# 14 S.C.R. 621 CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA v. DHOBEI SAHOO & ORS

- **Citation:** [2013] 14 S.C.R. 621
- **Court:** Supreme Court of India
- **Decided:** 2013-11-01
- **Case number:** Civil Appeal No. 9872 of 2013
- **Bench:** Anil R. Dave, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-s-c-r-621-central-electricity-supply-utility-of-odisha-v-dhobei-sahoo-ors-29180
- **Pages:** 42

## Headnote

Writs - Writ of quo waffanto - Scope and ambit of - Duty
of the Court while dealing with a writ of quo waffanto - Held:
A
B
Jurisdiction of the High Court while issuing a writ of quo C
warranto is limited and can only be issued when the person
holding the public office lacks the eligibility criteria or when
the appointment is contrary to the statutory rules - While
dealing with the writ of quo warranto another aspect has to be
kept in view - In filing a writ of quo waffanto, the principle of D
doctrine of delay and /aches should not be allowed any play
because the person holds the public office as a usurper and
such continuance is to be prevented by the Court - The Court
is required to see that the larger public interest and the basic
concept pertaining to good governance are not thrown to the
E
winds - Constitution of India, 1950 - Art.226.
Service Law - Appointment - Quashing of - Appel/antCE SU, a deemed licensee under the Electricity Act for
distribution of electricity in the Central Zone of Odisha - 5th
F
respondent, a retired officer, and Chairman of CESU, further
asked to function as CEO of CESU and accordingly given a
consolidated honorarium - Public interest litigation praying for
issue of writ of "quo warranto" for quashing the order of the
Orissa Electricity Regulatory Commission entrusting the
functions of CEO of the CESU to 5th respondent - High Court G
quashed appointment of respondent No. 5 and further directed
the appellant to recover the amount paid to 5th respondent
towards honorarium - Justification - Held: Not justified - High
621
H
622
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
Court erroneously opined that it was an appointment - It was
only a contract appointment to choose a highly qualified and
skilled person - High Court, instead of appreciating the
eligibility of the 5th respondent, adverted to the concept of
internal administration of CESU - Reasons ascribed by the
B
High Court to quash the arrangement unacceptable - Once
the decision of the High Court, that Respondent no. 5 could
not have been allowed to remain in-charge of CEO, was
dislodged, as a logical corollary the direction for recovery gets
annulled - Electricity Act, 2003 - s.22 - Central Electricity
c Supply Utility of Orissa (Operation and Management)
Scheme, 2006.
Service Law - Appointment - Nullification of, by issue of
a writ of quo warranto - Recovery of salary or honorarium -
Permissibility- Held: Even while issuing a writ of quo warranto,
D there cannot be any direction for recovery of sum - While
exercising power for issue of writ of quo warranto, the Court
only makes a public declaration that the person holding the
public office is a usurper and not eligible to hold the post and
after the declaration is made he ceases to hold the office -
E
Till declaration is made, the incumbent renders service and
when he has rendered service he cannot be deprived of his
salary - Denial of pay for the service rendered tantamounts
to forced labour which is impermissible - Asking someone
to work and when his appointment is nullified by issue of a
F
writ of quo warranto by the Court, neither the employer can
recover the amount nor the Court can direct for recovery of
the same.
Appellant-CESU (Central Electricity Supply Utility of
G Odisha) is a deemed licensee under the Electricity Act,
2003 for distribution of electricity in the Central Zone of
Odisha. It was created under Section 22 of the Electricity
Act, 2003 passed by the Orissa Electricity Regulatory
Commission. The Commission formulated Central
Electricity Supply Utility of Orissa (Operation and
H Management) Scheme, 2006 for
O~eration and
CENTRAL ELECTRICITY SUPPLY UTILITY OF
623
ODISHA v. DHOBEI SAHOO
Management of CESU. 5th respondent, a retired officer,
A
and Chairman of CESU, further asked to function as CEO
of CESU and accordingly given a consolidated
honorarium.
Respondent No. 1 and another filed a public interest
litigation praying for issue of writ of "quo warranto" for
quashing of th

## Text

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[2013) 14 S.C.R. 621
CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA
v.
DHOBEI SAHOO & ORS.
(Civil Appeal No. 9872 of 2013)
NOVEMBER 01, 2013
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
Writs - Writ of quo waffanto - Scope and ambit of - Duty
of the Court while dealing with a writ of quo waffanto - Held:
A
B
Jurisdiction of the High Court while issuing a writ of quo C
warranto is limited and can only be issued when the person
holding the public office lacks the eligibility criteria or when
the appointment is contrary to the statutory rules - While
dealing with the writ of quo warranto another aspect has to be
kept in view - In filing a writ of quo waffanto, the principle of D
doctrine of delay and /aches should not be allowed any play
because the person holds the public office as a usurper and
such continuance is to be prevented by the Court - The Court
is required to see that the larger public interest and the basic
concept pertaining to good governance are not thrown to the
E
winds - Constitution of India, 1950 - Art.226.
