21. In the result, we answer the first question in the
negative and hold that the Administrative Tribunal
constituted under the Act cannot entertain a public
interest litigation at the instance of a total stranger.”
8) In Ashok Kumar Pandey vs. State of W.B., (2004) 3
SCC 349, this Court held thus:
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“16. As noted supra, a time has come to weed out the
petitions, which though titled as public interest litigations
are in essence something else. It is shocking to note that
courts are flooded with a large number of so-called public
interest litigations where even a minuscule percentage can
legitimately be called public interest litigations. Though the
parameters of public interest litigation have been indicated
by this Court in a large number of cases, yet unmindful of
the real intentions and objectives, courts are entertaining
such petitions and wasting valuable judicial time which, as
noted above, could be otherwise utilized for disposal of
genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra
Kumar Mishra this Court held that in service matters PILs
should not be entertained, the inflow of so-called PILs
involving service matters continues unabated in the courts
and strangely are entertained. The least the High Courts
could do is to throw them out on the basis of the said
decision. The other interesting aspect is that in the PILs,
official documents are being annexed without even
indicating as to how the petitioner came to possess them.
In one case, it was noticed that an interesting answer was
given as to its possession. It was stated that a packet was
lying on the road and when out of curiosity the petitioner
opened it, he found copies of the official documents.
Whenever such frivolous pleas are taken to explain
possession, the courts should do well not only to dismiss
the petitions but also to impose exemplary costs. It would
be desirable for the courts to filter out the frivolous
petitions and dismiss them with costs as aforestated so
that the message goes in the right direction that petitions
filed with oblique motive do not have the approval of the
courts.”
9) The same principles have been reiterated in the
subsequent decisions, namely, Dr. B. Singh vs. Union of
India and Others , (2004) 3 SCC 363, Dattaraj Nathuji
Thaware vs. State of Maharashtra and Others , (2005)
1 SCC 590 and Gurpal Singh vs. State of Punjab and
Others , (2005) 5 SCC 136.
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The above principles make it clear that except for a writ of
quo warranto , Public Interest Litigation is not
maintainable in service matters.
Writ of Quo Warranto
10) Writ of quo warranto lies only when appointment is
contrary to a statutory provision. In High Court of
Gujarat and Another vs. Gujarat Kishan Mazdoor
Panchayat and Others , (2003) 4 SCC 712, (three-Judges
Bench) Hon’ble S.B. Sinha, J. concurring with the
majority view held:
“22. The High Court in exercise of its writ jurisdiction in a
matter of this nature is required to determine at the outset
as to whether a case has been made out for issuance of a
writ of certiorari or a writ of quo warranto. The jurisdiction
of the High Court to issue a writ of quo warranto is a
limited one. While issuing such a writ, the Court merely
makes a public declaration but will not consider the
respective impact of the candidates or other factors which
may be relevant for issuance of a writ of certiorari. (See
R.K. Jain v. Union of India 2, SCC para 74.)
23. A writ of quo warranto can only be issued when the
appointment is contrary to the statutory rules. (See Mor
Modern Coop. Transport Society Ltd. v. Financial Commr.
& Secy. to Govt. of Haryana)”
11) In Mor Modern Cooperative Transport Society
Ltd. vs. Financial Commissioner & Secretary to Govt.
1
of Haryana and Another , (2002) 6 SCC 269, the
following conclusion in para 11 is relevant.
“11. … …. The High Court did not exercise its writ
jurisdiction in the absence of any averment to the effect
that the aforesaid officers had misused their authority
and acted in a manner prejudicial to the interest of the
appellants. In our view the High Court should have
considered the challenge to the appointment of the
officials concerned as members of the Regional
Transport Authority on the ground of breach of
statutory provisions. The mere fact that they had not
acted in a manner prejudicial to the interest of the
appellant could not lend validity to their appointment, if
otherwise, the appointment was in breach of statutory
provisions of a mandatory nature. It has, therefore,
become necessary for us to consider the validity of the
impugned notification said to have been issued in
breach of statutory provision.”
