Supreme Court of India
HARI BANSH LALversusSAHODAR PRASAD MAHTO AND ORS.
- Citation
- 2010 INSC 554
- Decided
- 30 August 2010
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
The appointment of Hari Bansh Lal as Chairman was not contrary to statutory provisions; the High Court’s order quashing it was erroneous and is set aside, allowing the appellant to continue as Chairman subject to the applicable statutory provisions.
Summary
Hari Bansh Lal, appointed Chairman of the Jharkhand State Electricity Board, faced a Public Interest Litigation filed by Sahodar Prasad Mahto alleging arbitrariness, doubtful integrity and age incapacity. The High Court quashed the appointment, relying on a note by the Chief Secretary suggesting prior suspension and a raid. On appeal, the Supreme Court held that the appointment complied with the Electricity (Supply) Act, 1948 and the Bihar State Electricity Board Rules, 1960, noting that no age limit is prescribed and the alleged suspension had been revoked. The Court ruled that suitability and integrity are matters for the appointing authority unless the appointment contravenes statutory provisions, and that a PIL is not maintainable in service matters except for a writ of quo warranto. It also rejected the State Government’s change of stance without new circumstances. Consequently, the High Court’s order was set aside and the appellant was allowed to continue as Chairman, subject to Section 5(5) of the Act and Rule 4 of the Rules.
Issues considered
- The maintainability of a Public Interest Litigation in a service appointment dispute.
- Whether the appointment of the appellant as Chairman is contrary to the Electricity (Supply) Act, 1948 or the Bihar State Electricity Board Rules, 1960.
- Whether a writ of quo warranto is appropriate in the present facts.
- Whether the suitability, age and integrity of a candidate can be challenged by a stranger through PIL.
- The propriety of the State Government altering its position before the Supreme Court without a change in circumstances.
Legislation cited
- Bihar State Electricity Board Rules, 1960s. Rule 2(5), s. Rule 4
- Electricity (Supply) Act, 1948s. 2(2), s. 5(1), s. 5(5), s. 5(6), s. 5(7)
Subjects
Public Interest LitigationService lawAppointmentElectricity BoardWrit of quo warrantoAge limitSuitabilityAdministrative law
Judgment
[2010) 10 S.C.R. 561
HARi BANSH LAL A
v.
SAHODAR PRASAD MAHTO AND ORS.
(Civil Appeal No. 7165 of 20.10)
AUGUST 30, 2010
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.)
Public interest litigation:
Appointment of appellant as Chairman of State c
Electricity Board - Challenged on the ground that
appointment was arbitrary, and integrity of appellant was
doubtful and he, being 90 years of age, was not capable to
perform duties - Before the High Court, stand of the State
Government and the Electricity Board was that the appellant D
had rendered excellent service in the Board and received
appreciation - High Court held the appointment as not only
arbitrary but also contemptuous - While quashing the
appointment, the High Court relied upon the note of the Chief
Secretary to the Chief Minister which stated that the appellant E
was suspended earlier and a raid was also conducted and that
his integrity was doubtful - On appeal, held: It was unfair on
the part of the Chief Secretary to prepare such a note - For
this, the appellant had sworn an affidavit denying the raid by
any department - Regarding the order of suspension of the
appellant, proceedings of the Government clearly showed that F
the State Government itself revoked the punishment - The
appointment of appellant was not contrary to the statutory rules
- Also there was no age limit prescribed for the appointment
of a Chairman of the Board under the Electricity (Supply) Act,
1948 - In such circumstances, the conclusion by High Court G
in this regard was erroneous, contrary to the record of
proceedings placed before it and, therefore, liable to be set
aside - The appellant is entitled to continue as Chairman of
561 H
562 SUPREME COURT REPORTS [2010] 10 S.C.R.
· A the Board - Service law - Electricity (Supply) Act, 1948 -
s.5(5) - Bihar State Electricity Board Rules, 1960 - r.4.
Maintainability of PIL in service matters - Held: Except
for a writ of quo warranto, PIL is not maintainable in service
matters - Service law - Writ.
8
Writ:
Writ of quo warranto - Held: Lies only when appointment
is contrary to a statutory provision - Service law.
c Administrative law:
Administrative authority - Appointment to a post -
Suitability or otherwise of a candidate for appointment to a
post is a function of the appointing authority and not of the
D court unless the appointment is contrary to statutory
provisions/rules - Service law.