Service Law - Appointment - Quashing of - Appel/antCE SU, a deemed licensee under the Electricity Act for
distribution of electricity in the Central Zone of Odisha - 5th
F
respondent, a retired officer, and Chairman of CESU, further
asked to function as CEO of CESU and accordingly given a
consolidated honorarium - Public interest litigation praying for
issue of writ of "quo warranto" for quashing the order of the
Orissa Electricity Regulatory Commission entrusting the
functions of CEO of the CESU to 5th respondent - High Court G
quashed appointment of respondent No. 5 and further directed
the appellant to recover the amount paid to 5th respondent
towards honorarium - Justification - Held: Not justified - High
621
H
622
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
Court erroneously opined that it was an appointment - It was
only a contract appointment to choose a highly qualified and
skilled person - High Court, instead of appreciating the
eligibility of the 5th respondent, adverted to the concept of
internal administration of CESU - Reasons ascribed by the
B
High Court to quash the arrangement unacceptable - Once
the decision of the High Court, that Respondent no. 5 could
not have been allowed to remain in-charge of CEO, was
dislodged, as a logical corollary the direction for recovery gets
annulled - Electricity Act, 2003 - s.22 - Central Electricity
c Supply Utility of Orissa (Operation and Management)
Scheme, 2006.
Service Law - Appointment - Nullification of, by issue of
a writ of quo warranto - Recovery of salary or honorarium -
Permissibility- Held: Even while issuing a writ of quo warranto,
D there cannot be any direction for recovery of sum - While
exercising power for issue of writ of quo warranto, the Court
only makes a public declaration that the person holding the
public office is a usurper and not eligible to hold the post and
after the declaration is made he ceases to hold the office -
E
Till declaration is made, the incumbent renders service and
when he has rendered service he cannot be deprived of his
salary - Denial of pay for the service rendered tantamounts
to forced labour which is impermissible - Asking someone
to work and when his appointment is nullified by issue of a
F
writ of quo warranto by the Court, neither the employer can
recover the amount nor the Court can direct for recovery of
the same.
Appellant-CESU (Central Electricity Supply Utility of
G Odisha) is a deemed licensee under the Electricity Act,
2003 for distribution of electricity in the Central Zone of
Odisha. It was created under Section 22 of the Electricity
Act, 2003 passed by the Orissa Electricity Regulatory
Commission. The Commission formulated Central
Electricity Supply Utility of Orissa (Operation and
H Management) Scheme, 2006 for
O~eration and
CENTRAL ELECTRICITY SUPPLY UTILITY OF
623
ODISHA v. DHOBEI SAHOO
Management of CESU. 5th respondent, a retired officer,
A
and Chairman of CESU, further asked to function as CEO
of CESU and accordingly given a consolidated
honorarium.
Respondent No. 1 and another filed a public interest
litigation praying for issue of writ of "quo warranto" for
quashing of the order of the Commission entrusting the
functions of CEO of the CESU to the 5th respondent. The
High Court quashed the appointment of respondent No. ·
8
5 and further directed the appellant to recover the amount C
paid to the 5th respondent towards honorarium. Hence
the present appeals wherein the scope and ambit of writ
of quo warranto arose for consideration.
Allowing the appeal, the Court
D
HELD:1. The jurisdiction of the High Court while
issuing a writ of quo warranto is a limited one and can
only be issued when the person holding the public office
lacks the eligibility criteria or when the appointment is
contrary to the statutory rules. That apart, the concept of E
locus standi which is strictly applicable to service
jurisprudence for the purpose of canvassing the legality
or correctness of the action should not be allowed to
have any entry, for such allowance is likely to exceed the
limits of quo warranto which is impermissible. The basic
purpose of a writ of quo warranto is to confer jurisdiction
on the constitutional courts to see that a public office is
not held by usurper without any legal authority. While
dealing with the writ of quo warranto another aspect has
F
to be kept in view. Sometimes a contention is raised
pertaining to doctrine of delay and laches in filing a writ G
of quo warranto. There is a difference pertaining to
personal interest or individual interest on one hand and
an interest by a citizen as a relator to the court on the
other. The principle of doctrine of delay and laches
should not be allowed any play because the person holds
H
624
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A the public office as a usurper and such continuance is
to be prevented by the court. The Court is required to see
that the larger public interest and the basic concept
pertaining to good governance are not thrown to the
winds. [Para 18] [641-D-H; 642-A]
B
The University of Mysore v. C. D. Govinda Rao and
another AIR 1965 SC 491: 1964 SCR 575; High Courl of
Gujarat and another v . . Gujarat Kishan Mazdoor Panchayat
and others (2003) 4 SCC 712: 2003 (2) SCR 799; R.K. Jain
v. Union of India (1993) 4 SCC 119: 1993 (3) SCR 802; Mor
C Modern Coop. Transporl Society Ltd. v. Financial Commr. &
Secy. To Govt. of Haryana (2002) 6 SCC 269: 2002 (1)
Suppl. SCR 87 and Centre for PIL and Another v. Union of
India and Another (2011) 4 SCC 1: 2011 (4) SCR 445 -
referred to.
