Hari Bansh Lal vs Sahodar Prasad Mahto & Ors

Hari Bansh Lal .... Appellant(s)

Versus

Sahodar Prasad Mahto & Ors. .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the judgment and

order dated 27.04.2009 passed by the High Court of

Jharkhand at Ranchi in Writ Petition (PIL) No. 5067 of

2008 in and by which the High Court allowed the Public

Interest Litigation filed by Sahodar Prasad Mahto,

Respondent No. 1 herein and quashed the appointment of

Hari Bansh Lal, appellant herein as Chairman of the

1 Jharkhand State Electricity Board and directed the State

Government to make fresh appointment to the post of

Chairman of the Board in place of the appellant herein.

3) Brief facts:

a) Sahodar Prasad Mahto, Respondent No.1 herein,

claiming himself as Vidyut Shramik Leader, filed Writ

Petition No. 5067 of 2008 before the High Court of

Jharkhand challenging the appointment of Mr. Hari

Bansh Lal, the appellant herein (Respondent No.5 before

the High Court) as Chairman, Jharkhand State Electricity

Board (in short "the Board") on the ground that the Board

has been constituted in an arbitrary manner and he is a

person of doubtful integrity, aged about 90 years,

appointed as a Chairman without following the rules or

procedure. Even before filing the present writ petition, the

said Mahto and his colleague Sideshwar Prasad Sinha

filed Public Interest Litigation seeking general direction

not to appoint corrupt persons as Chairman and Members

2 of the Board. According to the writ petitioner, various

allegations and insinuations have been made against

Respondent No.5 therein who was appointed as Chairman

of the Board and during the period there had been

shortfall in generation transmission and supply of

Electricity. He also alleged that Mr. Hari Bansh Lal retired

from service of the Board in the year 1976, considering his

age, he is not in a position to perform his duties as

Chairman. He also contended that because of age factor

as well as want of knowledge and latest advanced

technologies in the field of electricity, prayed for

appropriate direction for his removal by way of a Public

Interest Litigation.

b) The State Government, Jharkhand State Electricity

Board as well as the appellant, who was Respondent No.5

therein, filed counter affidavit specifically denying all the

averments. On the other hand, the Board has highlighted

that Mr. Lal rendered excellent service in the Board,

3 received appreciation and there is no age limit prescribed

for appointment of a Member or Chairman of the Board

under the Electricity (Supply) Act, 1948. In the same way,

the State Government, in their counter affidavit, reiterated

that Mr. Lal has all the required technical qualification in

the field of Electricity. He possessed a number of Indian

and foreign degrees to his credit. All appointments were

made after obtaining vigilance clearance. In the case of

Mr. Lal also, vigilance clearance was obtained before his

appointment as Chairman of the Board. In a separate

counter affidavit, Hari Bansh Lal enumerated full details

of his qualifications, experience and expertise in the

electricity field. It is also stated that the then Chief

Minister of Jharkhand, after considering the merits of

several candidates, had ordered the appointment of Mr.

Lal as Chairman of the Board in the year 2004 and

continued till 2005 when he tendered his resignation from

the post during political instability. He also highlighted

4 the relevant provisions relating to appointment to the post

of Chairman from the Electricity (Supply) Act, 1948 as

well as the Bihar Electricity Board Rules, 1960 which is

applicable to the State of Jharkhand.

c) On going through the rival contentions, the Division

Bench of the High Court, after holding that appointment

of Respondent No.5 therein, as Chairman of the Board is

not only arbitrary but also contemptuous and ultimately

quashed his appointment. The said order is under

challenge by the appellant-Hari Bansh Lal, by way of

special leave before this Court.

4) Heard Mr. P.P. Rao, learned senior counsel for the

appellant, Mr. Prashant Kumar, learned counsel for

Respondent No.1 and Mr. K.K. Rai, learned senior counsel

for the State Government.

