Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7600 OF 2012

@ Special Leave Petition (C) No.1673/2012

Rajesh Awasthi .. Appellant

Versus

Nand Lal Jaiswal & Ors. .. Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.Leave granted.

2.We are, in this case, concerned with the question whether

the High Court was justified in issuing a writ of quo warranto

holding that the appellant has no authority in continuing as

Page 2 2

Chairperson of U.P. State Electricity Regulatory Commission (for

short ‘the Commission’) on the ground that the Selection

Committee had not complied with sub-section (5) of Section 85 of

the Electricity Act, 2003 (for short ‘the Act’).

3.The post of the Chairperson of the Commission fell vacant on

21.10.2008. The government of Uttar Pradesh, in exercise of its

powers conferred under Section 85(1) of the Act, constituted a

Selection Committee vide notification dated 22.12.2008 consisting

of three members headed by a retired judge of the High Court and

two other members i.e. Chief Secretary of the State of U.P. and

Chairman of the Central Electricity Commission for finalizing the

selection of the Chairperson. Applications were invited intimating

various authorities including Ministry of GOI, CAG, CEA, all the

Secretaries of Power working in different States in the country,

CBDT, PSUs power sectors etc. Thirty persons applied for the

post including the appellant. The meeting of the Selection

Committee was held on 26.12.2008 and Selection Committee

selected two persons on merit, namely, the appellant and one Mr.

Page 3 3

Amit Kumar Asthana. Panel of two names was forwarded by the

Selection Committee to the government of U.P. with an asterisk

against the name of the appellant stating that if he was appointed,

the government would ensure first that the provisions of sub-

section (5) of Section 85 of the Act would be complied with. The

government appointed the appellant as the Chairman of the

Commission on 29.12.2008. The appellant on that date sent a

letter to the State Government stating that he had resigned from

his previous assignments on 27.12.2008 and severed all his links

with the private sector as required under Section 85 of the Act.

4.The first respondent herein who was the General Secretary,

Jal Vidyut Unit, filed a writ petition before the High Court of

Allahabad, Lucknow Bench seeking a writ of quo warranto,

challenging the appointment of the appellant on various grounds.

Apart from the contention that the Selection Committee had not

followed the provisions contained in sub-section (5) of Section 85

of the Act, it was also alleged that the appellant could not have

been selected since he was working as the Joint President of the

Page 4 4

J.P. Power Ventures Ltd at the time of selection, hence he had

financial and other interests in that company which would

prejudicially affect his functions as the Chairperson of the

Commission. Further, it was also pointed out that the procedure

laid down in U.P. Electricity Regulatory Commission (Appointment

and Conditions of Service of the Chairperson and Members) Rules,

1999 (for short ‘the 1999 Rules’) were also not complied with

before initiating the selection process. The appellant questioned

the locus standi of the first respondent and contended that he was

not an aspirant for the post and that the writ petition was filed

after a period of more than two years after his assumption of

charge as Chairperson of the Commission. Referring to the

minutes of the Selection Committee dated 26.12.2008, it was

pointed out that the selection was validly made and the appellant

was ranked first in panel on merit and sub-section (5) of Section

85 was also complied with. Further, it was stated that the

appellant had no financial or other interests in J.P. Power Venture

Ltd. so as to prejudicially affect his functions as Chairperson. In

any view, it was pointed out that he had resigned from that post

Page 5 5

on 27.12.2008.

5.The High Court after considering the rival contentions came

to the conclusion that the Selection Committee had failed to follow

the provisions of sub-section (5) of Section 85 of the Act, hence the

appointment was vitiated and the appellant had no authority to

hold the post of Chairperson. Further, it was also found that the

Selection Committee had no power to delegate the powers

conferred on it under Section 85(5) of the Act to the State

Government. The court also held that the first respondent had

sufficient locus standi to move the writ petition and the delay in

approaching the court was not a ground, since a person who had

been appointed contrary to a statutory provisions had no legal

right to hold on to that post. The High Court, therefore, allowed

the writ petition, issued a writ of quo warranto and quashed the

appointment of the appellant declaring the same as illegal and

void.

6.Shri L. Nageswara Rao, learned senior counsel appearing for

the appellant submitted that the High Court has committed an

Page 6 6

error in holding that the appointment of the appellant was in

violation of sub-section (5) of Section 85 of the Act. Learned

senior counsel took us through the minutes of the Committee

meeting held on 26.12.2008 and pointed out that the Selection

Committee, after examination of the bio-data of 30 candidates,

prepared a panel in which the appellant’s name was shown as

first in the order of merit. The Selection Committee, according to

learned counsel, was very much aware of the fact that the

appellant was the joint Vice President of J.P. Power Venture Ltd.

and hence had put an asterisk against his name and reminded

the State Government that if he was to be appointed, the

provisions of sub-section (5) of Section 85 of the Act be first

ensured. Learned senior counsel, therefore, submitted that there

was substantial compliance of that provision and in any view it is

only a curable defect, procedural in nature and a writ of quo

warranto be not issued, being a discretionary remedy. Referring

to the judgment of this Court in University of Mysore & Anr. v.