D
2. Public interest litigation is an ingenious and adroit
innovation of the judge-made law within the constitutional
parameters and serves as a weapon for certain purposes.
It is regarded as a weapon to mitigate grievances of the
E poor and the marginalized sections of the society and to
check the abuse of power at the hands of the Executive
and further to see that the necessitous law and order
situation, which is the duty of the State, ts pt'operly
sustained, the people in impecuniosity do not die of
F hunger, national economy is not jeopardized; rule of law
is not imperiled; human rights are not endangered, and
probity, transparency and integrity in the governance
remain in a constant state of stability. The use of the said
weapon has to be done with care, caution and
G circumspection. In the case at hand, there has been a
fallacious perception not only as regards the merits of the
case but also there is an erroneous approach in issuance
of direction pertaining to recovery of the sum from the
holder of the post. [Para 20] [642-E-G; 643-A-B]
H
Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998)
CENTRAL ELECTRICITY SUPPLY UTILITY OF
625
ODISHA v. Dl-IOBEI SAHOO
7 SCC 273: 1998 (1) Suppl. SCR 77; Ashok Kumar Pandey A
v. State of W.B. (2004) 3 SCC 349: 2003 (5) Suppl. SCR
716; 8. Singh (Dr.) v. Union of India (2004) 3 SCC 363: 2004
(2) SCR 1061; Dattaraj Nathuji Thaware v. State of
Maharashtra (2005) 1 SCC 590: 2004 (6) Suppl. SCR 900;
Gurpa/ Singh v. State of Punjab (2005) 5 SCC 136: 2005 (1)
S
Suppl. SCR 215; Bandhua Mukti Morcha v. Union of India
and others AIR 1984 SC 802: 1984 (2) SCR 67; Dr. D.C.
Wadhwa and others v. State of Bihar and others AIR 1987 SC
579: 1987 (1) SCR 798; Neetu v. State of Punjab and others
AIR 2007 SC 758: 2007 (1) SCR 223; Bholanath Mukherjee c
and others v. Ramakrishna Mission Vivekananda Centenary
College and others (2011) 5 SCC 464 2011 (5) SCR 416 and
and State of Uttaranchal v. Ba/want Singh Chaufa/ and others
(2010) 3 sec 402 - referred to.
3. When a writ of quo warranto is filed, it is the D
obligation of the relator to satisfy the court that the office
in question is a public office and is held by the usurper
without the legal authority. It is the duty of the court to
see whether the appointment has been made contrary to
the statutory rules. Issue of institutional integrity has also E
to be taken into consideration when a post is filled up
and that is where the manner in which the appointment
came to be made or whether the procedure adopted was
fair, just and reasonable are required to be seen. In the
instant case, on a perusal of the reasons adopted by the F
High Court, it is perceptible that it has paved a different
path. It has given emphasis on the role of the
Commission, the functionism of CESU, the control of the
Chairman on the CEO, the violation of the principles of
natural justice, the nature of appointment, the abuse of G
power by the Commission and the violation of the
regulations in such appointment. Most of the reasons
given by the High Court are totally unrelatable to the
sphere of issue of writ of quo warranto. [Para 35) (651-FH; 652-A-B]
H
A
626
SUPREME COURT REPORTS
[2013] 14 S.C.R.
4. In the instant case, the High Court, instead of
appreciating the eligibility of the 5th respondent, has
adverted to the concept of internal administration of
CESU, that is, CEO is required to report to the Chairman
and if the Chairman remains in charge, his actions may
B go without scrutiny. The assumption in this regard is not
correct. The Board has the overall power of supervision
and management. That apart, the power is vested with
the Commission to do so under the Scheme. The High
Court has also referred to certain provisions about the
c regulations which operate in a different field altogether
and have nothing to do with any appointments under the
Scheme. The only thing which has been highlighted by
the 1st respondent is that it was accepted by the High
Court that he was a retired officer and was appointed as
0
Chairman and further was asked to remain in charge of
CEO and was given some honorarium, which is
impermissible. In fact, what is submitted is that he
becomes an appointee in respect of two posts which the
law does not countenance. The said submission suffers
from a fundamental fallacy. The Chairman of CESU is a
E
honorary post. He was getting sitting fees for attending
the meetings. He was not even given a fixed honorarium.
