Challenging the decision of the High Court of Orissa, Cuttack in WP(C), where the Division Bench nullified the appointment of the respondent and instructed the current appellant to retrieve the ...
No Acts & Articles mentioned in this case
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9872 OF 2013
(Arising out of Special Leave Petition (C) No. 16112 of 2012)
Central Electricity Supply
Utility of Odisha ......Appellant
Versus
Dhobei Sahoo & Ors. .....Respondents
WITH
CIVIL APPEAL NO. 9871 OF 2013
(Arising out of Special Leave Petition (C) No. 15870 of 2012)
Bijaya Chandra Jena …Appellant
Versus
Dhobei Sahoo and others …
Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted in both the special leave petitions.
Page 2 2
2.Assailing the judgment and order dated 28.3.2012
passed by the High Court of Orissa, Cuttack in
WP(C) No. 23268 of 2011 whereby the Division
Bench has quashed the appointment of the
respondent No. 5 herein and further directed the
present appellant to recover the amount paid to
the 5
th
respondent towards honorarium, in a public
interest litigation preferred by the 1st respondent,
the present appeals, one by the Central Electricity
Supply Utility of Odisha (CESU) and the other by
the affected person have been preferred, by
special leave. The factual matrix and the bedrock
of challenge being similar we shall state the facts
which are requisite to understand the controversy.
However, the description of the parties shall be in
accordance with their rank ascribed to them in the
appeal preferred by CESU.
3. The appellant-CESU has been created under
Section 22 of the Electricity Act, 2003 (for brevity,
“the Act”) passed by the Orissa Electricity
Page 3 3
Regulatory Commission (for short “the
Commission”). CESU is a deemed licensee under
the Act for the distribution of electricity in the
Central Zone of Odisha. It is necessary to state
here that on 1.4.1996 Orissa Electricity Reforms
Act, 1995 came into force providing for
restructuring of the Electricity Sector in the State
of Odisha. Thereafter, Orissa Electricity Reform
(Transfer of Undertakings, Assets, Liabilities,
Proceedings and Personnel) Scheme Rules, 1996
came into existence and on that base a newly
constituted, wholly owned Company of the
Government of Orissa, namely, Grid Corporation of
Orissa Limited (GRIDCO) was vested with the
Transmission, Distribution and Retail Supply
functions of the erstwhile Orissa State Electricity
Board. On 1.4.1999 by virtue of Orissa Electricity
Reform (Transfer of Assets, Liabilities, Proceedings
and Personnel of Grid Corporation of Orissa
(GRIDCO) to Distributions Companies) Rules, 1998,
Page 4 4
the distributions and retail Supply functions of
GRIDCO were vested with in four newly
constituted Distribution Companies out of which
one was Central Electricity Supply Company of
Orissa Limited (CESCO) which was given the
responsibility of Distributions Undertakings of the
Central Zone and to carry out them, granted a
license for distribution of electricity by the
Commission. Be it noted, 51% Shareholding and
Management of CESCO vested in a private
Company, namely, AES Orissa Distribution Pvt.
Ltd. (AESODPL) and the balance 49% was held by
GRIDCO. After coming into force of the Act on
10.06.2003 the said arrangement continued as
there was nothing inconsistent with the new
legislation. On 26.2.2005 as management of
AESODPL abandoned the management of CESCO,
the license granted in favour of CESCO was
revoked by the Commission under Section 19 of
the Act w.e.f. 1.04.2005. On 2.04.2005 an
Page 5 5
Administrator was appointed by the Commission
for management and control of CESCO.
4.As the factual matrix would further unfurl on
8.9.2006 the Commission initiated the process for
sale of utility of CESCO under Section 20 of the
Act. However, as the Utility could not be sold, by
order dated 8.9.2006 the Commission created a
new Utility, namely, CESU and formulated Central
Electricity Supply Utility of Orissa (Operation and
Management) Scheme, 2006 (hereinafter referred
to as “the Scheme”) for Operation and
Management of CESU. On 5.5.2007, the Scheme
was amended by the Commission. Clause 5 of the
Scheme defined the powers and functions of the
Chairman, CEO (CEO), Chief Finance Officer (CFO)
and Chief Operating Officer (COO). On 31.10
2007, one S.K. Dasgupta was appointed as CEO of
CESU with a financial package of Rs. 22 lakhs per
annum. On 31.3.2010, respondent No. 5, who had
earlier served as Chairman and Managing Director
Page 6 6
of GRIDCO as well as Member of the Commission
from 2001 to 2006 and had forty-five years of
experience in the electricity sector was nominated
as member as well as Chairman of the
Management Board and of CESU without any
remuneration. The Chairman was only entitled to
sitting fee of Rs. 2000/- per meeting.
5.As the chronology of events would depict, Mr. S. K.
Dasgupta resigned from the post of CEO on
8.8.2010 and on 10.8.2010 he was relieved.
Keeping in view the smooth functioning of CESU,
the Commission decided to entrust the function,
duties and responsibilities of CEO to the 5
th
respondent with immediate effect until further
orders or until alternative arrangements were
made by the Commission. It was mentioned in the
order dated 10.8.2010 that the 5
th
respondent
would enjoy all the perquisites/facilities as was
being given to the CEO except the monthly
emoluments. It was also observed that the
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Commission would take a view later on regarding
the desirability of giving an honorarium to the
Chairman. On 12.11.2010, the Scheme was again
amended and a new Clause was inserted as
Clause 4 (ix) and it was 6
th
Amendment to the
Scheme. On that day itself the Commission fixed
consolidated honorarium of Rs. 70,000/- per month
for the 5
th
respondent.
6.After these developments, the respondent No. 1
and another filed a public interest litigation, WP
(C) No. 23268 of 2011, on 26.8.2011 praying for
issue of writ of “quo warranto” for quashing of the
order of the Commission entrusting the functions
of CEO of the CESU to the 5
th
respondent. It was
contended before the High Court that CESU was a
Government owned company and it had become a
rehabilitation centre for retired persons and
deadwoods at the cost of public money; that the
Orissa State Electricity Board vide Office Order
dated 30.8.1961 had adopted the service
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conditions of Government servants and GRIDCO
vide its Office Order dated 25.4.1996 had adopted
the regulations relating to service and allied
matters for the employees of the Board
transferred to GRIDCO; that asking the Chairman
of the Board of Management of CESU to remain in-
charge as CEO was contrary to the Scheme as
amended upto 2010 vide notification dated
12.11.2010; that the appointment of the 5
th
respondent was contrary to Regulation 13(1)(2)(3)
of GRIDCO Officers’ Service Regulations which
provide for appointment to grades above E-9 shall
be on a contract basis initially for a period of three
years and renewable thereafter for such period(s)
as the Board for the Committee of the Board may
prescribe until the Officer attains the age of
superannuation as provided in these Regulations;
and that the third respondent was appointed
contrary to law and, therefore, his appointment
Page 9 9
should be quashed and the salary drawn by him
should be recovered.
