TMI Blog2012 (10) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... irman of the Central Electricity Commission for finalizing the selection of the Chairperson. Applications were invited intimating various authorities including Ministry of GOI, CAG, CEA, all the Secretaries of Power working in different States in the country, CBDT, PSUs power sectors etc. Thirty persons applied for the post including the Appellant. The meeting of the Selection Committee was held on 26.12.2008 and Selection Committee selected two persons on merit, namely, the Appellant and one Mr. Amit Kumar Asthana. Panel of two names was forwarded by the Selection Committee to the government of U.P. with an asterisk against the name of the Appellant stating that if he was appointed, the government would ensure first that the provisions of Sub-section (5) of Section 85 of the Act would be complied with. The government appointed the Appellant as the Chairman of the Commission on 29.12.2008. The Appellant on that date sent a letter to the State Government stating that he had resigned from his previous assignments on 27.12.2008 and severed all his links with the private sector as required Under Section 85 of the Act. 4. The first Respondent herein who was the General Secretary, Jal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that post. The High Court, therefore, allowed the writ petition, issued a writ of quo warranto and quashed the appointment of the Appellant declaring the same as illegal and void. 6. Shri L. Nageswara Rao, learned senior Counsel appearing for the Appellant submitted that the High Court has committed an error in holding that the appointment of the Appellant was in violation of Sub-section (5) of Section 85 of the Act. learned senior Counsel took us through the minutes of the Committee meeting held on 26.12.2008 and pointed out that the Selection Committee, after examination of the bio-data of 30 candidates, prepared a panel in which the Appellant's name was shown as first in the order of merit. The Selection Committee, according to Learned Counsel, was very much aware of the fact that the Appellant was the joint Vice President of J.P. Power Venture Ltd. and hence had put an asterisk against his name and reminded the State Government that if he was to be appointed, the provisions of Sub-section (5) of Section 85 of the Act be first ensured. Learned senior Counsel, therefore, submitted that there was substantial compliance of that provision and in any view it is only a curable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed senior Counsel appearing for the state of U.P. submitted that the appointment of the Appellant was in violation of Sub-section(5) of Section 85 of the Act and the 1999 Rules and the State is taking steps to conduct fresh selection after complying with the provisions of the Act and 2008 Rules, which is in force. 9. We heard Learned Counsel appearing on either side. The locus standi of the first Respondent or the delay in approaching the writ court seeking a writ of quo warranto was not seriously questioned or urged before us. The entire argument centered around the question whether there was due compliance of the provisions of Sub-section (5) of Section 85 of the Act. Section 85 is given for ready reference: SECTION 85: Constitution of Selection Committee to select Member of the State Commission: (1) The State Government shall, for the purposes of selecting the Members of the State Commission, constitute a Selection Committee consisting of - (a) a person who has been a Judge of the High Court.... Chairperson; (b) the Chief Secretary of the concerned State....Member; (c) the Chairperson of the Authority or the Chairperson of the Central Commission ... Member: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be persons of ability, integrity and standing who have adequate knowledge of, and have shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management. (2) Notwithstanding anything contained in Sub-section (1), the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court. 11. The Chairperson, therefore, shall be a person of ability, integrity and standing and has adequate knowledge of, and has shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management. The Selection Committee, as per Section 85, has to recommend a panel of two names for filling up the post of the Chairperson, but before recommending any person for appointment as the Chairperson, the Selection Committee has to satisfy itself that such person does have any financial or other interest which is likely to affect prejudicially his functions as Chairperson. The State Government Under Section 82(5) of the Act has to appoint the Chairperson on the recommendation of the Selection Committee. 12. We have gone through the minutes of the Selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf has to satisfy', meaning thereby, it is not the satisfaction of the government what is envisaged in Sub-section (5) of Section 85 of the Act, but the satisfaction of the Selection Committee. The question as to whether the persons who have been named in the panel have got any financial or other interest which is likely to affect prejudicially his functions as Chairperson, is a matter which depends upon the satisfaction of the Selection Committee and that satisfaction has to be arrived at before recommending any person for appointment as Chairperson to the State Government. The government could exercise its powers only after getting the recommendations of the Selection Committee after due compliance of Sub-section (5) of Section 85 of the Act. The Selection Committee has given a complete go-by to that provision and entrusted that function to the State Government which is legally impermissible. The State Government also, without application of mind and overlooking that statutory provision, appointed the Appellant. 16. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. this Court in Mor Modern Coop. Transport Coop. Transport Soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educational institutions and to the High Court and shall also invite applications directly from eligible persons by notifying the vacancy in the Government Gazette. The eligible persons may send their applications directly or through an officer or authority under whom he is for the time being working. 