# 1 O S.C.R. 883 RAJESH AWASTHI v. NANO LAL JAISWAL & ORS

- **Citation:** [2012] 10 S.C.R. 883
- **Court:** Supreme Court of India
- **Decided:** 2012-10-19
- **Case number:** Civil Appeal No. 7600 of 2012
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-o-s-c-r-883-rajesh-awasthi-v-nano-lal-jaiswal-ors-27953
- **Pages:** 36

## Headnote

Electncity Act, 2003:
A
B
s. 85(5) - Selection of Chairperson of State Electricity c
Regulatory
Commission
Selection
Committee
recommending to State Government two names asking the
Government to ensure compliance of sub-s. (5) of s. 85 -
Held: Power conferred under sub-s. (5) of s. 85 of the Act has
to be exercised by Selection Committee and not by the
0
Government - 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 their functions as
Chairperson, is a matter which depends upon the satisfaction
of Selection Committee and that satisfaction has to be arrived
at before recommending any person for appointment as
E
Chairperson to State Government - Selection Committee has
given a complete go-by to that provision and entrusted that
function to the State Government which is legally
impermissible - State Government a/so, without application
F
of mind and overlooking that statutory provision, appointed
the appellant - Jn the instant case, there has been total noncompliance of the statutory provision by the Selection
Committee which makes the decision making process
vulnerable warranting interference by constitutional courts
and, therefore, High Court is justified in holding that the
G
appointment is non est in law - Constitution of India, 1950 -
Art. 226.
Constitution of India, 1950:
883
H
--.,'
884
SUPREME COURT REPORTS . [2012] 10 S.C.R.
A
Art. 226 - Writ of quo warra~to - Held: A citizen can claim
a writ of quo warranto and he stands in the position of a relater
- A writ of quo warranto will lie when the appointment is made
contrary to the statutory provisions - In the instant case, the
question as to whether, being Vice-President of the private
B company, 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 - The statutory requirements as prescribed in
sub-r. (3) of r. 3of1999 Rules were also not followed over and
c above, the non-compliance of sub-s. (5) of s. 85 of the Act -
The expression "before recommending any person" in sub s.
(5) of s. 85 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
0
Chairperson - The expression "before" clearly indicates the
intention of the Legislature - Non-comp/ian.ce of sub-s. (5) of
s. 85 ot the Act is not a procedural violation, and vitiates the
entire selection process - High Court has rightly held that the
appointment of appellant was in clear violation of sub-s. (5)
of s.85 of the Act and, consequently, he has no authority to
E hold the post of Chairperson of the Commission - Electricity
Act, 2003 :- s.85(5) - U.P. Electricity Regulatory Commission
(Appointment and Conditions of Service of the Chairperson
and Members) Rules, 1999 - r.3(3) - Locus Standi.
F
Consequent upon the post of Chairperson, U.P.
State Electricity Regulatory Commission falling vacant,
applications were invited from eligible candidates and out
of 30 applicants, the Selection Committee constituted u/
s 85 of the Electricity Act, 2003, selected two persons on
G merit, including the appellant and forwarded their names
to the State Government with an asterisk against the
name of the appellant that if he was appointed, the
Government would first ensure the compliance of sub-s.
(5) of s.85 of the Act. The Government appointed the
H appellant as Chairperson of the Commission on
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 885
29.12.2008, on which date the appellant sent a letter to the
A
State Government stating that he had resigned from his
previous assignment in the private sector on 27.12.2008.
The respondent, who was the General Secretary, Jal
Vidyut Unit, filed a writ petition before the High Court
seeking a writ of quo warranto challenging the
B
appointment of the appellant, inter alia, on the g

## Text

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[2012] 1 O S.C.R. 883
RAJESH AWASTHI
v.
NANO LAL JAISWAL & ORS.