Statutory provisions:

5) Chapter III of the Electricity (Supply) Act, 1948

(hereinafter referred to as "the Act") deals with

5 constitution and composition of State Electricity Boards,

Generating Companies, State Electricity Consultative

Councils and Local Advisory Committees. Among the

other provisions, we are concerned about Sections 2 (2)

and 5 which read thus:

"2. (2) "Board" means a State Electricity Board constituted under section 5;"

"5. Constitution and composition of State Electricity Boards.- (1) The State Government shall, as soon as may be after the issue of the notification under sub-section (4) of section 1, constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification.

(2) The Board shall consist of not less than three and not more than seven members appointed by the State Government.

(4) Of the members -

(a) one shall be a person who has experience of, and has shown capacity in, commercial matters and administration;

(b) one shall be an electrical engineer with wide experience; and

(c) one shall be a person who has experience of accounting and financial matters in a public utility undertaking, preferably an electricity supply undertaking.

(5) One of the members possessing any of the qualifications specified in sub-section (4) shall be

6 appointed by the State Government to be the Chairman of the Board.

(6) A person shall be disqualified from being appointed or being a member of the Board if he is a member of Parliament or of any State Legislature or any local authority.

(7) No act done by the Board shall be called in question on the ground only of the existence of any vacancy in, or any defect in the constitution of, the Board."

By virtue of power conferred by Section 78 of the Act, the

Governor of Bihar framed the Bihar State Electricity Board

Rules, 1960. Rules 2 (5) and 4, which are relevant, read

thus:

"2. (5) "Chairman" means the Chairman of the Board appointed under sub-section (5) of section 5."

"4. Powers of the Chairman, and terms of office, remuneration, allowances and conditions of service of the Chairman and other Members of the Board.-

(i) Subject to such directions as may be issued by State Government from time to time, and such delegation as may be made by the Board in this behalf, the Chairman shall be responsible for the day-to-day administration, and for properly carrying out the directions and decisions of the Board. He shall function as a liaison between the State Government and the Board in matters arising out of the administration of the Act to the extent the State Government is concerned.

(ii) The Chairman may bring to the notice of the State Government any difference of opinion, on matters of policy, arising between him and the other members of the Board. He may also similarly refer any other matters of policy to the State Government and place the

7 directions received from the State Government, for the consideration and action by the Board.

(iii) The Chairman and other Members shall hold office for such period not exceeding five years and shall, on the expiration of their term of office, be eligible for re-

appointment under such conditions as the State Government may, from time to time, by order, direct.

Xxx xxx"

The above provisions make it clear that the State

Government is empowered to constitute a State Electricity

Board by issuance of a notification in the official gazette.

As per sub-section (4) of Section 5, one of the members

having qualification is eligible to be appointed by the State

Government as Chairman of the Board. As per rule 4(3),

the Chairman and other members shall hold office for a

period not exceeding five years. The said rule also makes

it clear that on the expiration of the term of office, if they

are eligible for re-appointment, the State Government is

empowered to appoint those persons on such conditions.

It is not in dispute that there is no prescribed age limit for

holding the post of Chairman.

8 PIL in service matters:

6) About maintainability of the Public Interest Litigation

in service matters except for a writ of quo warranto, there

are series of decisions of this Court laying down the

principles to be followed. It is not seriously contended

that the matter in issue is not a service matter. In fact,

such objection was not raised and agitated before the High

Court. Even otherwise, in view of the fact that the

appellant herein was initially appointed and served in the

State Electricity Board as a Member in terms of Section

5(4) and from among the Members of the Board,

considering the qualifications specified in sub-section (4),

the State Government, after getting a report from the

vigilance department, appointed him as Chairman of the

Board, it is impermissible to claim that the issue cannot

be agitated under service jurisprudence. We have already

pointed out that the person who approached the High

Court by way of a Public Interest Litigation is not a

9 competitor or eligible to be considered as a Member or

Chairman of the Board but according to him, he is a

Vidyut Shramik Leader. Either before the High Court or

in this Court, he has not placed any material or

highlighted on what way he is suitable and eligible for that

post.