12) In B. Srinivasa Reddy vs. Karnataka Urban Water
Supply & Drainage Board Employees’ Assn. and
Others , (2006) 11 SCC 731, this Court held:
“ 49. The law is well settled. The High Court in exercise
of its writ jurisdiction in a matter of this nature is
required to determine, at the outset, as to whether a
case has been made out for issuance of a writ of quo
warranto . The jurisdiction of the High Court to issue a
writ of quo warranto is a limited one which can only be
issued when the appointment is contrary to the
statutory rules.”
It is clear from the above decisions that even for issuance
of writ of quo warranto , the High Court has to satisfy that
the appointment is contrary to the statutory rules. In the
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later part of our judgment, we would discuss how the
appellant herein was considered and appointed as
Chairman and whether he satisfied the relevant statutory
provisions.
Suitability of a candidate for appointment
13) In The State of Mysore and Another vs. Syed
Mahmood and Others , (1968) 3 SCR 363 = AIR 1968 SC
1113, it was held that suitability or otherwise, appointing
authority is the best person and the court cannot issue a
positive writ without giving the authority/Government
opportunity in the first instance to consider his/her claim
for promotion.
14) The same view has been reiterated in Statesman
(Private) Ltd. vs. H.R. Deb and Others , (1968) 3 SCR 614
= AIR 1968 SC 1495.
15) In State Bank of India and Others vs. Mohd.
Mynuddin , (1987) 4 SCC 486, after adverting to earlier
decision of this Court in The State of Mysore & Anr. vs.
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Syed Mahmood & Ors. , (1968) 3 SCR 363 this Court
held:
“…..The ratio of the above decision is that where the
State Government or a statutory authority is under an
obligation to promote an employee to a higher post
which has to be filled up by selection the State
Government or the statutory authority alone should be
directed to consider the question whether the employee
is entitled to be so promoted and that the court should
not ordinarily issue a writ to the government or the
statutory authority to promote an officer straightway.
The principle enunciated in the above decision is
equally applicable to the case in hand.”
It is clear from the above decisions, suitability or
otherwise of a candidate for appointment to a post is the
function of the appointing authority and not of the court
unless the appointment is contrary to statutory
provisions/rules.
Materials relied on by the High Court
16) Before considering the materials relied on by the High
Court, it is relevant to mention CWJC No. 924 of 2001
which was filed to ensure that persons of unimpeachable
integrity alone are made members of the Board. The High
Court issued an interim order holding that any
1
appointments made would be subject to the final outcome
of the writ petition. Mr. Rajiv Ranjan and Mr.
Sachidanand Akhauri were appointed as Chairman and
Member of the Board respectively. The appellant herein
was not a party to the said writ petition. By order dated
21.09.2001, the High Court allowed the said writ petition
and set aside the appointment of Mr. Rajiv Ranjan and
others. Certain aspects in the judgment are relevant to
the present case. They are, while discussing the facts
antecedent to the appointment of Mr. Rajiv Ranjan and
others, the fact that the appellant herein was originally
chosen by the Chief Minister for the post of Chairman of
the Board was discussed and the fact that the Chief
Secretary of the State noted in his objections that
probably the appellant herein was suspended earlier when
he was in government service and a raid was conducted
was noted by the High Court in the said judgment. The
High Court, however, made it amply clear at the end of the
1
judgment that its observations regarding the appellant
and others is not to be construed as an opinion with
respect to the correctness of those observations. It is
relevant to point out that review petitions were filed by the
State of Jharkhand and Sachidanand Akhauri who was
one of the persons appointed to the Board and whose
appointment was also quashed. By order dated
04.04.2002, the High Court allowed both review petitions,
primarily on the ground that Mr. Rajiv Ranjan and Mr.
Sachidanand whose appointments were quashed were not
parties in the writ proceedings and they should have been
heard before setting aside their appointment. When Mr.
H.B. Lal filed impleadment application in the review
petition in view of certain observations made about him in
the original judgment, the High Court made it clear that
no adverse order was passed and no adverse observations
were made against him and that the judgment does not
operate adversely or prejudicially against him.