C.D. Govinda Rao & Anr. (1964) 4 SCR 575, learned senior

counsel submitted that the suitability arrived at by the Committee

Page 7 7

is not a matter amenable to proceedings under quo warranto.

Learned senior counsel also referred to the judgments of this

Court in Mahesh Chandra Gupta vs. Union of India (2009) 8

SCC 273 , Hari Bansh Lal v. Sahodar Prasad Maht and

others (2010) 9 SCC 655.

7.Learned senior counsel submitted that, in any view of the

matter, writ of quo warranto will not lie where the breach in

question is curable, hence procedural in nature. Assuming there

is non-compliance of sub-section (5) of Section 85 of the Act, the

matter can be relegated back to Selection Committee for due

compliance of that provision. Learned senior counsel also

submitted that the writ of quo warranto is a discretionary remedy

and hence such a course can be adopted by this Court. Reference

was also made to the judgment of this Court in B. Srinivasa

Reddy v. Karnataka Urban Water Supply & Drainage Board

Employees Associaition (2006) 11 SCC 731.

8.Mr. Prashant Bhushan, learned counsel appearing for the

first respondent submitted that the High Court has rightly issued

Page 8 8

the writ of quo warranto after having found that the appointment

was made in gross violation of sub-section (5) of Section 85 of the

Act. Learned counsel submitted that even the procedure laid

down in 1999 Rules was also not complied with. Learned counsel

referring to the bio-data of the applicants for the post of

Chairperson tried to make a comparison of the merit of other

candidates and submitted that many of the candidates who had

applied were far superior to the appellant. Learned counsel also

submitted that the appellant was appointed due to extraneous

reasons and the merit was not properly assessed, leave aside, the

non-compliance of sub-section (5) of Section 85 of the Act and

1999 Rules. Learned counsel also pointed out that since the

appellant was Joint President of the J.P. Power Venture Ltd. - a

private company at the time of selection, he was disqualified in

occupying the post of Chairperson since he had financial and

other interest which would prejudicially affect his functions as

Chairperson. Mr. Ravindra Shrivastava, learned senior counsel

appearing for the state of U.P. submitted that the appointment of

the appellant was in violation of sub-section(5) of Section 85 of the

Page 9 9

Act and the 1999 Rules and the State is taking steps to conduct

fresh selection after complying with the provisions of the Act and

2008 Rules, which is in force.

9.We heard learned counsel appearing on either side. The

locus standi of the first respondent or the delay in approaching the

writ court seeking a writ of quo warranto was not seriously

questioned or urged before us. The entire argument centered

around the question whether there was due compliance of the

provisions of sub-section (5) of Section 85 of the Act. Section 85 is

given for ready reference:

“SECTION 85: Constitution of Selection

Committee to select Member of the State

Commission :

(1) The State Government shall, for the purposes of

selecting the Members of the State Commission,

constitute a Selection Committee consisting of –

(a) a person who has been a Judge of the High

Court… . Chairperson;

(b) the Chief Secretary of the concerned State…

.Member;

(c) the Chairperson of the Authority or the

Chairperson of the Central Commission … … … …

.. Member:

Provided that nothing contained in this section

shall apply to the appointment of a person as the

Page 10 10

Chairperson who is or has been a Judge of the High

Court.

(2) The State Government shall, within one month

from the date of occurrence of any vacancy by reason of

death, resignation or removal of the Chairperson or a

Member and six months before the superannuation or

end of tenure of the Chairperson or Member, make a

reference to the Selection Committee for filling up of the

vacancy.

(3) The Selection Committee shall finalise the

selection of the Chairperson and Members within three

month from the date on which the reference is made to

it.

(4) The Selection Committee shall recommend a panel

of two names for every vacancy referred to it.

(5) Before recommending any person for appointment

as the Chairperson or other Member of the State

Commission, the Selection Committee shall satisfy itself

that such person does not have any financial or other

interest which is likely to affect prejudicially his

functions as Chairperson or Member, as the case may

be.

(6) No appointment of Chairperson or other Member

shall be invalid merely by reason of any vacancy in the

Selection Committee.”

10.The Electricity Act, 2003 is an Act enacted to consolidate the

laws relating to generation, transmission, distribution, trading

and use of electricity and generally for taking measures conducive

to development of electricity industry, promoting competition

therein, protecting interest of consumers and supply of electricity

to all areas, rationalization of electricity tariff etc. The Act also

Page 11 11

envisages the constitution of Central Electricity Authority,

Regulatory Commission and establishment of Appellate Tribunal

etc. The State Electricity Regulatory Commission (for short ‘the

State Commission’) is constituted under sub-section (1) of Section

82 of the Act. Sub-section (5) of Section 85 of the Act states that

the Chairperson and Members of the State Commission shall be

appointed by the State Government on the recommendation of a

Selection Committee as per Section 85 of the Act. Section 84 of

the Act deals with the qualifications for appointment of

Chairperson and Members of the State Commission which reads

as follows:

“84. Qualifications for appointment of

Chairperson and Members of State Commission:

(1) The Chairperson and the Members of the State

Commission shall be persons of ability, integrity and

standing who have adequate knowledge of, and have

shown capacity in, dealing with problems relating to

engineering, finance, commerce, economics, law or

management.