7) In Dr. Duryodhan Sahu and Others vs. Jitendra

Kumar Mishra and Others, (1998) 7 SCC 273, a three-

Judge Bench of this Court held "if public interest

litigations at the instance of strangers are allowed to be

entertained by the Tribunal, the very object of speedy

disposal of service matters would get defeated". In para

21, this Court reiterated as under:

"21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger."

8) In Ashok Kumar Pandey vs. State of W.B., (2004) 3

SCC 349, this Court held thus:

1

"16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations where even a minuscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts."

9) The same principles have been reiterated in the

subsequent decisions, namely, Dr. B. Singh vs. Union of

India and Others, (2004) 3 SCC 363, Dattaraj Nathuji

Thaware vs. State of Maharashtra and Others, (2005)

1 SCC 590 and Gurpal Singh vs. State of Punjab and

Others, (2005) 5 SCC 136.

1 The above principles make it clear that except for a writ of

quo warranto, Public Interest Litigation is not

maintainable in service matters.

Writ of Quo Warranto

10) Writ of quo warranto lies only when appointment is

contrary to a statutory provision. In High Court of

Gujarat and Another vs. Gujarat Kishan Mazdoor

Panchayat and Others, (2003) 4 SCC 712, (three-Judges

Bench) Hon'ble S.B. Sinha, J. concurring with the

majority view held:

"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 writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India 2, SCC para 74.)

23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)"

11) In Mor Modern Cooperative Transport Society

Ltd. vs. Financial Commissioner & Secretary to Govt.

1 of Haryana and Another, (2002) 6 SCC 269, the

following conclusion in para 11 is relevant.

"11. ... .... The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision."

12) In B. Srinivasa Reddy vs. Karnataka Urban Water

Supply & Drainage Board Employees' Assn. and

Others, (2006) 11 SCC 731, this Court held:

"49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules."

It is clear from the above decisions that even for issuance

of writ of quo warranto, the High Court has to satisfy that

the appointment is contrary to the statutory rules. In the

1 later part of our judgment, we would discuss how the

appellant herein was considered and appointed as

Chairman and whether he satisfied the relevant statutory

provisions.

Suitability of a candidate for appointment

13) In The State of Mysore and Another vs. Syed

Mahmood and Others, (1968) 3 SCR 363 = AIR 1968 SC

1113, it was held that suitability or otherwise, appointing

authority is the best person and the court cannot issue a

positive writ without giving the authority/Government

opportunity in the first instance to consider his/her claim

for promotion.

14) The same view has been reiterated in Statesman

(Private) Ltd. vs. H.R. Deb and Others, (1968) 3 SCR 614

= AIR 1968 SC 1495.

15) In State Bank of India and Others vs. Mohd.

Mynuddin, (1987) 4 SCC 486, after adverting to earlier

decision of this Court in The State of Mysore & Anr. vs.

1 Syed Mahmood & Ors., (1968) 3 SCR 363 this Court

held:

".....The ratio of the above decision is that where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the court should not ordinarily issue a writ to the government or the statutory authority to promote an officer straightway. The principle enunciated in the above decision is equally applicable to the case in hand."

It is clear from the above decisions, suitability or

otherwise of a candidate for appointment to a post is the

function of the appointing authority and not of the court

unless the appointment is contrary to statutory

provisions/rules.

Materials relied on by the High Court

16) Before considering the materials relied on by the High

Court, it is relevant to mention CWJC No. 924 of 2001

which was filed to ensure that persons of unimpeachable

integrity alone are made members of the Board. The High

Court issued an interim order holding that any

1 appointments made would be subject to the final outcome

of the writ petition. Mr. Rajiv Ranjan and Mr.