7.The aforesaid contentions were resisted by the
Commission contending, inter alia, that the
Commission had not appointed the 5
th
respondent
as CEO of CESU but had assigned the functions,
duties and responsibilities till an alternative
arrangement was made by the Commission and
the said arrangement was purely ad hoc in nature;
that CESCO Officers’ Service Regulations had been
adopted by CESU but not that of GRIDCO Officers’
Service Regulations; that the 5
th
respondent was
the Chairman of CESU in view of his bright
engineering career and vast experience in the
distribution sector and there has been no violation
of any of the provisions of Orissa Service Code and
Pension Rules; that the said temporary
arrangement had been made by the Commission
only for the interest of utility and larger interest of
the public and consumers and CESU; that the
Page 10 10
Commission had given the 5
th
respondent a
consolidated honorarium of Rs.70,000/- per month
whereas his predecessor CEO was getting a total
salary of Rs.1,67,284/-; and that the Commission
asking the 5
th
respondent to remain in-charge as
CEO was not violative of any rules or regulations.
8.A counter affidavit was filed by the CESU and the
5
th
respondent contending that a Public Interest
Litigation of the present nature was not
maintainable and in any case the Commission’s
handing over the charge of as CEO to the 5
th
respondent would not be found fault with.
9.The High Court referred to the maintainability of
the writ petition and came to hold that as the post
of the CEO, CESU, had not been filled in
accordance with the Service Regulations of
GRIDCO, the challenge to the effect that the
Chairman being higher in rank than the CEO could
not have been asked to discharge the function of
Page 11 11
CEO and granting honorarium of Rs.70,000/- in
addition to his usual perquisites, a writ of quo
warranto would lie. Thereafter, the High Court
proceeded to scrutinize the order passed by the
Commission asking the 5
th
respondent to discharge
the functions of CEO as a temporary measure and
opined that it has to be construed as an
appointment and the person concerned was not
suitable to hold the post as the service regulations
do not provide for the same. The High Court
referred to clause 4(iv) and clause 5 of the
Scheme and the impugned order dated
12.11.2010 whereby the 5
th
respondent, Mr. Jena,
was given Rs.70,000/- per month as a consolidated
honorarium in addition to the usual perquisites
being enjoyed by the CEO like telephone, vehicle,
travelling allowances excluding the house rent and
opined ascribing certain reasons that the said
appointment was illegal and, accordingly, quashed
the same. The High Court further directed for
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recovery of the amount from the 5
th
respondent. It
is also apt to note here that the High Court
directed that the Commission shall immediately
take steps to fill up the post of CEO within a period
of two months from the date of receipt of the copy
of the judgment and the Chairman shall not be
allowed to function till filling up of the post of CEO
and some other responsible officer of CESU shall
act as in-charge CEO.
10.At this stage, we think it apposite to summarise
the principal reasons which have been ascribed by
the High Court while setting aside the order
whereby the 5
th
respondent was asked to function
as CEO and given the consolidated honorarium:
(i)The Commission has acted illegally and arbitrarily
in appointing the Chairman as the CEO, who is also
one of the Members of the Board Management of
CESU.
Page 13 13
(ii)On reading of all the relevant clauses it is very
clear that the Chairman of the CESU is required to
supervise the smooth functioning of the CESU and
CEO is to act under the control of the Chairman.
That being the position and the opp. party no. 3,
who is a retired officer and the Chairman of CESU
could not have been appointed as CEO.
(iii)If the post of CEO in the organization falls vacant
in view of the urgency of either temporary
appointment can be made or in charge
arrangement can be made for temporary period,
but the same power could not have been
conferred upon the Chairman as the Chairman is
required to supervise and control the function of
officers of the Board as well as in the Organization
and, therefore, his appointment as CEO by way of
an alternative arrangement is contrary to Clause 5
of the Scheme.
Page 14 14
(iv)It is not legally correct on the part of the
Commission to appoint the Chairman as the CEO,
which is contrary to the service regulations and
the 5
th
respondent should not have been allowed
to function as the CEO having regard to the nature
of powers and functions required to be discharged
by the Chairman, for CEO is under the control and
supervision of the Chairman. As the 5
th
respondent
cannot supervise his own work there is violation of
principles of natural justice as he cannot find out
his own defects and discharge his responsibilities.
(v)The Commission has acted in violation of service
regulations and hence, it is case of abuse of
power. That apart, propriety demanded that the
5
th
respondent should not have entrusted with the
additional charge of CEO.
(vi)The appointment being contrary to the guidelines
framed by CESU, the 5
th
respondent becomes an
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usurper to the public office and hence, his
appointment deserved to be quashed.
11.We have heard Mr. P.P. Rao, learned senior counsel
for Central Electricity Supply Utility of Odisha, Mr.
M.G. Ramachandran, learned counsel for Bijay
Chandra Jena, Respondent No. 1 in person assisted
by Mr. Aparajit Ninawe, learned counsel, and Mr.
Rutwik Panda, learned counsel for respondent No.
4 in both the appeals.
12.Calling in question the defensibility of the
judgment Mr. Rao, learned senior counsel, has
advanced the following contentions: -
(a) In relation to a service matter a public
interest litigation is not maintainable except as
far as it relates to a writ of quo warranto and in
the case at hand, the High Court has failed to
understand the implications of the writ of quo
warranto and has not only entertained the PIL in
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the garb of a writ of quo warranto but further
proceeded to direct recovery of the amount paid
to the Chairman of the Commission while
functioning as a CEO which is beyond the scope
of a PIL.