(2) Notwithstanding anything contained in sub-

section (1), the State Government may appoint any

person as the Chairperson from amongst persons who

is, or has been, a Judge of a High Court.”

11.The Chairperson, therefore, shall be a person of ability,

Page 12 12

integrity and standing and has adequate knowledge of, and has

shown capacity in, dealing with problems relating to engineering,

finance, commerce, economics, law or management. The

Selection Committee, as per Section 85, has to recommend a

panel of two names for filling up the post of the Chairperson, but

before recommending any person for appointment as the

Chairperson, the Selection Committee has to satisfy itself that

such person does have any financial or other interest which is

likely to affect prejudicially his functions as Chairperson. The

State Government under Section 82(5) of the Act has to appoint

the Chairperson on the recommendation of the Selection

Committee.

12.We have gone through the minutes of the Selection

Committee meeting dated 26.12.2008 and also the bio-data of the

applicants for the post of Chairperson of the State Commission.

Reference to the bio data of some of the candidates is useful,

hence given below:

Page 13 13

Bio-data of applicants for the post of Chairperson U.P.E.R.C.

S.No.

and

name

Date of

Birth

Educational Qualification Retd.

From

Post Holding Experience

Academic Professionalspecialization

1. S.K.

Shukla

01-01-

1950

BE (Mech.

Engg.

ME (Prod.

Engg.)

Director

(Technical)

Tehri Hydro

Devpt.

Corporation

33 years in

T.H.D.C.

3. Anil

Kumar

Asthana

29-07-

1952

B. Tech.

(Electrical)

M.Tech

(Power App.

& Systems)

Chief Engr.

System

planning &

Project

appraisal CEA

33 Years in CEA

Transmission

and grid

opration

18. U.C.

Misra

31-07-

1949

B.E.

(Electri-

cal Engg.)

Chairman

Bhakra Beas

Management

Board

4.5 Years

UPSEB, 15

Years NHPC, 16

Years PGCIL, 2

Years Chairman

BBMB

20.

Rajesh

Awasthi

19-01-

1950

Civil &

Municipal

Engg.

Graduate

Joint President

J.P. Power

Ventures

3 Years Central

Designs

Organization

Government of

Maharashtra,

7.5 Years

Mining & Allied

Machinery Co.

Ltd., W.B., 24.5

Years NTPC,

Joint President

J.P. Power

Ventures Ltd.

from 17.11.08

21. S.M.

Agarwal

15-06-

1949

B.Sc.

(Elec.

Engg.)

M.Sc. (Elec

Engg.)

D.G.

(Trg.&HRD)

UPPCL

36 Years UPSEB

/ UPPCL

24. Dr.

Man

Mohan

01-08-

1946

B.E.

(Elect.)

M.E.

(Power

System)

Ph.D.

(Commercial

Availability

Index of

Power Plant)

Member

(Technical)

Gujarat ERC

29.5 Years in

CEA, 3 Years

NTPC, 2 Years

as Engr, Grade-

I, Govt. of Libya,

4 Years in

Gujrat ERC.

Page 14 14

13.Illustrative bio-data of some of the candidates would indicate

their academic qualifications, professional experience including

the area of specialization. Appellant’s qualification, experience

and the fact that he was the Joint President of J.P. Power

Ventures Ltd., was also indicated. The Selection Committee has

put an asterisk against his name and then left it to the

government to ensure the compliance of sub-section (5) of Section

85 of the Act.

14.We will examine the meaning and content of Section 85(5)

and whether it calls for any interpretation. Lord Brougham in

Crowford v. Spooner (1846) 6 Moore PC 1 has stated that “one

has to take the words as the Legislature has given them, and to

take the meaning which the words given naturally imply, unless

where the construction of those words is, either by the preamble

or by the context of the words in question controlled or altered”.

Viscount Haldane in Attorney General v. Milne (1914-15) All

England Report 1061 has held that the language used “has a

natural meaning, we cannot depart from that meaning unless,

Page 15 15

reading the statute as a whole, the context directs us to do so”.

Viscount Simon, L.C. in Nokes v. Dancaster Amalgamated

Collieries Ltd. (1940) 3 All England Report 549 has held “the

golden rule is that the words of a statute must prima facie be

given their ordinary meaning”. Above principles have been

repeated umpteen times by the House of Lords and this Court and

hence, calls for no further elucidation.