Therefore, to conclude that he was holding two posts
and drawing salary for both the posts is factually
F
incorrect. [Para 39] [657-B-G]
5. The whole thing has to be scrutinized from the
point of view of power. Suitability or eligibility of a
candidate for appointment to a post is within the domain
of the appointing authority. The only thing that can be
G scrutinized by the Court is whether the appointment is
contrary to the statutory provisions/rules. [Para 40] [657G-H; 658-A]
6. In the case at hand, from the factual depiction it is
seen that though the policy and the Scheme provide that
H
CENTRAL ELECTRICITY SUPPLY UTILITY OF
627
ODISHA v. DHOBEI SAHOO
the age of the candidate shall not exceed 55 years as on A
1.9.2007, yet the tenure is extendable thereafter
depending upon the performance. Thus, though there is
a maximum age limit at the time of submission of an
application, yet the term can be extended. Even if the
maximum age limit is provided for submission of B
application and the period of appointment is three years,
it is extendable depending upon the performance. Having
regard to the nature of language used, it is to be
construed that it is a contract appointment to choose a
highly qualified and skilled person. The extension is also c
dependent upon performance. No limit is provided for
number of extensions. It would depend upon the
capability, efficiency and suitability as adjudged by the
employer. For grant of extension the person would not
have a right. Similarly his continuance for the term of 0
three years will depend upon the nature of appointment
letter issued to him. That apart, there is no maximum age
limit for Chairman. He holds a higher post and his
experience and capability have been appreciated by the
Commission. It is a well known principle that the
employer can ask an officer to remain in charge of E
another office till the said post is filled up. It is within the
permissible authority of the employer. Under the Scheme,
the Chairman was not getting any remuneration. He was
only getting sitting fees. Looking at his ability and
efficiency, the Commission thought it appropriate that he
F
should be given the charge of CEO and accordingly an
honorarium was fixed. Honorarium was not equivalent to
the salary. The High Court has erroneously opined that
it was an appointment. The 5th respondent was not
getting two sets of salary. Thus analysed, the reasons G
ascribed by the High Court to quash the arrangement are
unacceptable and, accordingly, the decision on that
score deserves to be lancinated. [Para 41) [658-G-H; 659A-G}
H
628
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
Hari Bansh Lal v. Sahodar Prasad Mahto and others
· (2010) 9 SCC 655: 2010 (10) SCR 561 - relied on.
7. Once the decision of the High Court, that the
Chairman could not have been allowed to remain inB charge of CEO, was dislodged, as a logical corollary the
direction for recovery gets annulled. But, even in a writ
of quo warranto while declaring that a person is not
eligible to hold the post had rendered service, there
cannot be recovery of amount. While exercising the
power for issue of writ of quo warranto, the Court only
C makes a public declaration that the person holding the
public office is a usurper and not eligible to hold the post
and after the declaration is made he ceases to hold the
office. Till the declaration is made, the incumbent renders
service and when he has rendered service he cannot be
D deprived of his salary. Denial of pay for the service
rendered tantamounts to forced labour which is
impermissible. When an appointment is admitted and the
incumbent functions in the post and neither suspended
nor removed from service, he is entitled to get salary, for
E it is his legal right and it is the duty of the employer to
pay it as per the terms and conditions of the appointment.
The matter may be different when someone continues
after
retir~ment
by
a
false
declaration
or
misrepresentation. Recovery of salary would amount to
F deprivation of payment while the incumbent was holding
the post and had worked. Asking someone to work and
wh«!n his appointment is nullified by issue of a writ of quo
warranto by the Court, neither the employer can recover
the amount nor the Court can direct for recovery of the
G same. There has to be some other reason for denial of
payment, recovery of salary or honorarium. (Para 42]
(659-G-H; 660-A-F]
People's Union for Democratic Rights and others v.
Union of India and others (1982) 3 sec 235: 1983 (1) SCR
H 456 - relied on.
CENTRAL ELECTRICITY SUPPLY UTILITY OF
629
ODISHA v. DHOBEI SAH06
Pollock v. Williams, 322 US 4: 88 L Ed 1095 - referred
A
to.
8. Even while issuing a writ of quo warranto there
cannot be any direction for recovery of the sum. While
entertaining a PIL pertaining to a writ of quo warranto, it
8
is the obligation of the court to pave. the path which are
governed by constitutional parameters and the
precedential set-up. It is to be borne in mind that laws are
commended to establish a society as required by the
paradigms laid down by law. The courts while
implementing law may not always be guided by total
C
legalistic approach but that does not necessarily mean
to move on totally moralistic principle which has no
sanction of law. There is a temptation to say something
in a public interest litigation which can be construed as
the overreach. Formulations of guidelines or directions
D
issued are bound to be within the constitutional
parameters. The matter may be viewed from the point of
view of the 5th respondent. True it is, his remaining incharge of the.post of the CEO was called in question
before the High Court in a public interest litigation
E
wherein a writ of quo warranto was issued. A judgment
can be erroneous but when there is a direction for
recovery of the honorarium, it indubitably creates a dent
in the honour of a person. Honour once lost may be
irredeemable or irresuscitable. [Paras 43, 44] [661-C-H)
F
Case Law Reference:
1964 SCR 575
referred to
Para 15
2003 (2) SCR 799
referred to
Para 16
1993 (3) SCR 802
referred to
Para 17
G
2002 (1) Suppl. SCR 87
referred to
Para 19
2011 (4) SCR 445
referred to
Para 19
2010 (10) SCR 561
relied on
Para 19 ·
H
630
SUPREME COURT REPORTS
[2013] 14 S.C:R.