(b) A writ of quo warranto cannot be
issued unless there is violation of statutory
provisions and in the case at hand, in the
absence of any statutory provision, and regard
being had to the amendment of the Scheme
made on 12.11.2010 wherein sub-clause (ix)
has been incorporated in clause 4 enabling the
Commission to allow the Chairman to discharge
the functions and responsibilities of both the
posts, the arrangement could not have been
unsettled by the High Court.
(c) The High Court has failed to
appreciate that the appointing authority has the
inherent power to make an interim arrangement
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when the post falls vacant pending selection
and appointment of another eligible and
suitable candidate to the post and in similar
analogy giving additional charge of the post to a
superior officer is not contrary to the public
policy or against the interest of the institution.
(d) The High Court has fundamentally
misconstrued the provisions under the Act,
Regulations and the Scheme and has
erroneously opined that the Chairman, who was
holding the additional charge, had usurped the
position despite being eligible, qualified and
experienced.
(e) The conclusion that the Chairman,
who was age barred for holding the post of CEO,
should have been treated to be disqualified to
hold the post, is both fallacious on facts and
erroneous in law. There is no statutory provision
prescribing the age. That apart, the policy
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decision and the advertisement do not curtail
the power/authority of the Commission to make
any appropriate temporary arrangement, more
so, when it is so permissible under the Scheme.
13.Mr. Ramachandran, learned counsel, while
reiterating the submissions made by Mr. P.P. Rao,
further submitted that when the Chairman had
performed the duties of the CEO, there was no
justification to direct for recovery of the sum, for it
is unknown to service jurisprudence and in certain
circumstances amounts to beggary which is
enshrined under Article 23 of the Constitution of
India. The learned counsel would contend that Mr.
Jena who has earned his reputation in his own
field, despite the said order, had intimated CESU
that he would not function and he is not
functioning in praesenti.
14.Mr. Sahoo, appering in person and Mr. Aparajit
Ninawe, learned counsel, who assisted him,
Page 19 19
submitted that the verdict of the High Court is
absolutely flawless and relying on the additional
affidavit it has been put forth that the post of CEO
in CESU is a selection post which should have
been filled up through a public advertisement as
per the procedure of selection and, therefore, Mr.
Jena could not have been allowed to hold two
posts, namely, the Chairman of CESU as well as
the CEO. It is further contended that there is a
policy decision for filling up of posts for senior
positions in CESU and that being the position,
appointment of Mr. Jena is vitiated. The said policy
decision has been emphatically placed reliance
upon to highlight the factum of age which was 55
years in 2007. It is also asserted in the affidavit
that the age limit has been enhanced to 60 years
in the year 2012 but by the time Mr. Jena was
asked to take over the charge he was more than
69 years and, hence, he was ineligible to hold the
post.
Page 20 20
15. Before we advert to the aforesaid submissions
and the legal substantiality of the order passed by
the High Court, we may refer to certain authorities
that throw light on the duty of the Court while
dealing with a writ of quo warranto. In The
University of Mysore v. C.D. Govinda Rao and
another
1
, Gajendrakadkar, J. (as his Lordship then
was) speaking for the Constitution Bench, has
stated thus: -
“Broadly stated, the quo warranto proceeding
affords a judicial enquiry in which any person
holding an independent substantive public office,
or franchise, or liberty, is called upon to show by
what right he holds the said office, franchise or
liberty; if the inquiry leads to the finding that the
holder of the office has no valid title to it, the issue
of the writ of quo warranto ousts him from that
office. In other words, the procedure of quo
warranto confers jurisdiction and authority on the
judiciary to control executive action in the matter
of making appointments to public offices against
the relevant statutory provisions; it also protects a
citizen from being deprived of public office to
which he may have a right. It would thus be seen
that if these proceedings are adopted subject to
the conditions recognized in that behalf, they tend
1
AIR 1965 SC 491
Page 21 21
to protect the public from usurpers of public office;
in some cases, persons not entitled to public office
may be allowed to occupy 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 entitle 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.”
[Emphasis supplied]
16.In High Court of Gujarat and another v.
Gujarat Kishan Mazdoor Panchayat and
others
2
S.B. Sinha, J., in his concurring opinion,
while adverting to the concept of exercise of
jurisdiction by the High Court in relation to a writ
of quo warranto, has expressed thus: -
“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
2
(2003) 4 SCC 712
Page 22 22
or a write 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
3
, 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
4
.)
[Underlining is ours]
17.In Centre for PIL and Another v. Union of
India and Another
5
, a three-Judge Bench, after
referring to the decision in R.K. Jain (supra), has
ruled thus: -
“64.Even in R.K. Jain case, this Court observed
vide para 73 that judicial review is concerned with
whether the incumbent possessed qualifications
3
(1993) 4 SCC 119
4
(2002) 6 SCC 269
5
(2011) 4 SCC 1
Page 23 23
for the appointment and the manner in which the
appointment came to be made or whether the
procedure adopted was fair, just and reasonable.
We reiterate that the Government is not
accountable to the courts for the choice made but
the Government is accountable to the courts in
respect of the lawfulness/legality of its decision
when impugned under the judicial review
jurisdiction.”
18.From the aforesaid exposition of law it is clear as
noon day that the jurisdiction of the High Court
while issuing a writ of quo warranto is a limited
one and can only be issued when the person
holding the public office lacks the eligibility criteria
or when the appointment is contrary to the
statutory rules. That apart, the concept of locus
standi which is strictly applicable to service
jurisprudence for the purpose of canvassing the
legality or correctness of the action should not be
allowed to have any entry, for such allowance is
likely to exceed the limits of quo warranto which is
impermissible. The basic purpose of a writ of quo
warranto is to confer jurisdiction on the
constitutional courts to see that a public office is
Page 24 24
not held by usurper without any legal authority.
While dealing with the writ of quo warranto
another aspect has to be kept in view. Sometimes
a contention is raised pertaining to doctrine of
delay and laches in filing a writ of quo warranto.
There is a difference pertaining to personal
interest or individual interest on one hand and an
interest by a citizen as a relator to the court on the
other. The principle of doctrine of delay and
laches should not be allowed any play because the
person holds the public office as a usurper and
such continuance is to be prevented by the court.
The Court is required to see that the larger public
interest and the basic concept pertaining to good
governance are not thrown to the winds.