19. The above-mentioned statutory requirements were also not followed in the instant case, over and above, the non-compliance of Sub-section (5) of Section 85 of the Act. 20. We fully agree with the learned senior Counsel for the Appellant that suitability of a candidate for appointment does not fall within the realm of writ of quo warranto and there cannot be any quarrel with that legal proposition. Learned senior Counsel also submitted that, assuming that the Selection Committee had not discharged its functions under Sub-section (5) of Section 85 of the Act, it was only an omission which could be cured by giving a direction to the Selection Committee to comply with the requirement of Sub-section (5) of Section 85 of the Act. Learned senior Counsel submitted that since it is a curable irregularity, a writ of quo warranto be not issued since issuing of writ of quo warranto is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Brother Radhakrishnan, J. However, regard being had to the importance of the matter, I propose to record my views in addition. 24. As is evincible from the factual exposition, a writ of quo warranto has been issued by the High Court of Allahabad, Bench at Lucknow declaring that the Appellant is not entitled to continue as the Chairperson of U.P. State Electricity Regulatory Commission (for short 'the State Commission') on the foundation that there had been total non-compliance of the statutory provision enshrined under Sub-section (5) of Section 85 of the Electricity Act, 2003 (for brevity 'the Act'). 25. As the facts have been stated in detail by my learned Brother, it is not necessary to repeat the same. Suffice it to state that the pleas of locus standi and delay and laches have not been accepted and a finding has been returned by the High Court that the selection of the Appellant was in flagrant violation of the provisions of the Act and, therefore, his continuance in law is impermissible. 26. Before I proceed to deal with the justifiability of the order passed by the High Court, it is thought apposite to refer to certain authorities that fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. 28. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Dr. Kashinath G. Jalmi and Anr. v. The Speaker and Ors. AIR 1993 SC 1873. 29. In High Court of Gujarat v. Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the anatomy of Section 85(5) it is limpid that the Selection Committee before recommending any person for appointment as a Chairperson or a Member of the State Commission shall satisfy itself that the person does not have any financial or other interest which is likely to affect prejudicially his functions as such Chairperson or Member, as the case may be. As the proceedings of the Selection Committee would reveal, it had not recorded its satisfaction prior to recommending the names of the two candidates. It is vivid that the Selection Committee abandoned its function and simply sent the file to the State Government. It has been argued with vehemence by Mr. Nageswara Rao, learned senior Counsel for the Appellant that when two names were chosen from amongst certain persons it has to be inferred that there was recommendation after due satisfaction as per statutory requirement. 34. On a plain reading of the provision it is clear as crystal that the Selection Committee is obliged in law to satisfy itself with regard to various aspects as has been stipulated under Sub-section (5) of Section 85 of the Act. It is perceptible that the said exercise has not been undertaken. It is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns within the State; (e) promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee; (f) adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration; (g) levy fee for the purposes of this Act; (h) specify State Grid Code consistent with the Grid Code specified under Clause (h) of Sub-section (1) of Section 79; (i) specify or enforce standards with respect to quality, continuity and reliability of service by licensees; (j) fix the trading margin in the intra-State trading of electricity, if considered, necessary; (k) discharge such other functions as may be assigned to it under this Act. (2) The State Commission shall advise the State Government on all or any of the following matters, namely: (i) promotion of competition, efficiency and economy in activities of the electricity industry; (ii) promotion of investment in el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. and these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. 38. In the said case reference was made to the decision in Popatlal Shah v. State of Madras 1953 SCR 677: AIR 1953 SC 274 wherein it has been laid down that each word, phrase or sentence is to be construed in the light of purpose of the Act itself. A reference was made to the observations of Lord Reid in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A G 1975 AC 591 wherein the Law Lord has observed as under: We often say that we are looking for the intention of the Parliament, but this is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. 39. In Sangeeta Singh v. Union of India and Ors. (2005) 7 SCC 484 emphasis was laid on the language employed in the statute and in that context it has been opined as follows: 5. It is well-settled p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised to adjudge all aspects. I may hasten to add that I am not at all delving into the sphere of suitability of a candidate or the eligibility, for in the case at hand the issue in singularity pertains to total non-compliance of the statutory command as envisaged Under Section 85(5). 45. It is seemly to state the aforementioned provision employs the term recommendation . While dealing with the concept of recommendation, a three-Judge Bench of this Court in A. Pandurangam Rao v. State of Andhra Pradesh and Ors. AIR 1975 SC 1922 has stated that the literal meaning of the word recommend is quite simple and it means suggest as fit for employment . In the present case the Selection Committee as per the provision was obliged to satisfy itself when the legislature has used the word satisfied . It has mandated the Committee to perform an affirmative act. There has to be recording of reasons indicating satisfaction, may be a reasonable one. Absence of recording of satisfaction is contrary to the mandate/command of the law and that makes the decision sensitively susceptible. It has to be borne in mind that in view of the power conferred on the State Commission, responsibility of sele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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