Sachidanand Akhauri were appointed as Chairman and

Member of the Board respectively. The appellant herein

was not a party to the said writ petition. By order dated

21.09.2001, the High Court allowed the said writ petition

and set aside the appointment of Mr. Rajiv Ranjan and

others. Certain aspects in the judgment are relevant to

the present case. They are, while discussing the facts

antecedent to the appointment of Mr. Rajiv Ranjan and

others, the fact that the appellant herein was originally

chosen by the Chief Minister for the post of Chairman of

the Board was discussed and the fact that the Chief

Secretary of the State noted in his objections that

probably the appellant herein was suspended earlier when

he was in government service and a raid was conducted

was noted by the High Court in the said judgment. The

High Court, however, made it amply clear at the end of the

1 judgment that its observations regarding the appellant

and others is not to be construed as an opinion with

respect to the correctness of those observations. It is

relevant to point out that review petitions were filed by the

State of Jharkhand and Sachidanand Akhauri who was

one of the persons appointed to the Board and whose

appointment was also quashed. By order dated

04.04.2002, the High Court allowed both review petitions,

primarily on the ground that Mr. Rajiv Ranjan and Mr.

Sachidanand whose appointments were quashed were not

parties in the writ proceedings and they should have been

heard before setting aside their appointment. When Mr.

H.B. Lal filed impleadment application in the review

petition in view of certain observations made about him in

the original judgment, the High Court made it clear that

no adverse order was passed and no adverse observations

were made against him and that the judgment does not

operate adversely or prejudicially against him.

1

17) Mr. Rao, learned senior counsel has pointed out that

the High Court committed an error in quashing the

appointment on the wrong assumption that his integrity

was doubtful, he was suspended and a raid was also

conducted. In para 14, the High Court has extracted note

of the Chief Secretary to the Chief Minister. We are

concerned with the following passage which the High

Court heavily relied on

"..... I have no knowledge regarding image of Shri Hari Bansh Lal during his past service, but probably during his service period he was suspended and a raid had also conducted. It is proper to get information as to what finally happened in those related matters. .....

Sd/-

(Vijay Shankar Dubey)"

(Emphasis supplied)

First of all, it is unfair on the part of the Chief Secretary to

prepare a note to the Chief Minister in such a way that "...

probably during his service period he was suspended

and a raid had also conducted....". For this, the

appellant has sworn an affidavit denying the raid by any

1 department as mentioned and no other material produced

before the Court to substantiate this claim. As far as

order of suspension of the appellant is concerned,

proceedings of the Government dated 21.11.1975 clearly

shows that the State Government itself revoked the

punishment. It is useful to refer the entire proceeding of

the State Government.

"Resolution No. 114 Patna, Dated :21-11-1975

Since Sh. Harbansh Lal (who is a permanent Officer, Electricity Department, Government of Bihar and at present is posted as Electrical Superintending Engineer in Purnea) has given his representation against the punishment inflicted through resolution No. 1962 dated 13-8-75 and

Since upon his representation and the opinion received from Bihar State Electricity Board and after considering the recommendations from the Cabinet (Vigilance) Department, he has not been directly found guilty for the charge No.4.

Therefore the Government has decided to lift the punishment inflicted upon him through Departmental Resolution No. 1962 dated 13-8-75.

Order:- It is ordered that the copy of this resolution be forwarded to Sh. Hari Bansh Lal and other concerned officials for information and necessary action.

(Emphasis supplied) From the order of the Governor of Bihar Sd/-

1 Indra Dev Jha Additional Secretary of Government, Electricity Department

Memo No. 116/Dated, Patna 21-11-1975 A.D. Copy to:

(A) Additional Secretary, Electricity Department, Patna (B) Chairman, Bihar State Electricity Board, Patna (C) Sh. H.B. Lal, Electrical Superintending Engineer, Purnea Division.

In pursuance to Departmental, Memo 1962 dated 13-8- 75 is being forwarded for information and necessary action.

Sd/- Indra Dev Jha Additional Secretary to Government, Electricity Department."

The above proceeding makes it clear that even the one

punishment of suspension had been revoked by the State

Government by a regular order dated 21.11.1975. The

said order came to be passed in the name of the Governor.

In such circumstance, the conclusion by the High Court in

this regard is erroneous, contrary to the record of

proceedings placed before it and liable to be set aside.