19.Mr. P.P. Rao, learned senior counsel, has
commended us to the decision in Hari Bansh Lal
v. Sahodar Prasad Mahto and others
6
, where
6
(2010) 9 SCC 655
Page 25 25
the learned Judges referred to the principles laid
down in Duryodhan Sahu (Dr.) v. Jitendra
Kumar Mishra
7
Ashok Kumar Pandey v. State
of W.B.
8
, B. Singh (Dr.) v. Union of India
9
,
Dattaraj Nathuji Thaware v. State of
Maharashtra
10
and Gurpal Singh v. State of
Punjab
11
and expressed the view thus: -
“The above principles make it clear that except for
a writ of quo warranto, public interest litigation is
not maintainable in service matters.”
20.Ordinarily, after so stating we would have
proceeded to scan the anatomy of the Act, the
7
(1998) 7 SCC 273
8
(2004) 3 SCC 349
9
(2004) 3 SCC 363
10
(2005) 1 SCC 590
11
(2005) 5 SCC 136
Page 26 26
Rules, the concept of the Scheme under the Act
and other facets but we have thought it imperative
to revisit certain authorities pertaining to public
interest litigation, its abuses and the way
sometimes the courts perceive the entire
spectrum. It is an ingenious and adroit innovation
of the judge-made law within the constitutional
parameters and serves as a weapon for certain
purposes. It is regarded as a weapon to mitigate
grievances of the poor and the marginalized
sections of the society and to check the abuse of
power at the hands of the Executive and further to
see that the necessitous law and order situation,
which is the duty of the State, is properly
sustained, the people in impecuniosity do not die
of hunger, national economy is not jeopardized;
rule of law is not imperiled; human rights are not
endangered, and probity, transparency and
integrity in the governance remain in a constant
state of stability. The use of the said weapon has
Page 27 27
to be done with care, caution and circumspection.
We have a reason to say so, as in the case at hand
there has been a fallacious perception not only as
regards the merits of the case but also there is an
erroneous approach in issuance of direction
pertaining to recovery of the sum from the holder
of the post. We shall dwell upon the same at a
later stage.
21.As advised at present, we may refer to certain
authorities in the field in this regard. In Bandhua
Mukti Morcha v. Union of India and others
12
,
Bhagwati, J., (as his Lordship then was) had
observed thus: -
“When the Court entertains public interest
litigation, it does not do so in a caviling spirit or in
a confrontational mood or with a view to tilting at
executive authority or seeking to usurp it, but its
attempt is only to ensure observance of social and
economic rescue programme, legislative as well as
executive, framed for the benefit of the have-nots
and the handicapped and to protect them against
12
AIR 1984 SC 802
Page 28 28
violation of their basic human rights, which is also
the constitutional obligation of the executive. The
Court is thus merely assisting in the realization of
the constitutional objectives.”
22.In Dr. D.C. Wadhwa and others v. State of
Bihar and others
13
, the Constitution Bench, while
entertaining a petition under Article 32 of the
Constitution on behalf of the petitioner therein,
observed that it is the right of every citizen to
insist that he should be governed by laws made in
accordance with the Constitution and not laws
made by the executive in violation of the
constitutional provisions. It has also been stated
therein that the rule of law constitutes the core of
our Constitution and it is the essence of rule of
law that the exercise of the power by the State
whether it be the legislature or the executive or
any other authority should be within the
constitutional limitation and if any practice is
adopted by the executive which is in flagrant
13
AIR 1987 SC 579
Page 29 29
violation of the constitutional limitations, a
member of the public would have sufficient
interest to challenge such practice and it would be
the constitutional duty of the Court to entertain
the writ petition.
23.In Neetu v. State of Punjab and others
14
, the
Court has opined that it is shocking to note that
Courts are flooded with large number of so called
public interest litigations where even a minuscule
percentage can legitimately be called as public
interest litigation. Commenting on entertaining
public interest litigations without being careful of
the parameters by the High Courts the learned
Judges observed as follows: -
“Though the parameters of public interest
litigation have been indicated by this Court in
large number of cases, yet unmindful of the real
intentions and objectives. High Courts are
entertaining such petitions and wasting valuable
14
AIR 2007 SC 758
Page 30 30
judicial time which, as noted above, could be
otherwise utilized for disposal of genuine cases.”
Thereafter, giving a note on caution, the Court stated: -
“Public interest litigation is a weapon which has to
be used with great care and circumspection and
the judiciary has to be extremely careful to see
that behind the beautiful veil of public interest an
ugly private malice, vested interest and/or
publicity seeking is not lurking. It is to be used as
an effective weapon in the armoury of law for
delivering social justice to the citizens.”
24.In State of Uttaranchal v. Balwant Singh
Chaufal and others
15
, this Court adverted to the
growth of public interest litigations in this country,
and the view expressed in various PILs and the
criticism advanced and eventually conceptualized
the development which is extracted below: -
“We deem it appropriate to broadly divide the
public interest litigation in three phases:
·Phase I. – It deals with cases of
this Court where directions and
orders were passed primarily to
protect fundamental rights under
Article 21 of the marginalized
groups and sections of the
15
(2010) 3 SCC 402
Page 31 31
society who because of extreme
poverty, illiteracy and ignorance
cannot approach this Court or
the High Courts.
·Phase II. – It deals with the cases
relating to protection,
preservation or ecology,
environment, forests, marine
life, wildlife, mountains, rivers,
historical monuments etc. etc.
·Phase III. – It deals with the
directions issued by the Courts
in maintaining the probity,
transparency and integrity in
governance.”
25.In Bholanath Mukherjee and others v.
Ramakrishna Mission Vivekananda
Centenary College and others
16
, it has been
laid down that public interest litigation would not
be maintainable in service law cases.
26.In Duryodhan Sahu (supra), a three-Judge,
Bench posed a question whether the
administrative tribunals constituted under the
Administrative Tribunals Act, 1985 can entertain a
16
(2011) 5 SCC 464
Page 32 32
public interest litigation. A post of lecturer was
created in a Government Medical College
recognized by the Medical Council of India and the
State Government requested the Public Service
Commission to recommend a suitable candidate
from the reserved list. At that stage, a third party
described himself as the Secretary of a particular
Surakhya Committee, filed an original application
for quashing the Government order creating the
post of the teacher. A grievance was also put
forth that the post was not advertised. The
tribunal restrained the appointment of the
beneficiary, the appellant before this Court. The
learned Judges opined that the administrative
tribunal constituted under the said Act cannot
entertain a public interest litigation at the
instance of a total stranger. While so stating the
three-Judge Bench opined that as the prayer was
for quashment of the creation of post itself and
preventing the authorities and for preventing the
Page 33 33
Government from appointing any candidate as
Lecturer, the prayer would not come in the sphere
of quo warranto.