(Civil Appeal No. 7600 of 2012)
OCTOBER 19, 2012
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Electncity Act, 2003:
A
B
s. 85(5) - Selection of Chairperson of State Electricity c
Regulatory
Commission
Selection
Committee
recommending to State Government two names asking the
Government to ensure compliance of sub-s. (5) of s. 85 -
Held: Power conferred under sub-s. (5) of s. 85 of the Act has
to be exercised by Selection Committee and not by the
0
Government - 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 their functions as
Chairperson, is a matter which depends upon the satisfaction
of Selection Committee and that satisfaction has to be arrived
at before recommending any person for appointment as
E
Chairperson to State Government - Selection Committee has
given a complete go-by to that provision and entrusted that
function to the State Government which is legally
impermissible - State Government a/so, without application
F
of mind and overlooking that statutory provision, appointed
the appellant - Jn the instant case, there has been total noncompliance of the statutory provision by the Selection
Committee which makes the decision making process
vulnerable warranting interference by constitutional courts
and, therefore, High Court is justified in holding that the
G
appointment is non est in law - Constitution of India, 1950 -
Art. 226.
Constitution of India, 1950:
883
H
--.,'
884
SUPREME COURT REPORTS . [2012] 10 S.C.R.
A
Art. 226 - Writ of quo warra~to - Held: A citizen can claim
a writ of quo warranto and he stands in the position of a relater
- A writ of quo warranto will lie when the appointment is made
contrary to the statutory provisions - In the instant case, the
question as to whether, being Vice-President of the private
B company, 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 - The statutory requirements as prescribed in
sub-r. (3) of r. 3of1999 Rules were also not followed over and
c above, the non-compliance of sub-s. (5) of s. 85 of the Act -
The expression "before recommending any person" in sub s.
(5) of s. 85 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
0
Chairperson - The expression "before" clearly indicates the
intention of the Legislature - Non-comp/ian.ce of sub-s. (5) of
s. 85 ot the Act is not a procedural violation, and vitiates the
entire selection process - High Court has rightly held that the
appointment of appellant was in clear violation of sub-s. (5)
of s.85 of the Act and, consequently, he has no authority to
E hold the post of Chairperson of the Commission - Electricity
Act, 2003 :- s.85(5) - U.P. Electricity Regulatory Commission
(Appointment and Conditions of Service of the Chairperson
and Members) Rules, 1999 - r.3(3) - Locus Standi.
F
Consequent upon the post of Chairperson, U.P.
State Electricity Regulatory Commission falling vacant,
applications were invited from eligible candidates and out
of 30 applicants, the Selection Committee constituted u/
s 85 of the Electricity Act, 2003, selected two persons on
G merit, including the appellant and forwarded their names
to the State Government with an asterisk against the
name of the appellant that if he was appointed, the
Government would first ensure the compliance of sub-s.
(5) of s.85 of the Act. The Government appointed the
H appellant as Chairperson of the Commission on
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 885
29.12.2008, on which date the appellant sent a letter to the
A
State Government stating that he had resigned from his
previous assignment in the private sector on 27.12.2008.
The respondent, who was the General Secretary, Jal
Vidyut Unit, filed a writ petition before the High Court
seeking a writ of quo warranto challenging the
B
appointment of the appellant, inter alia, on the ground that
the Selection Committee did not follow the provisions of
sub-s. (5) of s.85 of the Act and the appellant could not
have been selected as he was working with a private
sector company and had financial and other interests in c
that company. The High Court allowed the writ petition,
issued a writ of quo warranto and quashed the
appointment of the appellant declaring the same as illegal
and void.
Dismissing the appeal, the Court
D
HELD:
(Per Radhakrishnan, J)
1.1 The Electricity Act, 2003 is an Act enacted to
E
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
F
to all areas, rationalization of electricity tariff etc. [para 10]
[898-E-F]
1.2 In view of s. 84 of the Electricity Act, 2003, the
Chairperson shall be a person of ability, integrity and
G
standing, who 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 s.85, has
to recommend a panel of two names for filling up the post
H
886
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A of the Chairperson, but before recommending any person
for the purpose it has to satisfy itself that such person
does not have any financial or other interest which is
likely to affect prejudicially his functions as Chairperson.
B
[para 11] [899-D-F]
Crowford vs. Spooner (1846) 6 Moore PC 1; Attorney
General v. Milne (1914-15) All England Report 1061; Nokes
v. Dancaster Amalgamated Collieries Ltd. (1940) 3 All
England Report 549 - referred to.