1
17) Mr. Rao, learned senior counsel has pointed out that
the High Court committed an error in quashing the
appointment on the wrong assumption that his integrity
was doubtful, he was suspended and a raid was also
conducted. In para 14, the High Court has extracted note
of the Chief Secretary to the Chief Minister. We are
concerned with the following passage which the High
Court heavily relied on
“….. I have no knowledge regarding image of Shri Hari
Bansh Lal during his past service, but probably during
his service period he was suspended and a raid had also
conducted. It is proper to get information as to what
finally happened in those related matters. …..
Sd/-
(Vijay Shankar Dubey)”
(Emphasis supplied)
First of all, it is unfair on the part of the Chief Secretary to
prepare a note to the Chief Minister in such a way that “…
probably during his service period he was suspended
and a raid had also conducted….”. For this, the
appellant has sworn an affidavit denying the raid by any
1
department as mentioned and no other material produced
before the Court to substantiate this claim. As far as
order of suspension of the appellant is concerned,
proceedings of the Government dated 21.11.1975 clearly
shows that the State Government itself revoked the
punishment. It is useful to refer the entire proceeding of
the State Government.
“Resolution No. 114 Patna, Dated :21-11-1975
Since Sh. Harbansh Lal (who is a permanent Officer,
Electricity Department, Government of Bihar and at
present is posted as Electrical Superintending Engineer
in Purnea) has given his representation against the
punishment inflicted through resolution No. 1962 dated
13-8-75 and
Since upon his representation and the opinion received
from Bihar State Electricity Board and after considering
the recommendations from the Cabinet (Vigilance)
Department, he has not been directly found guilty for
the charge No.4.
Therefore the Government has decided to lift the
punishment inflicted upon him through Departmental
Resolution No. 1962 dated 13-8-75.
Order:- It is ordered that the copy of this resolution be
forwarded to Sh. Hari Bansh Lal and other concerned
officials for information and necessary action.
(Emphasis supplied)
From the order of the Governor of Bihar
Sd/-
1
Indra Dev Jha
Additional Secretary of Government,
Electricity Department
Memo No. 116/Dated, Patna 21-11-1975 A.D.
Copy to:
(A) Additional Secretary, Electricity Department, Patna
(B) Chairman, Bihar State Electricity Board, Patna
(C) Sh. H.B. Lal, Electrical Superintending Engineer,
Purnea Division.
In pursuance to Departmental, Memo 1962 dated 13-8-
75 is being forwarded for information and necessary
action.
Sd/- Indra Dev Jha
Additional Secretary to Government,
Electricity Department.”
The above proceeding makes it clear that even the one
punishment of suspension had been revoked by the State
Government by a regular order dated 21.11.1975. The
said order came to be passed in the name of the Governor.
In such circumstance, the conclusion by the High Court in
this regard is erroneous, contrary to the record of
proceedings placed before it and liable to be set aside.
18) It is highly useful to refer a decision of the
Constitution Bench of this Court in E.P. Royappa vs.
State of Tamil Nadu and Another , (1974) 4 SCC 3. The
2
facts are that the petitioner was a member of Indian
Administrative Service. On July 11, 1969 he was posted
to act on the post of Additional Chief Secretary
temporarily created in the grade of Chief Secretary for one
year. On November 13, 1969 he was posted to act as
Chief Secretary. On April 7, 1971 he was appointed
Deputy Chairman of the State Planning Commission
created temporarily for a period of one year in the grade of
Chief Secretary to Government. The petitioner went on
leave and even after returning from leave he did not join
the said post. By order dated June 27, 1972 Government
created another temporary post of Officer on Special Duty
for one year in the grade of Chief Secretary to Government
and the petitioner was transferred to the said post but he
did not join the duties and in July, 1972 the petitioner
filed the writ petition under Article 32 of the Constitution
before this Court asking for a writ of mandamus
or any writ, direction or order directing the respondent to
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withdraw and cancel the order dated June 27, 1972.