27.Thus, from the aforesaid authorities it is quite
vivid that the public interest litigation was initially
evolved as a tool to take care of the fundamental
rights under Article 21 of the Constitution of the
marginalized sections of the society who because
of their poverty and illiteracy could not approach
the court. In quintessence it was initially evolved
to benefit the have-nots and the handicapped for
protection of their basic human rights and to see
that the authorities carry out their constitutional
obligations towards the marginalized sections of
people who cannot stand up on their own and
come to court to put forth their grievances.
Thereafter, there has been various phases as has
been stated in Balwant Singh Chaufal (supra).
It is also perceptible that court has taken note of
the fact how the public interest litigations have
Page 34 34
been misutilized to vindicate vested interests for
the propagated public interest. In fact, as has
been seen, even the people who are in service for
their seniority and promotion have preferred
public interest litigations. It has also come to the
notice of this Court that some persons, who
describe themselves as pro bono publico, have
approached the court challenging grant of
promotion, fixation of seniority, etc. in respect of
third parties.
28.Regard being had to the aforesaid enunciation of
law relating to two spheres, namely, issue of a
writ of quo warranto and the directions which are
justified to be issued in a public interest litigation
in the said context, we shall proceed to scrutinize
the legal substantiality of the judgment of the
High Court.
29.At this stage, it is necessary to understand the
Scheme framed by the State Commission as per
Page 35 35
the provisions of Section 22 of the Act. As stated
earlier, CESU was constituted by an order dated
8.9.2006 passed by the Commission. The Scheme
was amended from time to time vide notifications
dated 13.10.2006, 5.5.2007, 31.10.2007,
6.9.2008, 2.8.2010, 12.11.2010, 5.9.2011,
31.3.2012 and 17.9.2012. As per the Scheme a
CEO is to be appointed on the basis of a regular
advertisement published in the newspaper and
the advertisement prescribes the qualification and
other criteria to be satisfied by an applicant
aspirant to the post of CEO. The service
conditions of the CEO are decided by the State
Commission taking into consideration the situation
prevalent as per the resolution and orders passed
by the State Commission from time to time and
the said selection, is to be made in a transparent
manner. It is the stand of the appellant that Mr.
Jena was not appointed as CEO in accordance with
the procedure. It is to be noted that he was
Page 36 36
functioning as the Chairman of CESU. Sub-clause
(iv) of clause 4 of the amended Scheme dated
31.10.2007 may be reproduced with profit: -
“The CEO, CFO, COO and CCO should not hold any
other posts/office during their tenure in the CESU.
The terms of office, emoluments and conditions of
service of CEO, CFO, COO and CCO shall be such
as to be decided by the Commission by order
issued under this Scheme. The Commission may
extend their tenure for a further period, as it thinks
fit.”
29. Clause 5(ii) of 2007 Scheme enumerated the
powers and functions of the CEO. Clause 5 was
amended and thereafter on 12.11.2010 further
amendment was brought in. The amendment, inter
alia, substituted clause 4(iv). The following was
added to the existing clause 4 as clause 4(ix): -
“Whenever needed, the power, functions and
responsibilities of Chairman and CEO can be
discharged by one person, designated as
Chairman-cum-CEO.”
30. At this stage, it may be noted with profit that
the Commission vide letter dated 29.12.2007 had
communicated to the CESU about the terms and
Page 37 37
conditions for appointment of CEO. It reads as
follows: -
“1.Chief Executive Officer:
The Scale of Pay of the Chief Executive
Officers is fixed at Rs.18,400-500-22,400/-. The
Basic Pay of Shri Dasgupta joining in the post of
Chief Executive Officer is fixed at Rs.22,400/- per
month. Besides above, he is entitled to Dearness
Pay and DA at the current rate allowed by the
State Government. The cost to the Company per
month includes the House Rent Allowances,
Medical Allowances, Books, Periodical and
Telephone Allowances, Attendant’s Allowances, LTC
and personal Pay. Besides above, as Chief
Executive Officer would be entitled to Leave Salary
Contribution, Contributory Provident Fund, Service
Gratuity as applicable to the post, which are
included in the cost to Company.
The Chief Executive Officer is entitled to
Conveyance Allowance of Rs.20,000/- per month
for vehicle hired/owned by him along with the
driver’s pay + reimbursement of the cost of fuel
for official duty beyond the local duty
Or
He is entitled to a vehicle provided by the
CESU along with five liters of fuel per day for
personal use. The option is to be exercised by the
incumbent.
The personal Pay includes the Management
Allowances allowed to the post of Chief Executive
Officer which is the monthly pay out of Medi-claim
Insurance Premium and the Life Insurance
Page 38 38
Premium. As such all Medical Expenses shall be
borne by him. The Personal Pay shall be linked to
the performance of the Chief Executive Officer.
As negotiated at the time of interview the
appointment of Shri Swapan Dasgupta as CEO in
CESU is initially for a period of four years on
Contract Basis, which can be extended for one
year depending on the necessity of the
organization, performance and usefulness of the
officer and the cost to company shall be limited to
10% over and above his present entitled in CESC,
Kolkata.
The Contract can be terminated on either side
by three months notice or by payment/deposit of
three months’ emoluments in lieu of notice.”
31. When Mr. Swapan Dasgupta was appointed as
CEO, the conditions of appointment were – annual
package of Rs.22 lakhs with certain perquisites.
After Mr. Dasgupta submitted his letter dated
9.8.2010 requesting the Commission to relieve him
from the post of CEO, the Commission decided to
relieve him with effect from that date. Thereafter on
10.8.2010 the Commission passed the following
order: -
“At present, Shri B.C. Jena, Chairman, CESU
Management Board is closely monitoring the
overall functioning of CESU as per para 5 of the
Page 39 39
FIFTH Amendment to the Central Electricity Supply
Utility of Orissa (Operation and Management)
Scheme, 2006 notified by the Commission vide
Notification No. CESU(O&M)/4590 dtd. 03.8.2010.