18) It is highly useful to refer a decision of the

Constitution Bench of this Court in E.P. Royappa vs.

State of Tamil Nadu and Another, (1974) 4 SCC 3. The

2 facts are that the petitioner was a member of Indian

Administrative Service. On July 11, 1969 he was posted

to act on the post of Additional Chief Secretary

temporarily created in the grade of Chief Secretary for one

year. On November 13, 1969 he was posted to act as

Chief Secretary. On April 7, 1971 he was appointed

Deputy Chairman of the State Planning Commission

created temporarily for a period of one year in the grade of

Chief Secretary to Government. The petitioner went on

leave and even after returning from leave he did not join

the said post. By order dated June 27, 1972 Government

created another temporary post of Officer on Special Duty

for one year in the grade of Chief Secretary to Government

and the petitioner was transferred to the said post but he

did not join the duties and in July, 1972 the petitioner

filed the writ petition under Article 32 of the Constitution

before this Court asking for a writ of mandamus

or any writ, direction or order directing the respondent to

2 withdraw and cancel the order dated June 27, 1972.

19) After considering various issues, the Constitution

Bench highlighted about the role of the Chief Secretary

and the ultimate decision of the Chief Minister in

appointing a person for a highest post in the State,

namely, Chief Secretary, which reads as under:

"87. Now, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief Secretary is a highly sensitive post. It is a post of great confidence -- a lynchpin in the administration -- and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post, provided of course that does not involve violation of any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of the Chief Secretary from his post in such a case would not be arbitrary and it would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without proper justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants."

2 If we apply the same principles to the appellant, who was

appointed as Chairman of the Electricity Board by the

Chief Minister, after fulfilling the criteria, the said

appointment cannot be interfered lightly without adequate

material about his integrity or inefficiency in service.

20) From the discussion and analysis, the following

principles emerge:-

a) Except for a writ of quo warranto, PIL is not

maintainable in service matters.

b) For issuance of writ of quo warranto, the High Court

has to satisfy that the appointment is contrary to the

statutory rules.

c) Suitability or otherwise of a candidate for appointment

to a post in Government service is the function of the

appointing authority and not of the Court unless the

appointment is contrary to statutory provisions/rules.

Curiously, but unfortunately, the State Government

which had defended the qualification, service and ultimate

2 appointment of Mr. Lal (appellant herein) as Chairman of

the Board before the High Court, changed their stand

before this court for the reasons best known to them and

supported the order of the High Court.

21) Now, it is necessary to highlight the stand of the State

Government before the High Court. The State has filed a

separate counter affidavit. The State Government, State

Electricity Board and the appellant herein, as Chairman of

the Board, have filed separate detailed counter affidavits.

In the counter affidavit dated 27.11.2008 (Annexure-P12)

filed on behalf of the State of Jharkhand, the following

extraction would clearly show about the meritorious

qualification of the appellant and the ultimate decision of

the Government in appointing him as a Chairman of the

Board:

"4. That the public interest litigation filed by the writ petitioner is thoroughly misconceived and is liable to be dismissed.

7. That it is stated and submitted that the Respondent No.5 has all the required educational qualifications as well as vast experience in the field of electricity. He has

2 a number of Indian and foreign degrees to his credit. The Respondent No.5 is a B.Sc. in the Electrical and Mechanical Engineering from the Banaras Hindu University (B.H.U.) and M.Sc. in Electrical Engineering from Illinois Institute of Technology, Chicago (U.S.A.). The Respondent No.5 was awarded D.Sc. by TGPU, Opeinde (Netherland). He has been in generation, transmission and distribution of electricity and rural electrification for about 35 years. He was also awarded a Colombo Plan Scholarship in U.K. for 1 and = years and he was a graduate student in U.S.A. for 2 years where he undertook training as well as study and practices of the latest technologies connected with Electric Power System Engineering.