15.We are clear in our mind about the language used in sub-

section (5) of Section 85 of the Act, which calls for no

interpretation. Words are crystal clear, unambiguous and when

read literally, we have no doubt that the powers conferred under

sub-section (5) of Section 85 of the Act has to be exercised by the

Selection Committee and the Committee alone and not by the

Government. Some of the words used in sub-section (5) of Section

85 are of considerable importance, hence, we give some emphasis

to those words such as “before recommending ” , “the Selection

Committee shall satisfy ” and “itself ” . The Legislature has

emphasized the fact that ‘the Selection Committee itself has to

Page 16 16

satisfy’, meaning thereby, it is not the satisfaction of the

government what is envisaged in sub-section (5) of Section 85 of

the Act, but the satisfaction of the Selection Committee. The

question as to whether the persons who have been named in the

panel have got any financial or other interest which is likely to

affect prejudicially his functions as Chairperson, is a matter which

depends upon the satisfaction of the Selection Committee and that

satisfaction has to be arrived at before recommending any person

for appointment as Chairperson to the State Government. The

government could exercise its powers only after getting the

recommendations of the Selection Committee after due

compliance of sub-section (5) of Section 85 of the Act. The

Selection Committee has given a complete go-by to that provision

and entrusted that function to the State Government which is

legally impermissible. The State Government also, without

application of mind and overlooking that statutory provision,

appointed the appellant.

16.A writ of quo warranto will lie when the appointment is made

Page 17 17

contrary to the statutory provisions. This Court in Mor Modern

Coop. Transport Coop. Transport Society Ltd. v. Govt. of

Haryana (2002) 6 SCC 269 held that a writ of quo warranto can

be issued when appointment is contrary to the statutory

provisions. In B. Srinivasa Reddy (supra), this Court has

reiterated the legal position that the jurisdiction of the High Court

to issue a writ of quo warranto is limited to one which can only be

issued if the appointment is contrary to the statutory rules. The

said position has been reiterated by this Court in Hari Bans Lal

(supra) wherein this Court has held that for the issuance of writ of

quo warranto, the High Court has to satisfy that the appointment

is contrary to the statutory rules.

17.We are of the view that the principle laid down by this Court

in the above-mentioned judgment squarely applies to the facts of

this case. The appointment of the first respondent, in our

considered view, is in clear violation of sub-section (5) of Section

85 of the Act. Consequently, he has no authority to hold the post

of Chairperson of the U.P. State Electricity Regulatory

Page 18 18

Commission.

18.We express no opinion with regard to the contentions raised

by the first respondent that the appellant had links with J.P.

Power Ventures Ltd. According to the first respondent, the

appellant had approved the higher tariff right to favour M/s J.P.

Power Ventures Ltd., vide his order dated 27.8.2010. We have

already found that the question as to whether, being Vice

President of the J.P. Power, the appellant had any financial or

other interest which would prejudicially affect his function as

chairperson was an issue which the Selection Committee ought to

have considered. We may point out that when the Selection

Committee was constituted, 1999 Rules were in force and the

present 2008 Rules came into force only on 1.1.2009. By virtue of

Section 85 of the Act, the then existing Rules 1999 were also

safeguarded. Section 3 of the 1999 Rules deals with the selection

process for the post of Chairperson, which is almost pari-materia

to the 2008 Rules. Sub-section (3) of Rule 3 is of some relevance,

hence we extract the same:

Page 19 19

“3 (3)The convener shall sand requisition for the

selection of any member for the aforesaid posts to

different departments of State Governments and Central

Govt., Public and Private Undertakings, Industrial

Enterprises and to Organisation engaged in generation,

distribution and supply of electricity, financial

institutions, educational institutions and to the High

Court and shall also invite applications directly from

eligible persons by notifying the vacancy in the

Government Gazette. The eligible persons may send their

applications directly or through an officer or authority

under whom he is for the time being working.”

19.The above-mentioned statutory requirements were also not

followed in the instant case, over and above, the non-compliance

of sub-section (5) of Section 85 of the Act.

20.We fully agree with the learned senior counsel for the

appellant that suitability of a candidate for appointment does not

fall within the realm of writ of quo warranto and there cannot be

any quarrel with that legal proposition. Learned senior counsel

also submitted that, assuming that the Selection Committee had

not discharged its functions under sub-section (5) of Section 85 of

the Act, it was only an omission which could be cured by giving a

direction to the Selection Committee to comply with the

Page 20 20

requirement of sub-section (5) of Section 85 of the Act. Learned

senior counsel submitted that since it is a curable irregularity, a

writ of quo warranto be not issued since issuing of writ of quo

warranto is within the discretion of the Court. Learned senior

counsel made reference to the judgment of Court in R. v. Speyer

(1916) 1 K.B. 595.