C
1.3 The language used in sub-s. (5) of s.85 of the Act,
calls for no interpretation. Words are crystal clear,
unambiguous and when read literally, there is no doubt
that the power conferred under sub-s. (5) of s.85 of the
Act has to be exercised by the Selection Committee and
D the Committee alone and not by the Government. Some
of the words used in sub-s. (5) of s.85 are of considerable
importance, such as "before recommending", "the
Selection Committee shall satisfy" and "itself". The
Legislature has emphasized the fact that 'the Selection
E Committee itself has to satisfy', meaning thereby, it is not
the satisfaction of the government what is envisaged in
sub-s. (5) of s.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
F financial or other interest which is likely to affect
prejudicially their. 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
G 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-s. (5) of s.85 of the Act. In the instant
case, the Selection Committee has given a complete goH by to that provision and entrusted that function to the
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS.
887
State Government which is legally impermissible. The
A
State Government also, without application of mind and
overlooking that statutory provision, appointed the
appellant. [para 15] [902-F-H; 903-A-D]
2.1 It is true that suitability of a candidate for 8
appointment does not fall within the realm of writ of quo
warranto. However, a writ of quo warranto will lie when
the appointment is made contrary to the statutory
provisions. In the instant case, the question which the
Selection Committee ought to have considered, was as
to whether, being Vice-President of the private company,
C
the appellant had any financial or other interest which
would prejudicially affect his function as chairperson.
When the Selection Committee was constituted, the 1999
Rules were in force and the 2008 Rules came into force
only on 1.1.2009. By virtue of s.85 of the Act, the then
D
existing Rules 1999 were also safeguarded. Rule 3 of the
1999 Rules deals with the selection process for the post
of Chairperson, which is almost pari-materia to the 2008
Rules. The ~tatutory requirements as prescribed in subr. (3) of r. 3 of 1999 Rules were also not followed in the
E
instant case, over and above, the non-compliance of subs. (5) of s.85 of the Act. [para 16, 18-20] [903-E-F; 904-CE-G; 905-A]
Mor Modern Coop. Transport Coop. Transport Society
F
Ltd. v. Govt. of Haryana 2002 ( 1 ) Suppl. SCR 87 = (2002)
6 SCC 269; B. Srinivasa Reddy v. Karnataka Urban Water
Supply & Drainage Board Employees Associaition 2006 (5)
Suppl. SCR 462 = (2006) 11 SCC 731; and Hari Bansh
Lal v. Sahodar Prasad Maht and others 2010 (10) SCR 561
G
= (201 O) 9 sec 655 - relied on
R. v. Speyer (1916) 1 K.B. 595 - referred to
2.2 The expression "before recommending any
person" in sub s. (5) of s. 85 clearly indicates that it is a
H
888
SUPREME COURT REPORTS
[2012] 10 S.C.R.
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. Noncompliance of sub-s. (5) of s. 85 of the Act is not a
B procedural violation, as it affects the very substratum of
the appointment. 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
c waived. [para 21] [905-0-G]
State Bank of Travancore v. Mohammadv 1982 (1)
SCR 338 = (1981) 4 SCC 82 - relied on
2.3 This Court is of the view that the appointment of
D the first respondent is in clear violation of sub-s. (5) of
s.85 of the Act. Consequently, he has no authority to hold
the post of Chairperson of the U.P. State Electricity
Regulatory Commission; and the High Court has rightly
held so. [para 22] [906-C]
E
F
University of Mysore & Anr. v. G.D. Govinda Rao & Anr.
(1964) 4 SCR 575, Mahesh Chandra Gupta vs. Union of India
2009 (1 o ) SCR 921 = (2009) 8 sec 273 - cited.
Per Dipak Misra, J (Concurring):
1. A citizen can claim a writ of quo warranto and he
stands in the position of a relater. He need not have any
special interest or personal interest. The real test is to see
whether the person holding the office is authorised to
G hold the same as per law. A writ of quo warranto can be
issued when there is violation of statutory provisions/
rules. Delay and !aches do not constitute any impediment
to deal with the lis on merits. [para 6] [908-F-G; 909-A]
H
The University of Mysore v. C. D. Govinda Rao and
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS.
889
another 1964 SCR 575 = 1965 AIR 491; High Court of Gujarat A
v. Gujarat Kishan Mazdoor Panchayat 2003 (2) SCR 799 =
2003 (4) SCC 712; B.R. Kapur v. State of Tamil Nadu and
another 2001 (3) Suppl. SCR 191 = 2001 AIR 3435; Dr.