It has been stipulated that the Chairman shall
guide, advise and have overall superintendence
and control over the CEO, CFO, COO, CCO, CPIO,
Sr. G.M. (HR) and CVO for smooth and efficient
functioning of the CESU. Since it will take quite
some time for the selection of a CEO to make
alternative arrangement, the Commission shall
have now decided that the function, duties and
responsibilities of CEO, CESU shall be discharged
by Shri B.C. Jena, Chairman, CESU Management
Board until further orders or until alternative
arrangement is made by the Commission. This
order will be effective from 10.8.2010.
Shri Jena will enjoy all the perquisites/
facilities as was being given to the CEO except the
monthly emoluments. The Commission would take
a view later on regarding the desirability of giving
an honorarium to the Chairman, CESU
Management Board for enabling him to discharge
his duties and responsibilities as a CEO over and
above the responsibilities of Chairman and his
other current assignments, if any.”
32. We may also note with profit that a policy
decision had been taken for preparing an
advertisement for appointment of the CEO at the
time of Sengupta’s appointment. It provided for
filling up of senior positions for CESU. It stipulated
that the tenure of appointment would be for a period
Page 40 40
of three years and extendable thereafter depending
upon the performance and the maximum age limit of
the candidate shall not exceed 55 years as on
1.9.2007. The qualification that was required was
that the CEO shall be a person with drive and
initiative and shall be in overall charge of
engineering, finance, commerce,
corporate/regulatory affairs and general
management. He should at least possess a degree
in electrical engineering. An added qualification of
MBA/CA/FICWA from a reputed University was
desirable. It was also stipulated that service
experience of about 15-20 years of which at least 5
years was a must for top managerial position.
33. Mr. Sahoo has brought on record an
advertisement for filling up the post for the period
2007-08. The advertisement dated 26.5.2012 has
also been brought on record. True it is, it is after the
judgment of the High Court and it reads as follows: -
Page 41 41
“The Chief Executive Officer shall be a person with
initiative a drive. He will be in overall charge of
engineering, finance, commerce, corporate/
regulatory affairs and general management of the
utility. This is a Board level position and he should
at least possess a professional degree in
Engineering or Management or Accountancy or
Law from a reputed University. He should have at
least 10 years experience in senior level
managerial position in a large organization.”
34. It also stipulates that the tenure of appointment
would be for a period of two years and extendable
thereafter depending upon the performance of the
candidate and the requirement of the organization
and the applicant should not be more than 60 years
of age as on 1.4.2012.
35. In this backdrop it is to be seen whether the
action of the authority requiring the Chairman to
remain in-charge of the CEO or to function as CEO
comes within the scope and ambit of writ of quo
warranto. We have already stated the principles
relating to exercise of jurisdiction of the court to
issue a writ of quo warranto. When a writ of quo
warranto is filed, it is the obligation of the relator to
Page 42 42
satisfy the court that the office in question is a
public office and is held by the usurper without the
legal authority. It is the duty of the court to see
whether the appointment has been made contrary to
the statutory rules. Issue of institutional integrity
has also to be taken into consideration when a post
is filled up and that is where the manner in which
the appointment came to be made or whether the
procedure adopted was fair, just and reasonable are
required to be seen. On a perusal of the reasons
adopted by the High Court it is perceptible that it
has paved a different path. It has given emphasis
on the role of the Commission, the functionism of
CESU, the control of the Chairman on the CEO, the
violation of the principles of natural justice, the
nature of appointment, the abuse of power by the
Commission and the violation of the regulations in
such appointment. In our opinion, most of the
reasons that have been given by the High Court are
totally unrelatable to the sphere of issue of writ of
Page 43 43
quo warranto. We are only required to see whether
the Commission had the authority to make any
temporary arrangement and whether the 5
th
respondent was eligible for the said purpose. To
understand the said facet, we have to refer to
certain provisions of the Act which encapsulate the
basic map of the functions of the licensees and the
utility service. Section 19 of the Act deals with
revocation of licence of a licensee. Section 20
provides for sale of utilities of licensees. It
prescribes the procedure and the arrangements to
be made by the Commission. Till the licence is sold,
the Commission has been authorised to make
interim arrangements. It has been conferred the
power to appoint Administrator of the utility. Section
22 takes care of the situation where no purchase
takes place, that is to say, when the utility is not
sold in the manner provided under Section 20 or
Section 24. We think it necessary to reproduce
Section 22 of the Act: -
Page 44 44
“22.Provisions where no purchase takes
place. – (1) If the utility is not sold in the manner
provided under section 20 or section 24, the
Appropriate Commission may, to protect the
interest of the consumers or in the public interest,
issue such directions or formulate such Scheme as
it may deem necessary for operation of the utility.
(2) Where no directions are issued or Scheme
is formulated by the Appropriate Commission
under sub-section (1), the licensee referred to in
section 20 or section 24 may dispose of the utility
in such manner as it may deem fit.
Provided that, if the licensee does not dispose
of the utility, within a period of six months from
the date of revocation, under section 20 or section
24, the Appropriate Commission may cause the
works of the licensee in, under, over, along or
across any street or public land to be removed and
every such street or public land to be reinstated,
and recover the cost of such removal and
reinstatement from the licensee.”
From the aforesaid provision, it is limpid that the
Commission has been conferred power to formulate a
Scheme or issue directions in the public interest so that
operation of the utility service is not put to hazard.
36. In the case at hand, as has been stated earlier,
the utility service came into existence after
formulation of a Scheme. The Scheme has been
amended from time to time. The High Court has
Page 45 45
referred to clause 4(iv) and clause 5 of the Scheme.
We think it appropriate to reproduce clause 4(iv) and
clause 5 of the Scheme as reproduced by the High
Court: -
“(iv)The CEO, CFO and COO should not hold any
other posts/office during their tenure in the CESU.
The terms of office, emoluments and conditions of
service of CEO, CFO and COO shall be such as to
be decided by the Commission by order issued
under this Scheme. The Commission may extend
their tenure for a further period, as it thinks fit.”
xxx xxx xxx
Clause 5 :
“(i)Chairman
(a) He shall preside over all Board Meetings.
(b) He shall guide, advise and have overall
superintendence and control over the CEO,
CFO and COO for smooth and efficient
functioning of the CESU.