8. That it is stated and submitted that the Respondent No.5 has also had tenure as a Consultant of National Hydro Electric Power Corporation (NHPC) a public sector undertaking of the Govt. of India. A bare perusal of the resume of the Respondent No.5 shows that he is fully and completely capable and qualified in every manner to hold the post of the Chairman of the Jharkhand State Electricity Board.

10. That with regard to the prayer made in para-1 of the writ petition that all appointments should be made in the Electricity Board only subsequent to obtaining vigilance clearance it is stated that the said clearance had been duly obtained and the case of the appointment of the Respondent No.5 from the Government of Bihar vide letter No. 5532 dated 6.10.2004.

11. That the statements made in para-1 of the writ application are the reliefs as sought for by the petitioner. With regard to para 1(a) and (b) of the writ petition, it is stated that there is no arbitrariness in the reconstitution of the Jharkhand State Electricity Board. The Chairman (Respondent No.5) was earlier appointed after obtaining due vigilance clearance. His age has not prevented him from functioning and performing his duties as required of him. He possess vast knowledge

2 and experience in the field of electricity as is clear from Annexure-A to the instant affidavit."

22) In the second supplementary counter affidavit with

regard to suspension or raid, the following is the stand of

the Government before the High Court.

"That the answering respondents however state that there are no records regarding the suspension or raid against respondent No.5 available in the Bihar State Electricity Board, Patna."

23) On behalf of the Jharkhand State Electricity Board,

Law Officer of the Board has filed a counter affidavit. The

following information about the appellant herein are

relevant.

"5. That it is stated that the respondent No.5 after successful completion of his service superannuated from the Bihar State Electricity Board as Technical Member. The respondent no.5 has rendered his excellent service in the Board and has received appreciation all along his working period, and considering the excellent performance of the respondent no.5, he has been allowed to get the entire pension and other retiral benefits in full which are sanctioned only after vigilance clearance.

7. (A) The point of law formulated by the question whether a person of more than 90 years of age can be allowed to hold the post of Chairman of the State Electricity Board is based on ill information. As stated

2 above, earlier also Electricity (Supply) Act, 1948 had not prescribed any upper age limit for appointment as member or Chairman of the Board. It is further relevant to mention here that the respondent No.5 is not 90 years of age and he was retired in 1985.

12. That with regard to the statements made in para 15 of the instant PIL, it is stated that the same is disputed and therefore, denied. It is further stated that during the short tenure of working of the respondent no.5 as Chairman Electricity Board i.e. for 8-9 months, from 18th October, 2004 to 27th July, 2005 the condition of electricity in the State had improved. Besides, the said improvement the respondent no. 5 had taken steps for enhancement in electric supply and rural electrification implementing different schemes. ..... ....."

24) Though the appellant himself has filed a detailed

counter affidavit denying all the allegations made by the

writ petitioner and highlighted his qualifications and

achievements in the State Government, more particularly,

in the Electricity Board, there is no need to traverse the

same in the light of the specific stand as well as

encomium by the State Government and the Electricity

Board. In view of the same, we hold that it is

impermissible for the State to take a different view in the

absence of any change of circumstance. In fact, in spite of

several queries from the Bench, Mr. K.K. Rai, who

2 represented the State was unable to apprise this Court for

changing their stand than that of the one asserted before

the High Court. He is not in a position to put-forth any

compelling circumstance to take such a stand except

change of Government and persons in power.

Accordingly, we reject his present stand which is contrary

to their assertion before the High Court. For all these

reasons, the impugned order of the High Court is liable to

be set aside.

25) Now, we have to consider the eligible relief or

entitlement by the appellant in view of our conclusion.

Mr. P.P. Rao, learned senior counsel, by drawing our

attention to the decision of this Court in Badrinath vs.

Government of Tamil Nadu and Others, (2000) 8 SCC

395 submitted that if this Court accepts the appellant's

case, it is entitled to issue a positive mandamus and

permit him to continue as Chairman of the State

Electricity Board. In the reported decision, accepting the

2 stand of the appellant and rejecting the unreasonable

stand taken by the State Government, this Court issued

the following direction.