Plea:
Change in stand - State Government taking before
E Supreme Court a stand different from the one taken by it
before the High Court - Held: It is impermissible for the State
to take a different view in the absence of any change of
circumstances.
F Respondent no.1, claiming himself to be a vidyut
shramik leader, filed a Public Interest Litigation before the
High Court challenging the appointment of the appellant
as Chairman, Jharkhand State Electricity Board on the
ground that the appellant aged about 90 years was a
G person of doubtful integrity and his appointment as the
Chairman was without following the rules or procedure.
Various allegations were made in the writ petition against
the appellant regarding the shortfall in generation,
transmission and supply of electricity and regarding
H incapacity of the appellant to perform his duties as
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 563
AND ORS.
Chairman due to his age. The prayer was· made for A
removal of the appellant. The counter affidavits, filed by
the State Government, State Electricity Board as well as
the appellant denying all the averments, were to the effect
that the appellant had rendered excellent service in the
Board and received appreciation and there was no age s
limit prescribed for the appointment of a Member or
Chairman of the Board under the Electricity (Supply) Act,
1948, and the appointment of the appellant was made
after obtaining vigilance clearance. The High Court held
that appointment of the appellant as Chairman of the c
Board was not only arbitrary but also contemptuous.
While quashing the appointment, the High Court relied
upon an earlier note of the Chief Secretary addressed to
the Chief Minister wherein he had objected to th&
appointment of the appellant on the ground that the D
appellant was suspended earlier and a raid was also
conducted and that his integrity was doubtful. The said
order was challenged by the appellant by fliing the
instant appeal.
Allowing the appeal, the Court E
HELD: 1.1. From the analysis of various judgttlt!nts
of the Court, the following principles emerge: (a) Except
for a writ of quo warranto, Public Interest Litigation is not
maintainable in service matters; (b) For issuance of writ f:"
of quo warranto, the High Court has to satisfy that the
appointment is contrary to the statutory provision; (c) To
consider 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 G
unless the appointment is contrary to statutory
provisions/rules. [Para 20) [582-C-E]
The State of Mysore and Another v. Syed Mahmood and
Others (1968) 3 SCR 363; Statesman (Private) Ltd. v. H. R.
Deb and Others (1968) 3 SCR 614; State Bank of India and H
564 SUPREME COURT REPORTS [2010] 10 S.C.R.
A Others v. Mohd. Mynuddin (1987) 4 SCC 486; The State of
Mysore & Anr. v. Syed Mahmood & Ors. (1968) 3 SCR 363
- relied on.
1.2. In the instant case, it is not seriously disputed
8 that the matter in issue is not a service matter. Besides
this objection was not raised before the High Court. Even
otherwise, in view of the fact that the appellant was initially
appointed and had served in the State Electricity Board
as a Member in terms of Section 5(4) of Electricity
C (Supply) Act, 1948 and 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, therefore, it is
impermissible to claim that the issue cannot be agitated
under service jurisprudence. The person who
D approached the High Court by way of a Public Interest
Litigation is not a 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 did not place any material or
E highlighted on what way he was suitable and eligible for
that post. [Paras 6) [572-G-H; 573-A-C]
Dr. Duryodhan Sahu and Others v. Jitendra Kumar
Mishra and Others (1998) 7 SCC 273; Ashok Kumar Pandey
F v. State of W.B. (2004) 3 SCC 349; Dr. B. Singh v. Union of
India and Others, (2004) 3 SCC 363; Dattaraj Nathuji
Thaware v. State of Maharashtra and Others (2005) 1 SCC
590; Gurpal Singh v. State of Punjab and Others (2005) 5
SCC 136; High Court of Gujarat and Anr. v. Gujarat Kishan
G Mazdoor Panchayat and Ors. (2003) 4 SCC 712; Mor
Modern Cooperative Transport Society Ltd. v. Financial
. Commissioner & Secretary to Govt. of Haryana and Another
(2002) 6 SCC 269; 8. Srinivasa Reddy v. Karnataka Urban
Water Supply & Drainage Board Employees' Assn. and Ors.
H (2006) 11 sec 731 - relied on.
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 565
AND ORS.