19) After considering various issues, the Constitution
Bench highlighted about the role of the Chief Secretary
and the ultimate decision of the Chief Minister in
appointing a person for a highest post in the State,
namely, Chief Secretary, which reads as under:
“87 . Now, two important considerations must weigh
with us in determining our approach to these questions.
First, the post of Chief Secretary is a highly sensitive
post. It is a post of great confidence — a lynchpin in the
administration — and smooth functioning of the
administration requires that there should be complete
rapport and understanding between the Chief Secretary
and the Chief Minister. The Chief Minister as the head
of the Government is in ultimate charge of the
administration and it is he who is politically answerable
to the people for the achievements and failures of the
Government. If, therefore, for any valid reason the Chief
Secretary forfeits the confidence of the Chief Minister,
the Chief Minister may legitimately, in the larger
interests of administration, shift the Chief Secretary to
another post, provided of course that does not involve
violation of any of his legal or constitutional rights. There
can be no question in such a case as to who is right and
who is wrong. The displacement of the Chief Secretary
from his post in such a case would not be arbitrary and
it would not attract the inhibition of Articles 14 and 16.
It may, however, be pointed out that such an action
would not, we think, ordinarily be taken except for the
most compelling reasons, because, if resorted to without
proper justification, it would tend to affect the political
neutrality of the public service and lead to
demoralisation and frustration amongst the public
servants.”
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If we apply the same principles to the appellant, who was
appointed as Chairman of the Electricity Board by the
Chief Minister, after fulfilling the criteria, the said
appointment cannot be interfered lightly without adequate
material about his integrity or inefficiency in service.
20) From the discussion and analysis, the following
principles emerge :-
a) Except for a writ of quo warranto , PIL is not
maintainable in service matters.
b) For issuance of writ of quo warranto , the High Court
has to satisfy that the appointment is contrary to the
statutory rules.
c) Suitability or otherwise of a candidate for appointment
to a post in Government service is the function of the
appointing authority and not of the Court unless the
appointment is contrary to statutory provisions/rules.
Curiously, but unfortunately, the State Government
which had defended the qualification, service and ultimate
2
appointment of Mr. Lal (appellant herein) as Chairman of
the Board before the High Court, changed their stand
before this court for the reasons best known to them and
supported the order of the High Court.
21) Now, it is necessary to highlight the stand of the State
Government before the High Court. The State has filed a
separate counter affidavit. The State Government, State
Electricity Board and the appellant herein, as Chairman of
the Board, have filed separate detailed counter affidavits.
In the counter affidavit dated 27.11.2008 (Annexure-P12)
filed on behalf of the State of Jharkhand, the following
extraction would clearly show about the meritorious
qualification of the appellant and the ultimate decision of
the Government in appointing him as a Chairman of the
Board:
“4. That the public interest litigation filed by the writ
petitioner is thoroughly misconceived and is liable to be
dismissed.
7. That it is stated and submitted that the Respondent
No.5 has all the required educational qualifications as
well as vast experience in the field of electricity. He has
2
a number of Indian and foreign degrees to his credit.
The Respondent No.5 is a B.Sc. in the Electrical and
Mechanical Engineering from the Banaras Hindu
University (B.H.U.) and M.Sc. in Electrical Engineering
from Illinois Institute of Technology, Chicago (U.S.A.).
The Respondent No.5 was awarded D.Sc. by TGPU,
Opeinde (Netherland). He has been in generation,
transmission and distribution of electricity and rural
electrification for about 35 years. He was also awarded
a Colombo Plan Scholarship in U.K. for 1 and ½ years
and he was a graduate student in U.S.A. for 2 years
where he undertook training as well as study and
practices of the latest technologies connected with
Electric Power System Engineering.
8. That it is stated and submitted that the Respondent
No.5 has also had tenure as a Consultant of National
Hydro Electric Power Corporation (NHPC) a public
sector undertaking of the Govt. of India. A bare perusal
of the resume of the Respondent No.5 shows that he is
fully and completely capable and qualified in every
manner to hold the post of the Chairman of the
Jharkhand State Electricity Board.