A
1998 (1) Suppl. SCR 77
referred to
Para 19
2003 (5) Suppl. SCR 716 referred to
Para 19
2004 (2) SCR 1061
referred to
Para 19
2004 (6) Suppl. SCR 900 referred to
Para'19
B
2005 (1) Suppl. SCR 215 referred to
Para 19
1984 (2) SCR 67
referred to
Para 21
1987 (1) SCR 798
referred to
Para 22
2007 (1) SCR 223
referred to
Para 23
c
(201 O) 3 sec 402
referred to
Para 24
2011 (5) SCR 416
referred to
Para 25
1983 (1) SCR 456
relied on
Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 9872 of 2013
From the Judgment & Order dated 28.03.2012 of the High
Court of Orissa at Cuttack in Writ Petition No. 23268 of 2011.
WITH
E C.A. No. 9871 of 2013
Raj Kumar Mehta for the Appellant.
Rutwik Panda, Priyabrat Sahu, Pramod Dayal, Radha
F Shyam Jena for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted in both the special
leave petitions.
G
2. Assailing the judgment and order dated 28.3.2012
passed by the High Court of Orissa, Cuttack in WP(C) No.
23268 of 2011 whereby the Division Bench has quashed the
appointment of the respondent No. 5 herein and further directed
the pFesent appellant to recover the amount paid to the 5th
H respondent towards honorarium, in a public interest litigation
CENTRAL ELECTRICITY SUPPLY UTILITY OF
631
ODISHA v. DHOBEI SAHOO [DIPAK MISRA, J.]
preferred by the 1st respondent, the present appeals, one by A
the Central Electricity Supply Utility of Odisha (CESU) and the
other by the affected person have been preferred, by special
leave. The factual matrix and the bedrock of challenge being
similar we shall state the facts which are requisite to
understand the controversy. However, the description of the
B
parties shall be in accordance with their rank ascribed to them
in the appeal preferred by CESU.
3. The appellant-CESU has been created under Section
22 of the Electricity Act, 2003 (for brevity, "the Act") passed
by the Orissa Electricity Regulatory Commission (for short "the C
Commission"). CESU is a deemed licensee under the Act for
the distribution of electricity in the Central Zone of Odisha. It is
necessary to state here tllat on 1.4.1996 Orissa Electricity
Reforms Act, 1995 came into force providing for restructuring
of the Electricity Sector in the State of Odisha. Thereafter,
D
Orissa Electricity Reform (Transfer of Undertakings, Assets,
Liabilities, Proceedings and Personnel) Scheme Rules, 1996
came into existence and on that base a newly constituted, wholly
owned Company of the Government of Orissa, namely, Grid
Corporation of Orissa Limited (GRIDCO) was vested with the
E
Transmission, Distribution and Retail Supply functions of the
erstwhile Orissa State Electricity Board. On 1.4.1999 by virtue
of Orissa Electricity Reform (Transfer of Assets, Liabilities,
Proceedings and Personnel of Grid Corporation of Orissa
(GRIDCO) to Distributions Companies) Rules, 1998, the
F
distributions and retail Supply functions of GRIDCO were
vested with in four newly constituted Distribution Companies out
of which one was Central Electricity Supply Company of Orissa
Limited (CESCO) which was given the responsibility of
Distributions Undertakings of the Central Zone and to carry out G
them, granted a license for distribution of electricity by the
Commission. Be it noted, 51% Shareholding and Management
of CESCO vested in a private Company, namely, AES Orissa
Distribution Pvt. Ltd. (AESODPL) and the balance 49% was
held by GRIDCO. After coming into force of the Act on
H
632
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
10.06.2003 the said arrangement continued as there was
nothing inconsistent with the new legislation. On 26.2.2005 as
management of AESODPL abandoned the management of
CESCO, the license granted in favour of CESCO was revoked
by the Commission under Section 19 of the Act w.e.f.
B
1.04.2005. On 2.04.2005 an Administrator was appointed by
the Commission for management and control of CESCO.
4. As the factual matrix would further unfurl on 8.9.2006 the
Commission initiated the process for sale of utility of CESCO
under Section 20 of the Act. However, as the Utility could not
C
be sold, by order dated 8.9.2006 the Commission created a
new Utility, namely, CESU and formulated Central Electricity
Supply Utility of Orissa (Operation and Management) Scheme,
2006 (hereinafter referred to as "the Scheme") for Operation
and Management of CESU. On 5.5.2007, the Scheme was
D
amended by the Commission. Clause 5 of the Scheme defined
the powers and functions of the Chairman, CEO (CEO), Chief
Finance Officer (CFO) and Chief Operating Officer (COO). On
31.10 2007, one S.K. Dasgupta was appointed as CEO of
CESU with a financial package of Rs. 22 lakhs per annum. On
E
31.3.2010, respondent No. 5, who had earlier served as
Chairman and Managing Director of GRIDCO as well as
Member of the Commission from 2001 to 2006 and had fortyfive years of experience in the electricity sector was nominated
as member as well as Chairman of the Management Board
F
and of CESU without any remuneration. The Chairman was only
entitled to sitting fee of Rs. 2000/- per meeting.