2.1 As regards the reference to the note of the Chief A
Secretary in the earlier writ petition wherein the appellant
was not a party, it was unfair on the part of the Chief
Secretary to prepare a note to the Chief Minister to the
effect that probably during the service period of the
appellant, he was suspended and a raid had also been B
conducted. For this, the appellant had sworn an affidavit
denying the raid by any department. As far as order of
suspension of the appellant was concerned,
proceedings of the Government dated 21.11.1975 clearly
showed that the State Government itself revoked the c
punishment. The said order was 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. [Paras 17) [578-H; 579-A-B; 580-0-E] D
E.P. Royappa v. State of Tamil Nadu and Another (1974)
4 sec 3 - relied on.
2.2. Curiously, the State Government which had
defended the qualification, service and ultimate E
appointment of the appellant as Chairman of the Board
before the High Court, changed their stand before this
Court and supported the order of the High Court. The
State Government and State Electricity Board had filed
separate detailed counter affidavits before the High Court F
highlighting the meritorious qualification of the appellant.
Though the appellant himself had filed a detailed counter
affidavit denying all the allegations made by the writ
petitioner and highlighting his qualifications and
achievements in the State Government, more particularly, G
in the Electricity Board, there was 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, it is impermissible for the
State to take a different view in the absence of any change
of circumstance. In fact, the State was unable to apprise H
566 SUPREME COURT REPORTS [2010] 10 S.C.R.
A this Court for changing their stand than that of the one
asserted before the High Court. Accordingly, stand of the
State Government which is contrary to their assertion
before the High Court is rejected. [Paras 20, 21, 24] (582-
F, G-H; 583-A; 585-F-G; 586-A]
B
Badrinath vs. Government of Tamil Nadu (2000) 8 SCC
395 - relied on.
3. Though, in the PIL, the writ petitioner mentioned
the age of the appellant as 90, it was factually incorrect
G and the appellant himself sworn an affidavit and asserted,
and it is not disputed by the State, that he is 84 years old
as on date and according to him, he is hale and healthy.
It was nobody's case that his appointment was contrary
----
to any of the statutory provisions. In fact, it was described
D that his appointment was in terms of the provisions of the
Act and Bihar State Electricity Board Rules, 1960. Though
he continued 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
E 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, the
State Government has specifically mentioned that his
appointment is subject to the result of the appeal filed by
p the appellant. Taking note of all these relevant factors and
eif 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
G by the appellant, in the event of quashing the High
Court's order, he should be allowed to continue as
Chairman of Electricity Board. The impugned judgment
of the High Court is set aside. The appellant is permitted
to join duty forthwith and continue as Chairman of the
State Electricity Board in terms of his appointment order.
H
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 567
AND ORS.
His continuance in the post of Chairman is subject to the A
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. (Paras 25, 26] [587-G-H; 588-A-F]
Case Law Reference:
8
(1998) 1 sec 213 relied on Para 7
c2004) 3 sec 349 relied on Para 8
(2004) 3 sec 363 relied on Para 9
(2005) 1 sec 590 relied on Para 9
c
(2005) 5 sec 136 relied on Para 9
(2003) 4 sec 112 relied on Para 10
(2002) 6 sec 269 relied on Para 11 D
(2006) 11 sec 731 relied on Para 12
(1968) 3 SCR 363 relied on Para 13
(1968) 3 SCR 614 relied on Para 14 E
(1987) 4 sec 486 relied on Para 15
(1968) 3 SCR 363 relied on Para 15
(1974) 4 sec 3 relied on Para 18
F
(2000) 8 sec 395 relied on Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7165 of 2010.
From the Judgment & Order dated 27.04.2009 of the High G
Court of Jharkhand at Ranchi in WP (PIL) No. 5067 of 2008.
P.P. Rao, K.K. Rai, Manish Kumar Saran, Pandey Neeraj
Rai, Alok Kumar, Hari Priya, Prerna Kumari, Purushottam S.T.,
H
568 SUPREME COURT REPORTS [2010] 10 S.C.R.
A Sam Priti Phukan, Filza Moonis, Krishnanad Pandey, S.K.
Pandey, Prashant Kumar, Merusagar Samantaray, Mohit
Kumar Shah, Gopal Prasad for the appearing parties.
The Judgment of the Court was delivered by
B P. SATHASIVAM, J. 1. Leave granted.
2. This appeal. is directed againstthe 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
C 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 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 he.rein.
0
3. Brief facts:
a) Sahodar Prasad Mahto, Respondent No.1 herein,
claiming himself as Vidyut Shramik Leader, filed Writ Petition
E 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
F 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 of the Board.