10. That with regard to the prayer made in para-1 of
the writ petition that all appointments should be made
in the Electricity Board only subsequent to obtaining
vigilance clearance it is stated that the said clearance
had been duly obtained and the case of the appointment
of the Respondent No.5 from the Government of Bihar
vide letter No. 5532 dated 6.10.2004.
11. That the statements made in para-1 of the writ
application are the reliefs as sought for by the
petitioner. With regard to para 1(a) and (b) of the writ
petition, it is stated that there is no arbitrariness in the
reconstitution of the Jharkhand State Electricity Board.
The Chairman (Respondent No.5) was earlier appointed
after obtaining due vigilance clearance. His age has not
prevented him from functioning and performing his
duties as required of him. He possess vast knowledge
2
and experience in the field of electricity as is clear from
Annexure-A to the instant affidavit.”
22) In the second supplementary counter affidavit with
regard to suspension or raid, the following is the stand of
the Government before the High Court.
“That the answering respondents however state that
there are no records regarding the suspension or raid
against respondent No.5 available in the Bihar State
Electricity Board, Patna.”
23) On behalf of the Jharkhand State Electricity Board,
Law Officer of the Board has filed a counter affidavit. The
following information about the appellant herein are
relevant.
“5. That it is stated that the respondent No.5 after
successful completion of his service superannuated
from the Bihar State Electricity Board as Technical
Member. The respondent no.5 has rendered his
excellent service in the Board and has received
appreciation all along his working period, and
considering the excellent performance of the respondent
no.5, he has been allowed to get the entire pension and
other retiral benefits in full which are sanctioned only
after vigilance clearance.
7. (A) The point of law formulated by the question
whether a person of more than 90 years of age can be
allowed to hold the post of Chairman of the State
Electricity Board is based on ill information. As stated
2
above, earlier also Electricity (Supply) Act, 1948 had not
prescribed any upper age limit for appointment as
member or Chairman of the Board. It is further relevant
to mention here that the respondent No.5 is not 90
years of age and he was retired in 1985.
12. That with regard to the statements made in para 15
of the instant PIL, it is stated that the same is disputed
and therefore, denied. It is further stated that during
the short tenure of working of the respondent no.5 as
Chairman Electricity Board i.e. for 8-9 months, from
th th
18 October, 2004 to 27 July, 2005 the condition of
electricity in the State had improved. Besides, the said
improvement the respondent no. 5 had taken steps for
enhancement in electric supply and rural electrification
implementing different schemes. ….. …..”
24) Though the appellant himself has filed a detailed
counter affidavit denying all the allegations made by the
writ petitioner and highlighted his qualifications and
achievements in the State Government, more particularly,
in the Electricity Board, there is no need to traverse the
same in the light of the specific stand as well as
encomium by the State Government and the Electricity
Board. In view of the same, we hold that it is
impermissible for the State to take a different view in the
absence of any change of circumstance. In fact, in spite of
several queries from the Bench, Mr. K.K. Rai, who
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represented the State was unable to apprise this Court for
changing their stand than that of the one asserted before
the High Court. He is not in a position to put-forth any
compelling circumstance to take such a stand except
change of Government and persons in power.
Accordingly, we reject his present stand which is contrary
to their assertion before the High Court. For all these
reasons, the impugned order of the High Court is liable to
be set aside.
25) Now, we have to consider the eligible relief or
entitlement by the appellant in view of our conclusion.
Mr. P.P. Rao, learned senior counsel, by drawing our
attention to the decision of this Court in Badrinath vs.
Government of Tamil Nadu and Others, (2000) 8 SCC
395 submitted that if this Court accepts the appellant’s
case, it is entitled to issue a positive mandamus and
permit him to continue as Chairman of the State
Electricity Board. In the reported decision, accepting the
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stand of the appellant and rejecting the unreasonable
stand taken by the State Government, this Court issued
the following direction.