21.We are of the view that non-compliance of sub-section (5) of

Section 85 of the Act is not a procedural violation, as it affects the

very substratum of the appointment, being a mandatory

requirement to be complied with, by the Selection Committee

before recommending a person for the post of Chairperson. We

are of the view that non-compliance of sub-section (5) of Section

85 of the Act will vitiate the entire selection process since it is

intended to be followed before making the recommendation to the

State Government. Non-compliance of mandatory requirements

results in nullification of the process of selection unless it is

shown that performance of that requirement was impossible or it

could be statutorily waived. The expression “before

Page 21 21

recommending any person” clearly indicates that it is a mandatory

requirement to be followed by the Selection Committee before

recommending the name of any person for the post of

Chairperson. The expression “before” clearly indicates the

intention of the Legislature. The meaning of the expression

“before” came for consideration before this Court in State Bank

of Travancore v. Mohammad (1981) 4 SCC 82 where the words

“any debt due at and before the commencement of this Act to any

banking company” as occurring in section 4(1) of the Kerala

Agriculturist Debt Relief Act, 1970, were construed by the

Supreme Court to mean “any debt due at and before the

commencement of this Act”. We, therefore, find it difficult to

accept the contention of learned senior counsel that this, being a

procedural provision and non-compliance of sub-section (5) of

Section 85 of the Act, is a defect curable by sending the

recommendation back to the Selection Committee for compliance

of sub-section (5) of Section 85 of the Act.

22.We are, therefore, in agreement with the High Court that the

Page 22 22

appointment of the appellant was in clear violation of sub-section

(5) of Section 85 of the Act and, consequently, he has no authority

to hold the post of the Chairperson of the Commission and the

High Court has rightly held so. This appeal, therefore, lacks

merits and the same is dismissed with no order as to costs.

………………………… .........J.

(K.S. Radhakrishnan)

………………………………… J.

(Dipak Misra)

New Delhi,

October 19, 2012

Page 23 23

Page 24 1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 7600 2012

(Arising out of SLP (C) No. 1673 of 2012)

Rajesh Awasthi ….. Appellant

Versus

Nand Lal Jaiswal and others .…Respondents

J U D G M E N T

Dipak Misra, J

I have my respectful concurrence with the conclusion and

the views expressed by my learned Brother Radhakrishnan, J.

However, regard being had to the importance of the matter, I

propose to record my views in addition.

2.As is evincible from the factual exposition, a writ of quo

warranto has been issued by the High Court of Allahabad,

Bench at Lucknow declaring that the appellant is not entitled

Page 25 2

to continue as the Chairperson of U.P. State Electricity

Regulatory Commission (for short ‘the State Commission’) on

the foundation that there had been total non-compliance of the

statutory provision enshrined under sub-section (5) of Section

85 of the Electricity Act, 2003 (for brevity ‘the Act’).

3.As the facts have been stated in detail by my learned

Brother, it is not necessary to repeat the same. Suffice it to

state that the pleas of locus standi and delay and laches have

not been accepted and a finding has been returned by the High

Court that the selection of the appellant was in flagrant

violation of the provisions of the Act and, therefore, his

continuance in law is impermissible.

4.Before I proceed to deal with the justifiability of the order

passed by the High Court, it is thought apposite to refer to

certain authorities that fundamentally deal with the concept of

writ of quo warranto. In B.R. Kapur v. State of Tamil Nadu

and another

1

, in the concurring opinion Brijesh Kumar,J.,

while dealing with the concept of writ of quo warranto, has

1 AIR 2001 SC 3435

Page 26 3

referred to a passage from Words and Phrases Permanent

Edition, Volume 35, at page 647, which is reproduced below: -

“The writ of “quo warranto” is not a substitute for

mandamus or injunction nor for an appeal or writ of

error, and is not to be used to prevent an improper

exercise of power lawfully possessed, and its purpose

is solely to prevent an officer or corporation or

persons purporting to act as such from usurping a

power which they do not have. State ex inf. Mc.

Kittrick v. Murphy, 148 SW 2d 527, 529, 530, 347

Mo. 484.

(emphasis supplied)

Information in nature of “quo warranto ” does

not command performance of official functions by

any officer to whom it may run, since it is not

directed to officer as such, but to person holding

office or exercising franchise, and not for purpose of

dictating or prescribing official duties, but only to

ascertain whether he is rightfully entitled to exercise

functions claimed. State Ex. Inf. Walsh v.

Thactcher, 102 SW 2d 937, 938, 340 Mo. 865.”

(Emphasis supplied)

5.In The University of Mysore v. C.D. Govinda Rao and

another

2

, while dealing with the nature of the writ of quo

warranto, Gajendragadkar,J. has stated thus: -

2 AIR 1965 SC 491

Page 27 4

“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

recognised in that behalf, they tend 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

entitled to the post allowed to occupy it. It is thus

clear that before a citizen can claim a writ of quo

warranto, he must satisfy the court, inter alia, that

the office in question is a public office and is held by

usurper without legal authority, and that necessarily

leads to the enquiry as to whether the appointment

of the said alleged usurper has been made in

accordance with law or not.”

6.From the aforesaid pronouncements it is graphically clear

that a citizen can claim a writ of quo warranto and he stands

in the position of a relater. He need not have any special

Page 28 5

interest or personal interest. The real test is to see whether

the person holding the office is authorised to hold the same as

per law. Delay and laches do not constitute any impediment to

deal with the lis on merits and it has been so stated in Dr.

Kashinath G. Jalmi and another v. The Speaker and

others

3

.