Kashinath G. Ja/mi and another v. The Speaker and
others 1993 (2) SCR 820 =1993 AIR 1873; Retd. Armed B
Forces Medical Association and others v. Union of India and
others (2006) 11 SCC 731 (I); Centre for PIL and another v.
Union of India and another 2011 (4) SCR 445 = 2011 (4)
SCC 1; R. K.. Jain v. Union of India 1993 (3) SCR 802 =
1993 (4) sec 119 - referred to.
c
2.1. State Electricity 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 u/s 85 of the Act. Section 85(5) of the Act has
inherent inviolability and every word used therein has to
D
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 :my deviation is likely to bring in hazardous
results. [para 18 and 21] [915-C-D; 916-C]
E
Utkal Contractors Joinery Pvt. Ltd. and others etc. v. State
of Orissa and others 1987 AIR 1454 = 1987 (3) SCR 317;
Atma Ram Mittal v. /shwar Singh Punia 1988 (2) Suppl.
SCR 528 = 1988 (4) SCC 284; Popat/al Shah v. State of. F
Madras 1953 SCR 677 : AIR 1953 SC 274; Sangeeta Singh
v. Union of India and others 2005 (2) Suppl. SCR 823 = 2005
(7) SCC 484; Uttar Pradesh Power Corporation Limited v.
National Thermal Power Corporation Limited and others
(2011) 12 SCC 400; WB. Electricity Regulatory Commission G
v. CESC Ltd. 2002 (8) SCC 715; and ITC Limited v. State
of Uttar Pradesh and others 2011 (7) SCR 66 = 2011 (7)
sec 493 - referred to.
Black-Clawson International Ltd. v. Papierwerke WaldhofAschaffenburg A G 1975 AC 591- referred to.
H
890
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
2.2 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
B would show, is a high powered committee, which has
been authorised to adjudge all aspects. In the case at
hand the issue in singularity pertains to total noncompliance of the statutory command as envisaged u/s
85(5). Section 85(5) employs the term "recommendation",
c (which means "suggest as fit for employment). [para 22
and 23) (916-0-E, G]
A. Pandurangam Rao v. State of Andhra Pradesh and
others 1976 (1 SCR 620 =1975 AIR 1922 - relied on
D
2.3 In the instant case, 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 s. 85(5) of the Act and left it to
the total discretion of the State Government. The
E 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
F before recommending any person for appointment. 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
G within the realm of curability, for there has been statutory
non-compliance from the very inception of selection. 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. There has been total
H
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 891
non-compliance of the statutory· provision by the A
Selection Committee which makes the decision making
process vulnerable warranting interference by the
constitutional courts and, therefore, the High Court is
justified in holding that the appointment is non est in law.
[para 10, 23, 24 and 27] [910-B-C; 917-B-D; 918-A, F]
B
Chief Constable of the North Wales Police v. Evans
(1982) 1 W.L.R. 1155 - referred to.
Case Law Reference:
(As per Radhakrishnan, J)
(1964) 4 SCR 575
2009 (10) SCR 921
2010 (10) SCR 561
cited
cited
relied on
2006 (5) Suppl. SCR 462
relied on
(1846) 6 Moore PC
(1914-15) All England
Report 1061
(1940) 3 All England
Report 549
2002 (1) Suppl. SCR 87
(1916) 1 K.B. 595
1982 (1) SCR 338
(As per Dipak Misra, J.)
referred to
referred to
referred to
relied on
referred to
relied on
2001 (3) Suppl. SCR 191
referred to
1964 SCR 575
referred to
1993 (2) SCR 820
referred to
para 6
para 6
para 6
para 6
para 14
c
D
para 14
E
para 14
para 16
F
para 20
para 21
para 4
para 5
para 6
G
H
892
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
2003 (2) SCR 799
referred to
para 7
(2006) 11 sec 731 (I)
referred to
para 7
2011 (4) SCR445
referred to
para 8
B
1993 (3) SCR 802
referred to
para 8
1987 (3) SCR 317
referred to
para 14
1988 (2) Suppl. SCR 528
referred to
para 15
1953 SCR 677
referred to
para 16
c
1975 AC 591
referred to
para 16
2005 (2) Suppl. SCR 823
referred to
para 17
(2011) 12 sec 400
referred to
para 19
D
2002 (8) sec 715
referred to
para 19
2011 (7) SCR 66
referred to
para 20
1976 (1) SCR 620
relied on
para 23
E
(1982) 1 W.L.R. 1155
referred to
para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7600 of 2012.