90. In the light of the above precedents, we have
considered whether this is a fit case where this Court
should issue a mandamus or remit the matter back to
the State Government. After giving our anxious
consideration to the facts of the case, we are of the view
that having regard to our findings on Points 1 to 5 and
to the continuous unfair treatment meted out to the
appellant by the State of Tamil Nadu — even as
accepted by the Central Government in its comments —
this is a pre-eminently fit case requiring the issue of a
mandamus. We are, therefore, constrained to exercise
all the powers of this Court for rendering justice and to
cut short further proceedings. The consideration of the
appellant’s case for the said promotion has been
hanging fire and going up and down for the last twenty-
five years. Disgusted with the delays, the appellant has
also taken voluntary retirement. In the light of our
decision on Points 1 to 5, we declare the censure in the
fourth case as void and without jurisdiction and in the
alternative also, as liable to be quashed under
Wednesbury principles. The adverse remarks of bygone
years prior to 1972 have lost all their sting. The positive
factors in the appellant’s favour both recorded (at the
compulsion of the Central Government) and others to
which we have referred to earlier as meriting
consideration are, in our opinion, sufficient to entitle
him for promotion to the super-time scale. The
appellant’s case is, in our view, no less inferior to the
cases of the other officers who were conferred the
similar benefit of super-time scale by the State of Tamil
Nadu, details of which have been profusely given in the
writ petition. For the aforesaid reasons, we quash the
punishment of censure, the assessment made by the
Joint Screening Committee, the Orders passed by the
State and Central Government refusing to grant him
super-time scale and in rejecting the appeal of the
appellant and we further direct as follows:
In the special and peculiar circumstances of the case,
we direct the respondents to grant the appellant the
benefit of the super-time scale from the date on which
the appellant’s junior Shri P. Kandaswamy was granted
super-time scale. The respondents are accordingly
directed to pass an Order in this behalf within eight
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weeks of the receipt of this order and to give him all
consequential benefits, attendant thereto. The said
benefits shall also be reflected in his pension and other
retiral benefits. They shall be worked out and paid to
him within the time aforementioned.”
Relying on this and pointing out that the present
appellant – Hari Bansh Lal was similarly placed like Mr.
Badrinath prayed similar direction for his continuance as
Chairman of the State Electricity Board. Though, in the
PIL, the writ petitioner has mentioned the age of Mr. Lal
as 90, it is factually incorrect and Mr. Lal himself sworned
an affidavit and asserted and not disputed by the State
that he is 84 as on date and according to him, he is hale
and healthy. We have already reproduced the stand of the
State Government before the High Court about his
qualification and service rendered as Member and
Chairman in the State Electricity Board. It is not
anybody’s case that his appointment was contrary to any
of the statutory provisions. In fact, it was described that
his appointment was in terms of the provisions of the Act
and Rules. It is also pointed out that though he continued
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as Chairman as on date when this Court issued notice
and also directed his continuance on 01.05.2009, the fact
remains that he could not be continued and the State
Government had appointed another person. It is relevant
to point out that in the appointment order relating to the
present incumbent Mr. Shiv Basant, the State
Government has specifically mentioned that his
appointment is subject to the result of the appeal filed by
Hari Bansh Lal. Taking note of all these relevant factors
and of the fact that admittedly, there is no age limit
prescribed in the rules for appointment to the post of
Chairman and also with regard to the stand of the State
Government about the qualification as well as good service
rendered by the appellant, we feel that in the event of
quashing the High Court’s order, he should be allowed to
continue as Chairman of Electricity Board.
26) In the light of the above discussion, the impugned
judgment of the High Court is set aside. The appellant is
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permitted to join duty forthwith and continue as
Chairman of the State Electricity Board in terms of his
appointment order. We make it clear that his continuance
in the post of Chairman is subject to the ultimate decision
of the Government, however, the same shall be in
accordance with Section 5(5) of the Act and Rule 4 of the
Rules.
27) With the above direction, the appeal is allowed. No
costs.
.….…….………………..………J.
(P. SATHASIVAM)
...…………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
AUGUST 30, 2010
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