Bansh Lal Vs. Sahodar Prasad Mahto & Ors.  INSC 676 (30 August 2010)
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)
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
1 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
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 2 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.
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, 3 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 4 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.
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.
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.
Chapter III of the Electricity (Supply) Act, 1948 (hereinafter referred to as "the Act") deals
with 5 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) "Board" means a State Electricity Board constituted under section
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
Board shall consist of not less than three and not more than seven members
appointed by the State Government.
the members - (a) one shall be a person who has experience of, and has shown
capacity in, commercial matters and administration;
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.
of the members possessing any of the qualifications specified in sub-section
(4) shall be 6 appointed by the State Government to be the Chairman of the
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
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
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:
(5) "Chairman" means the Chairman of the Board appointed under
sub-section (5) of section 5."
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
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 7 directions received from the State Government, for
the consideration and action by the Board.
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.
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.
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
8 PIL in
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 9 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.
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:
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."
In Ashok Kumar Pandey vs. State of W.B., (2004) 3 SCC 349, this
Court held thus:
"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.
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.
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
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.
The above principles make it clear that except for a writ of quo
warranto, Public Interest Litigation is not maintainable in service matters.
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:
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.)
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)"
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.
... .... 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."
In B. Srinivasa Reddy vs. Karnataka Urban Water Supply &
Drainage Board Employees' Assn. and Others, (2006) 11 SCC 731, this Court held:
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
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 1 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.
of a candidate for appointment
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.
The same view has been reiterated in Statesman (Private) Ltd. vs.
H.R. Deb and Others, (1968) 3 SCR 614 = AIR 1968 SC 1495.
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. 1 Syed Mahmood & Ors., (1968) 3 SCR 363 this Court held:
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
principle enunciated in the above decision is equally applicable to the case in
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.
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
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. .....
(Vijay Shankar Dubey)"
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 "...
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.
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
the Government has decided to lift the punishment inflicted upon him through
Departmental Resolution No. 1962 dated 13-8-75.
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.
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.
Additional Secretary, Electricity Department, Patna (B) Chairman, Bihar State
Electricity Board, Patna (C) Sh. H.B. Lal, Electrical Superintending Engineer,
pursuance to Departmental, Memo 1962 dated 13-8- 75 is being forwarded for
information and necessary action.
Indra Dev Jha Additional Secretary to Government, Electricity Department."
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.
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
18) It is
highly useful to refer a decision of the Constitution Bench of this Court in
E.P. Royappa vs.
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 2 withdraw and cancel the order dated June 27,
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:
Now, two important considerations must weigh with us in determining our
approach to these questions.
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.
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
2 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.
the discussion and analysis, the following principles emerge:- a) Except for a
writ of quo warranto, PIL is not maintainable in service matters.
issuance of writ of quo warranto, the High Court has to satisfy that the
appointment is contrary to the statutory rules.
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.
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.
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.
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:
That the public interest litigation filed by the writ petitioner is thoroughly
misconceived and is liable to be dismissed.
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.
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.).
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 = 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.
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
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.
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.
(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
the second supplementary counter affidavit with regard to suspension or raid,
the following is the stand of the Government before the High Court.
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."
behalf of the Jharkhand State Electricity Board, Law Officer of the Board has
filed a counter affidavit. The following information about the appellant herein
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.
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
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 18th October, 2004 to 27th 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. .....
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 2 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
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.
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 2 stand of the
appellant and rejecting the unreasonable stand taken by the State Government,
this Court issued the following direction.
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:
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 2 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."
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 3 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.
the light of the above discussion, the impugned judgment of the High Court is
set aside. The appellant is 3 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.
the above direction, the appeal is allowed. No costs.
.........................................J. (P. SATHASIVAM)
..........................................J. (DR. B.S. CHAUHAN)