(c) He shall decide all the matters referred to
him by the Board.
(d) He shall discharge all other duties
assigned by the Commission under the
Scheme.
(ii)Chief Executive Officer (CEO)
Page 46 46
Subject to overall supervision, control and
delegation of power by the Management
Board and directions of the Commission –
(a) He shall act as Chief Executive and Chief
Spokesman of the CESU.
(b) He shall manage the day-to-day affairs
and management of CESU and shall represent
the CESU before the Commission and other
Authorities.
(c) He shall carry out and implement the
orders and directions issued by the
Commission to the CESU.
(d) He shall carry out and implement the
resolutions/decisions taken by the
Management Board.
(e) In consultation with the Management
Board, he shall design and implement the
organizational structure and management of
the CESU.
(f) In the name and on behalf of the CESU, he
shall enter into contract with all external
agencies and take loans from
funding/financial institutions.
(g) On behalf of the CESU, he shall discharge
all its statutory/regulatory requirement and
obligations.
(h) Any other function as may be assigned by
the Commission or the Management Board
from time to time under the Scheme.
(i) The CEO shall report to the Chairman.”
Page 47 47
37. After reproducing the same the High Court has
opined thus: -
“On reading of all the aforesaid relevant clauses it
is very clear that the Chairman of the CESU is
required to supervise the smooth functioning of the
CESU and Chief Executive Officer is to act under
the control of the Chairman. That being the
position and the opp. party no. 3, who is a retired
officer and the Chairman of CESU could not have
been appointed as Chief Executive Officer. If the
post of Chief Executive Officer in the Organization
falls vacant in view of the urgency of either
temporary appointment can be made or in charge
arrangement can be made for temporary period,
but the same power could not have been conferred
upon the Chairman as the Chairman is required to
supervise and control the function of Officers of the
Board as well as in the Organization, therefore his
appointment as Chief Executive Officer as an
alternative arrangement is contrary to Clause 5 of
the Scheme referred to supra. The powers and
functions of the Chief Executive Officer have been
extracted above. Further, as could be seen from
the impugned order, the appointment in question
is styled as temporary in nature. If the post falls
vacant, it is the duty of the Commission to see that
the post is filled up by following the service
regulations.”
38. Thereafter, the High Court has referred to the
resolution dated 12.11.2010 by which the
Commission had allowed Mr. Jena to continue as
Chairman-cum-CEO to discharge the duties and
Page 48 48
responsibilities until further orders and was
extended the benefit of consolidated honorarium of
Rs.70,000/- per month in addition to the usual
perquisites as enjoyed by the CEO. After so stating,
the High Court has proceeded to express thus: -
“24.The contention urged on behalf of opp. party
no. 2-Secretary, OERC is that only temporary
arrangement has been made fixing a monthly
honorarium of Rs.70,000/- which is payable to the
Chief Executive Officer. It is unknown to the
service jurisprudence that an employee/officer who
is put in charge of another office or post in addition
to his own duty is to be granted honorarium. The
same is totally impermissible in law. On reading
Annexures-3 & 5, we are of the view that it is not
legally correct on the part of the Commission to
appoint the Chairman as the Chief Executive
Officer, which is contrary to the service
regulations. opp. party no. 3 should not have been
placed on temporary arrangement as the Chief
Executive Officer having regard to the nature of
powers and functions required to be discharged by
the Chairman who has been put in charge of the
Chief Executive Officer who is under the control
and supervision of the Chairman. He cannot
supervise his own work which is the violation of
principle of natural justice. He cannot find out his
own defect and discharge his responsibilities.
25.Therefore, we are of the view that the
Commission has acted illegally and in violation of
service regulations placing the opp. party no.3 in
the post of Chief Executive Officer and further
granting him honorarium w.e.f. 11.08.2010 vide
Page 49 49
letter dated 12.11.2010 under Annexure-5, which
is a clear case of abuse of power of the
Commission and the said appointment order is
without authority of law and opp. party no.3 should
not have been entrusted with the duties, functions
and responsibilities of the CEO while functioning as
Chairman of CESU. Therefore, we are of the view
that both Annexures-3 & 5 are liable to be quashed
and the same are accordingly quashed and a writ
of quo warranto is issued forthwith as the opp.
party no.3 is not competent to hold the post of
Chief Exeucitve Officer of CESU.”
39. We have reproduced the order in extenso
because we are of the considered opinion that the
reasons are flawed. The Commission has the power
under the Scheme to give additional charge of CEO
to the Chairman. The Scheme is framed by the
Commission. The whole thing is controlled by the
language used in the Scheme. The High Court,
instead of appreciating the eligibility of the 5
th
respondent, has adverted to the concept of internal
administration of CESU, that is, CEO is required to
report to the Chairman and if the Chairman remains
in charge, his actions may go without scrutiny. The
assumption in this regard is not correct. The Board
has the overall power of supervision and
Page 50 50
management. That apart, the power is vested with
the Commission to do so under the Scheme. The
High Court has also referred to certain provisions
about the regulations. Needless to emphasise, the
said regulations operate in a different field
altogether and have nothing to do with any
appointments under the Scheme. The only thing
which has been highlighted by the 1
st
respondent is
that it was accepted by the High Court that he was a
retired officer and was appointed as Chairman and
further was asked to remain in charge of CEO and
was given some honorarium, which is impermissible.
In fact, what is submitted is that he becomes an
appointee in respect of two posts which the law does
not countenance. The said submission suffers from
a fundamental fallacy. The Chairman of CESU is a
honorary post. He was getting sitting fees for
attending the meetings. He was not even given a
fixed honorarium. Therefore, to conclude that he
Page 51 51
was holding two posts and drawing salary for both
the posts is factually incorrect.
40. The whole thing has to be scrutinized from the
point of view of power. Suitability or eligibility of a
candidate for appointment to a post is within the
domain of the appointing authority. The only thing
that can be scrutinized by the Court is whether the
appointment is contrary to the statutory
provisions/rules. In Hari Bansh Lal (supra) the
Court took note of the stand of the Law Officer of
Jharkhand State Electricity Board and commented on
the somersault in the stand made by the State and
thereafter proceeded to note that the appellant Hari
Bansh Lal had retired in 1985 and there is no
prescription for upper age limit for appointment as
Member or Chairman of the Board. The Court took
note of the encomiums by the Electricity Board and
the State Government before the High Court.