From the Judgment and Order dated 10.01.2012 of the
F
High Court of Judicature at Allahabad, Bench at Lucknow in Writ
Peition No. 1428 (M/B) of 2011.
L. Nageswara Rao, Ravindra Shrivastava, Gaurav Bhatia,
AAG, Shail Kr. Dwivedi, Gunna Venkateswara Rao, Sanjay
G Kumar Visen, Sathosh Krishnan, Prashant Bhushan. Devvrat,
C.D. Singh, Ayesha Chaudhry, Prashant Chaudhary, Anoop
Jain and Anshuman Srivastava for the Appearing Parties.
The Judgments of the Court was delivered by
H
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 893
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
A
as Chairperson of U.P. State Electricity Regulatory
B
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
C
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 0
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,
E
CBDT, PSUs power sectors etc. Thirty persons applied for the
post including the appellant. The meeting of the Selection
Committee was held on 26.12.2008 and Selection Committee
selected two persons on merit, namely, the appellant and one
Mr. Amit Kumar Asthana. Panel of two names was forwarded
F
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
G
of the Commission on 29.12.2008. The appellant on that date
sent a letter to the State Government stating that he had
rezigned from his previous assignments on 27.12.2008 and
severed all his links with the private sector as required under
H
894
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
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
B
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 subsection (5) of Section 85 of the Act, it was also alleged that
the appellant could not have been selected since he was
c working as the Joint President of the 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
D
Regulatory Commission (Appointment and Gonditions 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
E
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
F
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
G resigned from that post 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
H Act, hence the appointment was vitiated and the appellant had
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 895
[K.S. RADHAKRISHNAN, J.]
no authority to hold the post of Chairperson. Further, it was also A
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
B
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.
C
6. Shri L. Nageswara Rao, learned senior counsel
appearing for the appellant submitted that the High Court has
committed an error in holding that the appointment of the
appellant was in violation of sub-section (5) of Section 85 of D
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
E
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
again.st his name and reminded the State Government that if
he was to be appointed, the provisions of sub-section (5) of F
Section 85 of the Act be first ensured. Learned senior counsel,
therefore, submitted that there was substantial compliance of
that provision anC:t 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 G
Court in University of Mysore & Anr. v. G.D. Govinda Rao &
Anr. (1964) 4 SCR 575, learned senior counsel submitted that
the suitability arrived at by the Committee is not a matter
amenable to proceedings under quo warranto. Learned senior
H
896
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
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.
s
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
c 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 8.
Srinivasa Reddy v. Karnataka Urban Water Supply &
D
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 the writ of quo warranto after having found that the
E
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
F
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)
G 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
H would prejudicially affect his functions as Chairperson. Mr.
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 897
[K.S. RADHAKRISHNAN, J.]
Ravindra Shrivastava, learned senior counsel appearing for the
A
state of U.P. submitted that the appointment of the appellant
was in violation of sub-section(5) of Section 85 of the Act and
the 1999 Rules and the State is taking steps to conduct fresh
selection after complying with the provisions of the Act and
2008 Rules, which is in force.
B
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 c
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
0
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;
E
F
(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 Chairperson who is
or has been a Judge of the High Court.
G
(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
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898
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
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
B
date on which the reference is made to it.
c
D
(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."
E
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
F and supply of electricity to all areas, rationalization of electricity
tariff etc. The Act also 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
G 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
H deals with the qualifications for appointment of Chairperson and
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS.
899
[K.S. RADHAKRISHNAN, J.]
Members of the State Commission which reads as follows:
A
"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
8
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."
c
D
11. The Chairperson, therefore, shall be a person of ability,
integrity and standing and has adequate knowledge of, and has
shown capacity in, dealing with problems relating to
engineering, finance, commerce, economics, law or
management. The Selection Committee, as per Section 85, has
E
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
F
Chairperson. The State Government under Section 82(5) of the
Act has to appoint the Chairperson on the recommendation of
the S~lection Committee.