7.In High Court of Gujarat v. Gujarat Kishan Mazdoor

Panchayat

4

it has been laid down by this Court that a writ of

quo warranto can be issued when there is violation of statutory

provisions/rules. The said principle has been reiterated in

Retd. Armed Forces Medical Association and others v.

Union of India and others

5

.

8.In the case of Centre for PIL and another v. Union of

India and another

6

a three-Judge Bench, after referring to

the decision in R.K. Jain v. Union of India

7

, has opined thus:

-

3 AIR 1993 SC 1873

4 (2003) 4 SCC 712

5 (2006) 11 SCC 731 (I)

6 (2011) 4 SCC 1

7 (1993) 4 SCC 119

Page 29 6

“Even in R.K. Jain case, this Court observed vide

para 73 that judicial review is concerned with

whether the incumbent possessed qualifications 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 decisions when impugned

under the judicial review jurisdiction.”

It is also worth noting that in the said case a view has been

expressed that the judicial determination can be confined to

the integrity of the decision making process in terms of the

statutory provisions.

9.Regard being had to the aforesaid conception of quo

warranto I may proceed to scrutinize the statutory provisions.

Section 84 of the Act deals with qualifications for appointment

of Chairperson and Members of State Commission. Section 85

provides for constitution of Selection Committee to select

Members of the State Commission. Sub-sections (4) and (5) of

Section 85 which are relevant for the present purpose read as

Page 30 7

follows: -

“(4)The Selection Committee shall recommend a

panel of two names for every vacancy referred to it.

(5)Before recommending any person for

appointment as the Chairperson or other Member of

the State Commission, the Selection Committee shall

satisfy itself that such person does not have any

financial or other interest which is likely to affect

prejudicially his functions as such Chairperson or

Member, as the case may be.”

10.On a perusal of the report of the Selection Committee it is

manifest that the Committee has not recorded its satisfaction

with regard to ingredients contained in Section 85(5) of the Act

and left it to the total discretion of the State Government.

11.On a scanning of the anatomy of Section 85(5) it is limpid

that the Selection Committee before recommending any person

for appointment as a Chairperson or a Member of the State

Commission shall satisfy itself that the person does not have

any financial or other interest which is likely to affect

prejudicially his functions as such Chairperson or Member, as

the case may be. As the proceedings of the Selection

Page 31 8

Committee would reveal, it had not recorded its satisfaction

prior to recommending the names of the two candidates. It is

vivid that the Selection Committee abandoned its function and

simply sent the file to the State Government. It has been

argued with vehemence by Mr. Nageswara Rao, learned senior

counsel for the appellant that when two names were chosen

from amongst certain persons it has to be inferred that there

was recommendation after due satisfaction as per statutory

requirement.

12.On a plain reading of the provision it is clear as crystal

that the Selection Committee is obliged in law to satisfy itself

with regard to various aspects as has been stipulated under

sub-section (5) of Section 85 of the Act. It is perceptible that

the said exercise has not been undertaken. It is worthy to note

that the Act has a purpose. It has been enacted to consolidate

the laws relating to generation, transmission, distribution,

trading and use of electricity and generally for taking measures

conducive to development of electricity industry, promoting

competition therein, protecting interest of consumers and

Page 32 9

supply of electricity to all areas, rationalization of electricity

tariff, ensuring transparent policies regarding subsidies,

promotion of efficient and environmentally benign policies,

constitution of Central Electricity Authority, Regulatory

Commissions and establishment of Appellate Tribunal and for

matters connected therewith or incidental thereto. Ergo, the

provisions engrafted in the Act have their sacrosanctity.

13.Presently, it is requisite to survey some of the statutory

provisions. Section 82 of the Act provides for constitution of

the State Commission. Section 2(64) defines the State

Commission. It is as follows: -

“(64)“State Commission” means the State Electricity

Regulatory Commission constituted under sub-

section (1) of section 82 and includes a Joint

Commission constituted under sub-section (1) of

section 83;”

Section 86 deals with the functions of the State Commission.

Keeping in view the functions attributed to the State

Commission by the legislature I think it condign to reproduce

the said provision in entirety: -

Page 33 10

“86.Functions of State Commission. – (1) The

State Commission shall discharge the following

functions, namely: -

(a)determine the tariff for generation, supply,

transmission and wheeling of electricity,

wholesale, bulk or retail, as the case may be,

within the State:

Provided that where open access has been

permitted to a category of consumers under

section 42, the State Commission shall

determine only the wheeling charges and

surcharge thereon, if any, for the said category

of consumers;

(b)regulate electricity purchase and procurement

process of distribution licensees including the

price at which electricity shall be procured from

the generating companies or licensees or from

other sources through agreements for purchase

of power for distribution and supply within the

State;

(c)facilitate intra-State transmission and wheeling

of electricity;

(d)issue licences to persons seeking to act as

transmission licensees, distribution licensees

and electricity traders with respect to their

operations within the State;

(e)promote cogeneration and generation of

electricity from renewable sources of energy by

providing suitable measures for connectivity

with the grid and sale of electricity to any

person, and also specify for purchase of

electricity from such sources, a percentage of

the total consumption of electricity in the area

Page 34 11

of a distribution licensee;

(f)adjudicate upon the disputes between the

licensees and generating companies and to

refer any dispute for arbitration;

(g)levy fee for the purposes of this Act;

(h)specify State Grid Code consistent with the

Grid Code specified under clause (h) of sub-

section (1) of section 79;

(i)specify or enforce standards with respect to

quality, continuity and reliability of service by

licensees;

(j)fix the trading margin in the intra-State trading

of electricity, if considered, necessary;

(k)discharge such other functions as may be

assigned to it under this Act.