90. In the light of the above precedents, we have considered whether this is a fit case where this Court should issue a mandamus or remit the matter back to the State Government. After giving our anxious consideration to the facts of the case, we are of the view that having regard to our findings on Points 1 to 5 and to the continuous unfair treatment meted out to the appellant by the State of Tamil Nadu -- even as accepted by the Central Government in its comments -- this is a pre-eminently fit case requiring the issue of a mandamus. We are, therefore, constrained to exercise all the powers of this Court for rendering justice and to cut short further proceedings. The consideration of the appellant's case for the said promotion has been hanging fire and going up and down for the last twenty- five years. Disgusted with the delays, the appellant has also taken voluntary retirement. In the light of our decision on Points 1 to 5, we declare the censure in the fourth case as void and without jurisdiction and in the alternative also, as liable to be quashed under Wednesbury principles. The adverse remarks of bygone years prior to 1972 have lost all their sting. The positive factors in the appellant's favour both recorded (at the compulsion of the Central Government) and others to which we have referred to earlier as meriting consideration are, in our opinion, sufficient to entitle him for promotion to the super-time scale. The appellant's case is, in our view, no less inferior to the cases of the other officers who were conferred the similar benefit of super-time scale by the State of Tamil Nadu, details of which have been profusely given in the writ petition. For the aforesaid reasons, we quash the punishment of censure, the assessment made by the Joint Screening Committee, the Orders passed by the State and Central Government refusing to grant him super-time scale and in rejecting the appeal of the appellant and we further direct as follows:

In the special and peculiar circumstances of the case, we direct the respondents to grant the appellant the benefit of the super-time scale from the date on which the appellant's junior Shri P. Kandaswamy was granted super-time scale. The respondents are accordingly directed to pass an Order in this behalf within eight

2 weeks of the receipt of this order and to give him all consequential benefits, attendant thereto. The said benefits shall also be reflected in his pension and other retiral benefits. They shall be worked out and paid to him within the time aforementioned."

Relying on this and pointing out that the present

appellant - Hari Bansh Lal was similarly placed like Mr.

Badrinath prayed similar direction for his continuance as

Chairman of the State Electricity Board. Though, in the

PIL, the writ petitioner has mentioned the age of Mr. Lal

as 90, it is factually incorrect and Mr. Lal himself sworned

an affidavit and asserted and not disputed by the State

that he is 84 as on date and according to him, he is hale

and healthy. We have already reproduced the stand of the

State Government before the High Court about his

qualification and service rendered as Member and

Chairman in the State Electricity Board. It is not

anybody's case that his appointment was contrary to any

of the statutory provisions. In fact, it was described that

his appointment was in terms of the provisions of the Act

and Rules. It is also pointed out that though he continued

3 as Chairman as on date when this Court issued notice

and also directed his continuance on 01.05.2009, the fact

remains that he could not be continued and the State

Government had appointed another person. It is relevant

to point out that in the appointment order relating to the

present incumbent Mr. Shiv Basant, the State

Government has specifically mentioned that his

appointment is subject to the result of the appeal filed by

Hari Bansh Lal. Taking note of all these relevant factors

and of the fact that admittedly, there is no age limit

prescribed in the rules for appointment to the post of

Chairman and also with regard to the stand of the State

Government about the qualification as well as good service

rendered by the appellant, we feel that in the event of

quashing the High Court's order, he should be allowed to

continue as Chairman of Electricity Board.

26) In the light of the above discussion, the impugned

judgment of the High Court is set aside. The appellant is

3 permitted to join duty forthwith and continue as

Chairman of the State Electricity Board in terms of his

appointment order. We make it clear that his continuance

in the post of Chairman is subject to the ultimate decision

of the Government, however, the same shall be in

accordance with Section 5(5) of the Act and Rule 4 of the

Rules.

27) With the above direction, the appeal is allowed. No

costs.

.........................................J. (P. SATHASIVAM)

..........................................J. (DR. B.S. CHAUHAN) NEW DELHI;

AUGUST 30, 2010

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