12. We have gone through the minutes of the Selection G
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:
H
S. No.
Date of
and
Birth
name
1. S.K.
01-01Shukla
1950
3.Anil
29-07Kumar
1952
Asthana
18. U.C. 31-07Misra
1949
20.
19-01Bio-data of applicants for the post of Chairperson U.P.E.R.C.
Educational Qualification
Retd. Post Holdings
Experience
Academic
Professional specialization From
BE (Mech.
ME (Prod.
Director
33 years in
Engg.
Engg.)
(Technical) Tehri T.H.D.C.
Hydro Devpt.
Corporation
B. Tech.
M.Tech
Chief Engr.
33 Years in
(Electrical)
(Power App.
System
CEA
& Systems)
planning
Transmission
& Project
appraisal CEA
opration
B.E.
Chairman
4.5 Years
Electri-cal
Bhakra Beas
UPSEB, 15
Engg.)
Management
Years NHPC,
Board
16 Years
PGCIL, 2 Years
Chairman BBMB
Civil &
Joint President
3 Years
co
0
0
(/)
c
-0
;o
m
s:
m
()
0 c
~
;o
m
-0
0
~
.......
0
(/)
()
;o
Rajesh 1950
Municipal
Awasthi
Engg.
Graduate
21. S.M. 15-06BSc.(Elec. M.Sc. (Elec
Agarwal 1949
Engg.)
Engg.)
24. Dr.
01-08B.E.
M.E.
Man
1946
(Elect.)
(Power
Mohan
System)
J.P. Power
Ventures
D.G. (Trg.
&HRD)UPPCL
Ph.D.
Member
(Commercial
(Technical)
Availability
Gujarat ERC
Index of
Power Plant)
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
36 Years UPSEB I
UPPCL
29.5 Years
in CEA, 3 Years
NTPC, 2 Years as
Engr, Grade-I, Govt.
of Libya, 4 Years in
Gujrat ERC.
<.O
0 ......
902.
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
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
B
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
C
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
D
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, reading the statute as a whole, the context
directs us to do so". Viscount Simon, L.C. in Nokes v.
E
F
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
G
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
H
recommending", "the Selection Committee shall satisfy" and
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS.
903
[K.S. RADHAKRISHNAN, J.]
"itself". The Legislature has emphasized the fact that 'the
A
Selection Committee itself has to satisfy', meaning thereby, it
is not the satisfaction of the government what is envisaged in
sub-section (5) of Section 85 of the Act, but the satisfaction of
the Selection Committee. The question as to whether the
persons who have been named in the panel have got any
B
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 c
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
0
which is legally impermissible. The State Government also,
without application of mind and overlooking that statutory
provision, appointed the appellant.
16. A \'!rit of quo warranto will lie when the appointment is
made contrary to the statutory provisions. This Court in Mor
E
Modem Coop. Transpott Coop. Transporl Society Ltd. v. Govt.
of Haryana (2002) 6 sec 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
F
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
G
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
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904
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
Section 85 of the Act. Consequently, he has no authority to hold
the post of Chairperson of the U.P. State Electricity Regulatory
Cbmmission.
18. We express no opinion with regard to the contentions
raised by the first respondent that the appellant had links with
B J.P. Powef:Ventures Ltd. According to the first respondent, the
appellant.llad 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
C 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
D 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:
E
F
G
"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 noncompliance of sub-section (5) of Section 85 of the Act.
H
20. We fully agree with the learned senior counsel for the
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 905
[K.S. RADHAKRISHNAN, J.]
appellant that suitability of a candidate for appointment does A
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
B
be cured by giving a direction to the Selection Committee to
comply with the requirement of sub-section (5) of Section 85
of the Act. Learned senior counsel submitted that since it is a
curable irregularity, a writ of quo warranto be not issued since
issuing of writ of quo warranto is within the discretion of the c
Court. Learned senior counsel made reference to the judgment
of Court in R. v. Speyer (1916) 1 K.8. 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 D
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 subsection (5) of Section 85 of the Act will vitiate the entire
selection process since it is intended to be followed before
E
making the recommendation to the State Government. Noncompliance 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.