(2)The State Commission shall advise the State

Government on all or any of the following matters,

namely: -

(i)promotion of competition, efficiency and

economy in activities of the electricity industry;

(ii)promotion of investment in electricity industry;

(iii)reorganization and restructuring of electricity

industry in the State;

(iv)matters concerning generation, transmission,

distribution and trading of electricity or any

other matter referred to the State Commission

by that Government;

(3)The State Commission shall ensure

Page 35 12

transparency while exercising its powers and

discharging its functions.

(4)In discharge of its functions, the State

Commission shall be guided by the National

Electricity Policy, National Electricity Plan and Tariff

Policy published under section 3.”

14.On an x-ray of the Preamble of the Act and the important

functions ascribed to the State Commission I have no scintilla

of doubt that the selection of Chairperson or a member is

extremely important, more so, when there is a statutory

prescription about the manner in which the Selection

Committee is required to act. I may state here that though the

language is plain, unambiguous, clear and leads to a singular

construction, yet I think it apt to reproduce a passage from

Utkal Contractors Joinery Pvt. Ltd. and others etc. v.

State of Orissa and others

8

wherein Chinnappa Reddy, J.

has observed thus: -

“A statute is best understood if we know the reason

for it. The reason for a statute is the safest guide to

its interpretation. The words of a statute take their

colour from the reason for it. How do we discover

the reason for a statute? There are external and

8 AIR 1987 SC 1454

Page 36 13

internal aids. The external aids are Statement of

Objects and Reasons when the Bill is presented to

Parliament, the reports of Committees which

preceded the Bill and the reports of Parliamentary

Committees. Occasional excursions into the debates

of Parliament are permitted. Internal aids are the

preamble, the scheme and the provisions of the Act.

Having discovered the reason for the statute and so

having set the sail to the wind, the interpreter may

proceed ahead. No provision in the statute and no

word of the statute may be construed in isolation.

Every provision and every word must be looked at

generally before any provision or word is attempted

to be construed. The setting and the pattern are

important.”

(emphasis supplied)

15.In Atma Ram Mittal v. Ishwar Singh Punia

9

,

Sabyasachi Mukherji, J. (as his Lordship then was)

emphasizing on the intention of the legislature, stated thus: -

“Blackstone tells us that the fairest and most

rational method to interpret the will of the legislator

is by exploring his intentions at the time when the

law was made, by signs most natural and probable.

And these signs are either the words, the context,

the subject matter, the effects and consequence, or

the spirit and reason of the law.”

16.In the said case reference was made to the decision in

9 (1988) 4 SCC 284

Page 37 14

Popatlal Shah v. State of Madras

10

wherein it has been laid

down that each word, phrase or sentence is to be construed in

the light of purpose of the Act itself. A reference was made to

the observations of Lord Reid in Black-Clawson

International Ltd. v. Papierwerke Waldhof-Aschaffenburg

A G

11

wherein the Law Lord has observed as under: -

“We often say that we are looking for the intention of

the Parliament, but this is not quite accurate. We

are seeking the meaning of the words which

Parliament used. We are seeking not what

Parliament meant but the true meaning of what they

said.”

17.In Sangeeta Singh v. Union of India and others

12

emphasis was laid on the language employed in the statute

and in that context it has been opined as follows: -

“5.It is well-settled principle in law that the court

cannot read anything into a statutory provision or a

stipulated condition which is plain and

unambiguous. A statute is an edict of the

legislature. The language employed in a statute is

the determinative factor of legislative intent. Similar

is the position for conditions stipulated in

advertisements.”

10 1953 SCR 677 : AIR 1953 SC 274

11 1975 AC 591

12 (2005) 7 SCC 484

Page 38 15

18.I have referred to the aforesaid pronouncements only to

highlight that Section 85(5) of the Act has inherent inviolability

and every word used therein has to be understood in the

context regard being had to the legislative intendment. There

has to be concentrated focus on the purpose of legislation and

the text of the language, for any deviation is likely to bring in

hazardous results.

19.At this juncture I may profitably refer to Uttar Pradesh

Power Corporation Limited v. National Thermal Power

Corporation Limited and others

13

wherein, after referring to

the decision in W.B. Electricity Regulatory Commission v.

CESC Ltd.