5. As the chronology of events would depict, Mr. S. K.
Dasgupta resigned from the post of CEO on 8.8.2010 and on
10.8.2010 he was relieved. Keeping in view the smooth
G functioning of CESU, the Commission decided to entrust the
function, duties and responsibilities of CEO to the 5th
respondent with immediate effect until further orders or until
alternative arrangements were made by the Commission. It was
mentioned in the order dated 10.8.2010 that the 5th respondent
H would enjoy all the perquisites/facilities as was being given to
CENTRAL ELECTRICITY SUPPLY UTILITY OF
633
ODISHA v. DHOBEI SAHOO [DIPAK MISRA, J.]
the CEO except the monthly emoluments. It was also observed
A
that the Commission would take a view later on regarding the
desirability of giving an honorarium to the Chairman. On
12.11.2010, the Scheme was again amended and a new
Clause was inserted as Clause 4 (ix) and it was 6th
Amendment to the Scheme. On that day itself the Commission
B
fixed consolidated honorarium of Rs. 70,000/- per month for the
5th respondent.
6. After these developments, the respondent No. 1 and
another filed a public interest litigation, WP (C) No. 23268 of C
2011, on 26.8.2011 praying for issue of writ of "quo warranto"
for quashing of the order of the Commission entrusting the
functions of CEO of the CESU to the 5th respondent. It was
contended before the High Court that CESU was a Government
owned company and it had become a rehabilitation centre for
retired persons and deadwoods at the cost of public money;
D
that the Orissa State Electricity Board vide Office Order dated
30.8.1961 had adopted the service conditions of Government
servants and GRI DCO vide its Office Order dated 25.4.1996
had adopted the regulations relating to service and allied
matters for the employees of the Board transferred to GRIDCO;
E
that asking the Chairman of the Board of Management of
CESU to remain in-charge as CEO was contrary to the
Scheme as amended upto 2010 vide notification dated
12.11.201 O; that the appointment of the 5th respondent was
contrary to Regulation 13(1 )(2)(3) of GRIDCO Officers' Service
F
Regulations which provide for appointment to grades above E9 shall be on a contract basis initially for a period of three years
and renewable thereafter for such period(s) as the Board for
the Committee of the Board may prescribe until the Officer
attains the age of superannuation as provided in these G
Regulations; and that the third respondent was appointed
contrary to law and, theref.ore, his appointment should be
quashed and the salary drawn by him should be recovered.
7. The aforesaid contentions were resisted by the H
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SUPREME COURT REPORTS
[2013) 14 S.C.R.
A
Commission contending, inter alia, that the Commission had
not appointed the 5th respondent as CEO of CESU but had
assigned the functions, duties and responsibilities till an
alternative arrangement was made by the Commission and the
said arrangement was purely ad hoc in nature; that CESCO
B
Officers' Service Regulations had been adopted by CESU but
not that of GRIDCO Officers' Service Regulations; that the 5th
respondent was the Chairman of CESU in view of his bright
engineering career and vast experience in the distribution
sector and there has been no violation of any of the provisions
c of Orissa Service Code and Pension Rules; that the said
temporary arrangement had been made by the Commission
only for the interest of utility and larger interest of the public and
consumers and CESU; that the Commission had given the 5th
respondent a consolidated honorarium of Rs. 70,000/- per
0
month whereas his predecessor CEO was getting a total salary
of Rs.1,67,284/-; and that the Commission asking the 5th
respondent to remain in-charge as CEO was not violative of
any rules or regulations.
8. A counter affidavit was filed by the CESU and the 5th
E
respondent contending that a Public Interest Litigation of the
present nature was not maintainable and in any case the
Commission's handing over the charge of as CEO to the 5th
respondent would not be found fault with.
F
9. The High Court referred to the maintainability of the writ
petition and came to hold that as the post of the CEO, CESU,
had not been filled in accordance with the Service Regulations
of GRIDCO, the challenge to the effect that the Chairman being
higher in rank than the CEO could not have been asked to
G discharge the function of CEO and granting honorarium of
Rs. 70,000/- in addition to his usual perquisites, a writ of quo
warranto would lie. Thereafter, the High Court proceeded to
scrutinize the order passed by the Commission asking the 5th
respondent to discharge the functions of CEO as a temporary
measure and opined that it has to be construed as an
H
CENTRAL ELECTRICITY SUPPLY UTILITY OF
635
ODISHA v. DHOBEI SAHOO [DIPAK MISRA, J.]
appointment and the person concerned was not suitable to hold A
the post as the service regulations do not provide for the same.