G 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
H
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 569
AND ORS. [P. SATHASIVAM, J.]
retired from service of the Board in the year 1976, considering A
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
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 C
·Mr. Lal rendered excellent service in the Board, 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. D
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 E
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 F
tendered his resignation from the post during political instability.
He also highlighted 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. G
(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 H
570 SUPREME COURT REPORTS [2010) 10 S.C.R.
A 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
B appellant, Mr. Prashant Kumar, learned counsel for Respondent
No.1 and Mr. K.K. Rai, learned senior counsel for the State
Government.
Statutory provisions:
c 5. Chapter Ill of the Electricity (Supply) Act, 1948
(hereinafter referred to as "the Act") deals with constitution and
composition of State Electricity Boards, Generating
Companies, State Electricity Consultative Councils and Local
Advisory Committees. Among the other provisions, we are
D 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
E 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.
F
(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 -
G
(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
H
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 571
AND ORS. [P. SATHASIVAM, J.]
(c) one shall be a person who has experience of accounting A
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 B
appointed by the State Government to be the Chairman
of the Board.
(6) A person shall be disqualified from beingappointed
or being a member of the Board if he is a member of
Parliament or of any State Legislature or any local authority. C
(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 D
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." E
"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 F
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 G
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, H
572 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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 directions received
from the State Government, for the consideration and
action by the Board.
B
(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.
c
Xxxxxx"
The above provisions make it clear that the State Government
is empowered to constitute a State Electricity Board by
0 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
E 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.
F 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
G 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
H of Section 5(4) and from among the Members of the Board,
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 573
AND ORS. [P. SATHASIVAM, J.]
considering the qualifications specified in sub-section (4), the A
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 . B
Interest Litigation is not a 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 c
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 D
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 E
constituted under the Act cannot entertain a public interest
litigation at the instance of a total stranger."
. 8. In Ashok KumarPandey vs. State of WB., (2004) 3
SCC 349, this Court held thus:
F
"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 G
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 H
574 SUPREME COURT REPORTS [2010} 10 S.C.R.
A 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 Plls should not be entertained, the inflow of so-
called Pl Ls involving service matters_ continues unabated
B 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 Plls, official documents are being annexed without
even indicating as to how the petitioner came to possess
c 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
D 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
E 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.
F State of Maharashtra and Others, (2005) 1 SCC 590 and .
Gurpa/ Singh vs. State of Punjab and Others, (2005) 5 SCC
136.
The above principles make it clear that except for a writ of quo
G warranto, Public Interest Liti gation is not maintainable in
service matters.
Writ of Quo Warranto
10. Writ of quo warranto lies only when appointment is
H contrary to a statutory provision. In High Court of Gujarat and
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 575
AND ORS. [P. SATHASIVAM, J.]
Another vs. Gujarat Kishan Mazdoor Panchayat and Others, A
(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
8
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 C
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 D
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. of Haryana.and E
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 F
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. G
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 H
576 SUPREME COURT REPORTS [2010] 10 S.C.R.
A consider the validity of the impugned notification said to
have been issued in breach of statutory provision."
12. In 8. Srinivasa Reddy vs. Karnataka Urban Water
Supply & Drainage Board Employees' Assn. and Others,
B (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
C jurisdiction of the High Court to issue a writ of quo wa"anto
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
0 writ of quo warranto, the High Court has to satisfy that the
appointment is contrary to the statutory rules. In the 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.
E 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
F 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 =
G AIR 1968 SC 1495.
15. In State Bank of India and Others vs. Mohd. Mynuddin,
(1987) 4 sec 486, after adverting to earlier decision of this
Court in The State of Mysore & Anr. vs. Syed Mahmood &
H Ors., (1968) 3 SCR 363 this Court held:
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 577
AND ORS. [P. SATHASIVAM, J.]
" ..... The ratio of the above decision is that where the State A
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 B
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 C
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 D
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 · E
an interim order holding that any 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 F
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 G
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
H
578 SUPREME COURT REPORTS [2010] 10 S.C.R.
A noted by the High Court in the said judgment. The High Court,
however, made it amply clear at the end of the 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
B. 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
C 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
D observations were made against him and that the judgment
does not operate adversely or prejudicially against him.