Eventually, the learned Judges opined thus: -
Page 52 52
“43.Though, in the PIL, the writ petitioner has
mentioned the age of Mr. Lal as 90, it is factually
incorrect and Mr Lal himself swore an affidavit and
asserted and it is 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.”
xxx xxx xxx
“45.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 the Electricity Board.”
41. Keeping the aforesaid opinion in mind, we shall
address to the controversy in the case at hand.
From the factual depiction it is seen that though the
policy and the Scheme provide that the age of the
candidate shall not exceed 55 years as on 1.9.2007,
yet the tenure is extendable thereafter depending
upon the performance. We have referred to the
same only for the purpose that though there is a
maximum age limit at the time of submission of an
Page 53 53
application, yet the term can be extended. It may
be apposite to note here that even if the maximum
age limit is provided for submission of application
and the period of appointment is three years, it is
extendable depending upon the performance.
Having regard to the nature of language used, it is to
be construed that it is a contract appointment to
choose a highly qualified and skilled person. The
extension is also dependant upon performance. No
limit is provided for number of extensions. It would
depend upon the capability, efficiency and suitability
as adjudged by the employer. Needless to say, for
grant of extension the person would not have a
right. Similarly his continuance for the term of three
years will depend upon the nature of appointment
letter issued to him. Thus viewed, we are inclined to
think that the principle stated in Hari Bansh Lal’s
case would get attracted. That apart, there is no
maximum age limit for Chairman. He holds a higher
post and his experience and capability have been
Page 54 54
appreciated by the Commission. It is a well known
principle that the employer can ask an officer to
remain in charge of another office till the said post is
filled up. It is within the permissible authority of the
employer. Under the Scheme the Chairman was not
getting any remuneration. He was only getting
sitting fees. Looking at his ability and efficiency the
Commission thought it appropriate that he should be
given the charge of CEO and accordingly an
honorarium was fixed. Honorarium was not
equivalent to the salary. The High Court has
erroneously opined that it was an appointment. The
5
th
respondent was not getting two sets of salary.
Thus analysed, we have no hesitation that the
reasons ascribed by the High Court to quash the
arrangement are unacceptable and, accordingly, the
decision on that score deserves to be lancinated and
we so do.
42.We may proceed to state that once we have
dislodged the the decision of the High Court
Page 55 55
whereby it has opined that the Chairman could not
have been allowed to remain in-charge of CEO as a
logical corollary the direction for recovery gets
annulled. But we think it appropriate to add
something. Even in a writ of quo warranto while
declaring that a person is not eligible to hold the
post had rendered service, we are disposed to think,
there cannot be recovery of amount. While
exercising the power for issue of writ of quo
warranto the Court only makes a public declaration
that the person holding the public office is a usurper
and not eligible to hold the post and after the
declaration is made he ceases to hold the office. Till
the declaration is made, the incumbent renders
service and when he has rendered service he cannot
be deprived of his salary. Denial of pay for the
service rendered tantamounts to forced labour which
is impermissible. When an appointment is admitted
and the incumbent functions in the post and neither
suspended nor removed from service, he is entitled
Page 56 56
to get salary, for it is his legal right and it is the duty
of the employer to pay it as per the terms and
conditions of the appointment. The matter may be
different when someone continues after retirement
by a false declaration or misrepresentation.
Recovery of salary would amount to deprivation of
payment while the incumbent was holding the post
and had worked. Asking someone to work and when
his appointment is nullified by issue of a writ of quo
warranto by the Court, we think that neither the
employer can recover the amount nor the Court can
direct for recovery of the same. There has to be
some other reason for denial of payment, recovery
of salary or honorarium. In this context, we may
fruitfully reproduce a passage from People’s Union
for Democratic Rights and others v. Union of
India and others
17
: -
17
(1982) 3 SCC 235
Page 57 57
“... if a person has contracted with another to
perform service and there is consideration for such
service in the shape of liquidation of debt or even
remuneration he cannot be forced, by compulsion
of law or otherwise, to continue to perform such
service, as that would be forced labour within the
inhibition of Article 23. This Article strikes at every
form of forced labour even if it has its origin in a
contract voluntarily entered into by the person
obligated to provide labour or service (vide Pollock
v. Williams
18
). The reason is that it offends against
human dignity to compel a person to provide
labour or service to another if he does not wish to
do so, even though it be in breach of the contract
entered into by him. There should be no serfdom
or involuntary servitude in a free democratic India
which respects the dignity of the individual and the
worth of the human person.”
43. In view of the aforesaid analysis we are of the
resolute opinion that even while issuing a writ of quo
warranto there cannot be any direction for recovery
of the sum. While entertaining a PIL pertaining to a
writ of quo warranto we would add that it is the
obligation of the court to pave the path which are
governed by constitutional parameters and the
precedential set-up. It is to be borne in mind that
laws are commended to establish a society as
18
322 US 4 : 88 L Ed 1095
Page 58 58
required by the paradigms laid down by law. The
courts while implementing law may not always be
guided by total legalistic approach but that does not
necessarily mean to move on totally moralistic
principle which has no sanction of law. We have
been constrained to say so as we find that there is a
temptation to say something in a public interest
litigation which can be construed as the overreach.
It needs no special emphasis to state that
formulations of guidelines or directions issued are
bound to be within the constitutional parameters.
44. The matter may be viewed from the point of
view of the 5
th
respondent. True it is, his remaining
in-charge of the post of the CEO was called in
question before the High Court in a public interest
litigation wherein a writ of quo warranto was issued.
A judgment can be erroneous but when there is a
direction for recovery of the honorarium, it
indubitably creates a dent in the honour of a person.
Honour once lost may be irredeemable or
Page 59 59
irresuscitable. Mr. Ramachandran has number of
times submitted before us that because of the
humiliation faced, the 5
th
respondent decided not to
continue in the post of the Chairman also. We have
stated so because we strongly feel that a cautious
approach is requisite while dealing with a writ of quo
warranto.
45. Resultantly, the appeals are allowed and the
judgment and order passed by the High Court is set
aside. In the facts and circumstances of the case
there shall be no order as to costs.
……………………… ..J.
[Anil R. Dave]
……………………… ..J.
[Dipak Misra]
New Delhi;
November 01, 2013.
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