The High Court referred to clause 4(iv) and clause 5 of the
Scheme and the impugned order dated 12.11.2010 whereby
the 5th respondent, Mr. Jena, was given Rs. 70,000/- per month
as a consolidated honorarium in addition to the usual B
perquisites being enjoyed by the CEO like telephone, vehicle,
travelling allowances excluding the house rent and opined
ascribing certain reasons that the said appointment was illegal
and, accordingly, quashed the same. The High Court further
directed for recovery of the amount from the 5th respondent. It c
is also apt to note here that the High Court directed that the
Commission shall immediately take steps to fill up the post of
CEO within a period of two months from the date of receipt of
the copy of the judgment and the Chairman shall not be allowed
to function till filling up of the post of CEO and some other 0
responsible officer of CESU shall act as in-charge CEO.
10. At this stage, we think it apposite to summarise the
principal reasons which have been ascribed by the High Court
while setting aside the order whereby the 5th respondent was
asked to function as CEO and given the consolidated E
honorarium:
(i)
The Commission has acted illegally and arbitrarily
in appointing the Chairman as the CEO, who is also
one of the Members of the Board Management of F
CESU.
(ii)
On reading of all the relevant clauses it is very clear
that the Chairman of the CESU is required to
supervise the smooth functioning of the CESU and
CEO is to act under the control of the Chairman. That G
being the position and the opp. party no. 3, who is
a retired officer and the Chairman of CESU could
not have been appointed as CEO.
(iii)
If the post of CEO in the organization falls vacant H
A
B
c
D
E
F
G
636
SUPREME COURT REPORTS
(2013] 14 S.C.R.
in view of the urgency of either temporary
appointment can be made or in charge
arrangement can be made for temporary period,
but the same power could not have been conferred
upon the Chairman as the Chairman is required to
supervise and control the function of officers of the
Board as well as in the Organization and, therefore,
his appointment as CEO by way of an alternative
arrangement is contrary to Clause 5 of the Scheme.
(iv)
It is not legally correct on the part of the
Commission to appoint the Chairman as the CEO,
which is contrary to the service regulations and the
5th respondent should not have been allowed to
function as the CEO having regard to the nature of
powers and functions required to be discharged by
the Chairman, for CEO is under the control and
supervision of the Chairman. As the 5th respondent
cannot supervise his own work there is violation of
principles of natural justice as he cannot find out his
own defects and discharge his responsibilities.
(v)
The Commission has acted in violation of service
regulations and hence, it is case of abuse of power.
That apart, propriety demanded that the 5th
respondent should not have entrusted with the
additional charge of CEO.
(vi)
The appointment being contrary to the guidelines
framed by CESU, the 5th respondent becomes an
usurper to the public office and hence, his
appointment deserved to be quashed.
11. We have heard Mr. P.P. Rao, learned senior counsel
for Central Electricity Supply Utility of Odisha, Mr. M.G.
Ramachandran, learned counsel for Bijay Chandra Jena,
Respondent No. 1 in person assisted by Mr. Aparajit Ninawe,
H
learned counsel, and Mr. Rutwik Panda, learned counsel for
CENTRAL ELECTRICITY SUPPLY UTILITY OF
637
ODISHA v. DHOBEI SAHOO [DIPAK MISRA, J.)
respondent No. 4 in both the appeals.
A
12. Calling in question the def~sibility of the judgment Mr.
Rao, learned senior counsel, has advanced the following
contentions: -
(a)
In relation to a service matter a public interest
B
litigation is not maintainable except as far as it
relates to a writ of quo warranto and in the case at
hand, the High Court has failed to understand the
implications of the writ of quo warranto and has not
only entertained the PIL in the garb of a writ of quo c
warranto but further proceeded to direct recovery
of the amount paid to the Chairman of the
Commission while functioning as a CEO which is
beyond the scope of a PIL.
D
(b)
A writ of quo warranto cannot be issued unless
there is violation of statutory provisions and in the
case at hand, in the absence of any statutory
provis.ion, and regard being had to the amendment
of the Scheme made on 12.11.2010 wherein subE
clause (ix) has been incorporated in clause 4
enabling the Commission to allow the Chairman to
discharge the functions and responsibilities of both
the posts, the arrangement could not have been
unsettled by the High Court.
F
(c)
The High Court has failed to appreciate that the
appointing authority has the inherent power to make
an interim arrangement when the post falls vacant
pending selection and appointment of another
eligible and suitable candidate to the post and in
G
similar analogy giving additional charge of the post
to a superior officer is not contrary to the public
policy or against the interest of the institution.
(d)
The High Court has fundamentally misconstrued the
H
A
B
c
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638
SUPREME COURT REPORTS
[2013] 14 S.C.R.
provisions under the Act, Regulations and the
Scheme and has erroneously opined that the
Chairman, who was holding the additional charge,
had usurped the position despite being eligible,
qualified and experienced.
(e)
The conclusion that the Chairman, who was age
barred for holding the post of CEO, should have
been treated to be disqualified to hold the post, is
both fallacious on facts and erroneous in law. There
is no statutory provision prescribing the age. That
apart, the policy decision and the advertisement do
not curtail the power/authority of the Commission to
make any appropriate temporary arrangement,
more so, when it is so permissible under the
Scheme.