14

, this Court has stated thus: -

“12.Looking to the observations made by this Court

to the effect that the Central Commission constituted

under Section 3 of the Act is an expert body which

has been entrusted with the task of determination of

tariff and as determination of tariff involves highly

technical procedure requiring not only working

knowledge of law but also of engineering, finance,

commerce, economics and management, this Court

13 (2011) 12 SCC 400

14 (2002) 8 SCC 715

Page 39 16

was firmly of the view that the issues with regard to

determination of tariff should be left to the said

expert body and ordinarily the High Court and even

this Court should not interfere with the

determination of tariff.”

20.Be it noted, emphasis has also been laid on functioning of

regulatory bodies in ITC Limited v. State of Uttar Pradesh

and others

15

.

21.I have referred to the aforesaid authorities singularly for

the purpose that regulatory commission is an expert body and

in such a situation the selection has to be absolutely in accord

with the mandatory procedure as enshrined under Section 85

of the Act.

22.In the present context, it has become necessitous to dwell

upon the role of the Selection Committee. Section 85(1) of the

Act provides for constitution of Selection Committee to select

Members of the State Commission. The said Committee, as

the composition would show, is a high powered committee,

which has been authorised to adjudge all aspects. I may

hasten to add that I am not at all delving into the sphere of

15 (2011) 7 SCC 493

Page 40 17

suitability of a candidate or the eligibility, for in the case at

hand the issue in singularity pertains to total non-compliance

of the statutory command as envisaged under Section 85(5).

23.It is seemly to state the aforementioned provision

employs the term “recommendation”. While dealing with the

concept of recommendation, a three-Judge Bench of this Court

in A. Pandurangam Rao v. State of Andhra Pradesh and

others

16

has stated that the literal meaning of the word

“recommend” is quite simple and it means “suggest as fit for

employment”. In the present case the Selection Committee as

per the provision was obliged to satisfy itself when the

legislature has used the word “satisfied”. It has mandated the

Committee to perform an affirmative act. There has to be

recording of reasons indicating satisfaction, may be a

reasonable one. Absence of recording of satisfaction is

contrary to the mandate/command of the law and that makes

the decision sensitively susceptible. It has to be borne in mind

that in view of the power conferred on the State Commission,

16 AIR 1975 SC 1922

Page 41 18

responsibility of selection has been conferred on a high

powered Selection Committee. The Selection Committee is

legally obliged to record that it has been satisfied that the

candidate does not have any financial or other interest which

is likely to affect prejudicially his functions as Chairman or

Member, as the case may be. The said satisfaction has to be

reached before recommending any person for appointment. It

would not be an exaggeration to state that the abdication of

said power tantamounts to breach of Rule of Law because it

not only gives a go by to the warrant of law but also creates a

dent in the basic index of law. Therefore, the selection is

vitiated and it can never come within the realm of curability,

for there has been statutory non-compliance from the very

inception of selection.

24.It is necessary to state here that in many an enactment

the legislature has created regulatory bodies. No one can be

oblivious of the fact that in a global economy the trust on the

regulators has been accentuated. Credibility of governance to

a great extent depends on the functioning of such regulatory

Page 42 19

bodies and, therefore, their selection has to be in total

consonance with the statutory provisions. The same inspires

public confidence and helps in systematic growth of economy.

Trust in such institutions helps in progress and distrust

corrodes it like an incurable malignancy. Progress is achieved

when there is good governance and good governance depends

on how law is implemented. Keeping in view the objects and

reasons and preamble of the Act and the functions of the

Commission, it can be stated with certitude that no latitude

can be given and laxity can have no allowance when there is

total violation of the statutory provision pertaining to selection.

It has been said long back “a society is well governed when the

people who are in the helm of affairs obey the command of the

law”. But, in the case at hand the Selection Committee has

failed to obey the mandate of the law as a consequence of

which the appellant has been selected and, therefore, in the

ultimate eventuate the selection becomes unsustainable.

25.It is manifest in the selection of the appellant that there is

absence of “intellectual objectivity” in the decision making

Page 43 20

process. It is to be kept in mind a constructive intellect brings

in good rationale and reflects conscious exercise of conferred

power. A selection process of this nature has to reflect a

combined effect of intellect and industry. It is because when

there is a combination of the two, the recommendations as

used in the provision not only serves the purpose of a “lamp in

the study” but also as a “light house” which is shining, clear

and transparent.

26.I emphasize on the decision making process because in

such a case there is exercise of power of judicial review. In

Chief Constable of the North Wales Police v. Evans

17

, Lord

Brightman observed thus: -

“....Judicial review, as the words imply, is not an

appeal from a decision, but a review of the manner

in which the decision was made....”

27.In view of the aforesaid analysis, I conclude that there

has been total non-compliance of the statutory provision by the

Selection Committee which makes the decision making process

vulnerable warranting interference by the constitutional courts

17 (1982) 1 W.L.R. 1155

Page 44 21

and, therefore, the High Court is justified in holding that the

appointment is non est in law.

28.Consequently, the appeal, being sans substratum, stands

dismissed without any order as to costs.

……………………………… .J.

[Dipak Misra]

New Delhi;

October 19, 2012.