17. Mr. Rao, learned senior counsel has pointed out that
the High Court committed an error in quashing the appointment
E on the wrong assumption that his integrity was doubtful, he was
suspended and a raid was also conducted. In para 14, the High
Co.urt 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
F
"..... 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 ......
G
Sd/-
(Vijay Shankar Dubey)"
(Emphasis supplied)
First of all, it is unfair on the part of the Chief Secretary to
H prepare a note to the Chief Minister in such a way that
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 579
AND ORS. [P. SATHASIVAM, J.]
" .. .probably during his service period he was suspended and A
a raid had also conducted .... ". For this, the appellant has sworn
an affidavit denying the raid by any 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 ·B
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
c
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 D
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 E
charge No.4.
Therefore the GovernmAnt has decided to lift the
punishment inflicted upon him through Departmental
Resolution No. 1962 dated 13-8-75. .·
F
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)
G
From the order of the Governor of Bihar
Sd/-
.lndra Dev Jha
Additional Secretary of Government,
Electricity Department H
580 SUPREME COURT REPORTS [2010] 10 S.C.R.
A Memo No. 116/Dated, Patna 21-11-1975 A.O.
Copy to:
(A) Additional Secretary, Electricity Department, Patna
B (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
C is being forwarded for information and necessary action.
Sd/- Indra Dev Jha
Additional Secretary to Government,
Electricity Department."
0 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
E 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 facts are that the petitioner
F 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
G 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
H temporary post of Officer on Special Duty for one year in the
HARi BANSH LAL v. SAHODAR PRASAD"MAHTO 581
AND ORS. [P. SATHASIVAM, J.)
grade of Chief Secretary to Government and the petitioner was A
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 withdraw and cancel the order dated June 27, B
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 C
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 D
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 E
the Government is in ultimate charge of the administration
and it is he who is politically answerable to the people for
the achievements and fz "Jres of the Government. If,
therefore, for any valid reason the Chief Secretary forfeits
the confidence of the Chief Minister, the Chief Minister F
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 G
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,
H
582 SUPREME COURT REPORTS [2010) 10 S.C.R.
.A 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."
B -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.
C .20. From the discussion and analysis, the following
principles emerge:-
a) Except for a writ of quo warranto, PIL is not maintainable
'1n service -matters.
D .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
E authority and not of the Cou~ unless the appointment is contrary
to statutory provisions/rules.
Curiously, but unfortunately, the State Government which
•had defended the qualification, service and ultimate
F 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
G 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
H behalf of the State of Jharkhand, the following extraction would
HARi BANSH LAL v. SAHODAR PRASAd MAHTO 583
AND ORS. [P. SATHASIVAM, J.] '
clearly show about the meritorious qualification of the appellant A
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 B
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 a number
of Indian and foreign degrees to his credit. The C
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 D
(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 E
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 F
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 G
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 H
584 SUPREME COURT REPORTS [2010)10 S.C.R.
A 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
B
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
c due vigilance clearance. His age has not prevented him
from functioning and performing his duties as required of
him. He possess vast knowledge and experience in the
field of electricity as is clear from Annexure-A to the instant
affidavit."
D
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
E
state that there are no records regarding the
suspension or raid against respondent No.5
available in the Bihar State Electricity Board,
Patna."
F 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
G
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
H
HARi ~BAN SH LAL v. SAHODAR PRASAD MAHTO 585
AND ORS. [P. SATHASIVAM, J.]
pension and other retiral benefits in full which are A
sanctioned only after vigilance clearance.
7. (A) The point of law formulated by the questio11 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
B
based on ill information. As stated 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 C
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 D
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 E
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 F
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 G
several queries from the Bench, Mr. K.K. Rai, who 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 H
586 SUPREME COURT REPORTS (2010) 10 S.C.R.
A 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
8
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
C 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 stand of the appellant and rejecting the
unreasonable stand taken by the State Government, this Court
issued the following direction.
D
"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
E 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
F 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
G
delays, the appellant has also tak8n 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
H
HARi BANSH LAL v. SAHODAR PRASAD MAHTO 587
AND ORS. [P. SATHASIVAM, J.]
years prior to 1972 have lost all their sting. The positive A
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 B
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 c
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 D
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 weeks of the receipt of this order E
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."
F
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 G
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
H
588 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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 as Chairman as on date when t~is Court issued
B 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
c 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
0
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
E judgment of the High Court is set aside. The appellant is
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,
F 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.
D.G. Apeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Public Interest Litigation"Sign in to search