13. Mr. Ramachandran, learned counsel, while reiterating
the submissions made by Mr. P.P. Rao, further submitted that
when the Chairman had performed the duties of the CEO, there .
was no justification to direct for recovery of the sum, for it is
E unknown to service jurisprudence and in certain circumstances
amounts to beggary which is enshrined under Article 23 of the
Constitution of India. The learned counsel would contend that
Mr. Jena who has earned his reputation in his own field, despite
the said order, had intimated CESU that he would not function
F and he is not functioning in praesenti.
14. Mr. Sahoo, appering in person and Mr. Aparajit
Ninawe, learned counsel, who assisted him, submitted that the
verdict of the High Court is absolutely flawless and relying on
G the additional affidavit it has been put forth that the post of CEO
in CESU is a selection post which should have been filled up
through a public advertisement as per the procedure of
selection and, therefore, Mr. Jena could not have been allowed
to hold two posts, namely, the Chairman of CESU as well as
the CEO. It is further contended that there is a policy decision
H for filling up of posts for senior positions in CESU and that
CENTRAL ELECTRICITY SUPPLY UTILITY OF
639
ODISHA v. DHOBEI SAHOO [DIPAK MISRA, J.]
being the position, appointment of Mr. Jena is vitiated. The said A
policy decision has been emphatically placed reliance upon to
highlight the factum of age which was 55 years in 2007. It is
also asserted in the affidavit that the age limit has been
enhanced to 60 years in the year 2012 but by the time Mr. Jena
was asked to take over the charge he was more than 69 years
B
and, hence, he was ineligible to hold the post.
15. Before we advert to the aforesaid submissions and the
legal substantiality of the order passed by the High Court, we
may refer to certain authorities that throw light on the duty of C
the Court while dealing with a writ of quo warranto. In The
University of Mysore v. G.D. Govinda Rao and another1,
Gajendrakadkar, J. (as his Lordship then was) speaking for the
Constitution Bench, has stated thus: -
"Broadly stated, the quo warranto proceeding affords a D
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 E
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
F
from being deprived of public office to which he may have
a right. It would thus be seen that if these proceedings are
adopted subject to the conditions recognized in that behalf,
they tend to protect the public from usurpers of public
office; in some cases, persons not entitled to public office G
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
1.
AIR 1965 SC 491.
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640
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A
usurper can be ousted and the person entitle to the post
allowed to occupy it. It is thus clear that before a citizen
can claim a writ of quo warranto. he must satisfy the court.
inter alia. that the office in question is a public office and
is held by usurper'without legal authority. and that
B
necessarily leads to the enquiry· as to whether the
appointment of the said alleged usurper has been made
in accordance with law or not."
c
D
E
F
G
[Emphasis supplied]
16. In High Court of Gujarat and another v. Gujarat Kishan
Mazdoor Panchayat and others2 S.B. Sinha, J., in· his
concurring opinion, while adverting to the concept of exercise
of jurisdiction by the High Court in relation to a writ of quo
warranto, has expressed thus: -
"22. The High Court in exercise of its writ jurisdiction in a
matter of this nature is required to determine at the outset
as to whether a case has been made out for issuance of
a writ of certiorari or a write of quo warranto. The jurisdiction
of the High Court to issue a writ of quo warranto is a limited
one. While issuing such a writ. the Court merely makes a
public declaration but will not consider the respective
impact of the candidates or other factors which may be
relevant for issuance of a writ of certiorari. (See R.K. Jain
v. Union of lndia3, SCC para 74)
23. A writ of quo warranto can only be issued when the
appointment is contrary to the statutory rules. (See Mor
Modern Coop. Transport Society Ltd. v. Financial
Commr. & Secy. To Govt. of Haryana4 .)
[Underlining is ours]
2.
(2003) 4 sec 112.
3.
(1993) 4 sec 119.
H
4.
(2002i 6 sec 269.
CENTRAL ELECTRICITY SUPPLY UTILITY OF
641
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17. In Centre for P/L and Another v. Union of India and A
Another°, a three-Judge Bench, after referring to the decision
in R.K. Jain (supra), has ruled thus: -
"64. Even in R.K. Jain case, this Court observed vide para
73 that judicial review is concerned with whether the
8
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 C
lawfulness/legality of its decision when impugned under the
judicial review jurisdiction."
18. From the aforesaid exposition of law it is clear as noon
day that the jurisdiction of the High Court while issuing a writ of 0--
quo warranto is a limited one and can only be issued when the
person holding tt .. o public office lacks the eligibility criteria or
when the. appointment is contrary to the statutory rules. That
apart, the concept of locus standi which is strictly applicable to
service jurisprudence for the purpose of canvassing the legality E
or correctness of the action _should not be allowed to have any
entry, for such allowance is likely to exceed the limits of quo
warranto which is impermissible. The basic purpose of a writ
of quo warranto is to confer jurisdiction on the constitutional
courts to see that a public office is not held by usurper without
F
any legal authority. While dealing with the writ of quo warranto
another aspect has to be kept in view. Sometimes a contention
is raised pertaining to doctrine of delay and laches in filing a
writ of quo warranto.