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TMI Blog2013 (11) TMI 1811X X X X Extracts X X X X X X X X Extracts X X X X ..... which are requisite to understand the controversy. However, the description of the parties shall be in accordance with their rank ascribed to them in the appeal preferred by CESU. 3. The Appellant-CESU has been created under Section 22 of the Electricity Act, 2003 (for brevity, the Act ) passed by the Orissa Electricity Regulatory Commission (for short the Commission ). CESU is a deemed licensee under the Act for the distribution of electricity in the Central Zone of Odisha. It is necessary to state here that on 1.4.1996 Orissa Electricity Reforms Act, 1995 came into force providing for restructuring of the Electricity Sector in the State of Odisha. Thereafter, Orissa Electricity Reform (Transfer of Undertakings, Assets, Liabilities, Proceedings and Personnel) Scheme Rules, 1996 came into existence and on that base a newly constituted, wholly owned Company of the Government of Orissa, namely, Grid Corporation of Orissa Limited (GRIDCO) was vested with the Transmission, Distribution and Retail Supply functions of the erstwhile Orissa State Electricity Board. On 1.4.1999 by virtue of Orissa Electricity Reform (Transfer of Assets, Liabilities, Proceedings and Personnel of Grid C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of CESU, the Commission decided to entrust the function, duties and responsibilities of CEO to the 5th Respondent with immediate effect until further orders or until alternative arrangements were made by the Commission. It was mentioned in the order dated 10.8.2010 that the 5th Respondent would enjoy all the perquisites/facilities as was being given to the CEO except the monthly emoluments. It was also observed that the Commission would take a view later on regarding the desirability of giving an honorarium to the Chairman. On 12.11.2010, the Scheme was again amended and a new Clause was inserted as Clause 4 (ix) and it was 6th Amendment to the Scheme. On that day itself the Commission fixed consolidated honorarium of Rs. 70,000/- per month for the 5th Respondent. 6. After these developments, the Respondent No. 1 and another filed a public interest litigation, WP (C) No. 23268 of 2011, on 26.8.2011 praying for issue of writ of quo warranto for quashing of the order of the Commission entrusting the functions of CEO of the CESU to the 5th Respondent. It was contended before the High Court that CESU was a Government owned company and it had become a rehabilitation centre for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent nature was not maintainable and in any case the Commission's handing over the charge of as CEO to the 5th Respondent would not be found fault with. 9. The High Court referred to the maintainability of the writ petition and came to hold that as the post of the CEO, CESU, had not been filled in accordance with the Service Regulations of GRIDCO, the challenge to the effect that the Chairman being higher in rank than the CEO could not have been asked to discharge the function of CEO and granting honorarium of Rs. 70,000/- in addition to his usual perquisites, a writ of quo warranto would lie. Thereafter, the High Court proceeded to scrutinize the order passed by the Commission asking the 5th Respondent to discharge the functions of CEO as a temporary measure and opined that it has to be construed as an appointment and the person concerned was not suitable to hold the post as the service Regulations do not provide for the same. The High Court referred to Clause 4(iv) and Clause 5 of the Scheme and the impugned order dated 12.11.2010 whereby the 5th Respondent, Mr. Jena, was given Rs. 70,000/- per month as a consolidated honorarium in addition to the usual perquisites being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out his own defects and discharge his responsibilities. (v) The Commission has acted in violation of service Regulations and hence, it is case of abuse of power. That apart, propriety demanded that the 5th Respondent should not have entrusted with the additional charge of CEO. (vi) The appointment being contrary to the guidelines framed by CESU, the 5th Respondent becomes an usurper to the public office and hence, his appointment deserved to be quashed. 11. We have heard Mr. P.P. Rao, learned Senior Counsel for Central Electricity Supply Utility of Odisha, Mr. M.G. Ramachandran, learned Counsel for Bijay Chandra Jena, Respondent No. 1 in person assisted by Mr. Aparajit Ninawe, learned Counsel, and Mr. Rutwik Panda, learned Counsel for Respondent No. 4 in both the appeals. 12. Calling in question the defensibility of the judgment Mr. Rao, learned senior counsel, has advanced the following contentions: (a) In relation to a service matter a public interest litigation is not maintainable except as far as it relates to a writ of quo warranto and in the case at hand, the High Court has failed to understand the implications of the writ of quo warranto and has not only enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unctioning in praesenti. 14. Mr. Sahoo, appearing in person and Mr. Aparajit Ninawe, learned Counsel, who assisted him, submitted that the verdict of the High Court is absolutely flawless and relying on the additional affidavit it has been put forth that the post of CEO in CESU is a selection post which should have been filled up through a public advertisement as per the procedure of selection and, therefore, Mr. Jena could not have been allowed to hold two posts, namely, the Chairman of CESU as well as the CEO. It is further contended that there is a policy decision for filling up of posts for senior positions in CESU and that being the position, appointment of Mr. Jena is vitiated. The said policy decision has been emphatically placed reliance upon to highlight the factum of age which was 55 years in 2007. It is also asserted in the affidavit that the age limit has been enhanced to 60 years in the year 2012 but by the time Mr. Jena was asked to take over the charge he was more than 69 years and, hence, he was ineligible to hold the post. 15. Before we advert to the aforesaid submissions and the legal substantiality of the order passed by the High Court, we may refer to cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f certiorari or a write of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India (1993) 4 SCC 119, 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. and Secy. To Govt. of Haryana (2002) 6 SCC 269.) (Underlining is ours) 17. In Centre for PIL and Anr. v. Union of India and Anr. (2011) 4 SCC 1, a three-Judge Bench, after referring to the decision in R.K. Jain (supra), has ruled thus: 64. Even in R.K. Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made orwhether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the judge-made law within the constitutional parameters and serves as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the marginalized sections of the society and to check the abuse of power at the hands of the Executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained, the people in impecuniosity do not die of hunger, national economy is not jeopardized; rule of law is not imperiled; human rights are not endangered, and probity, transparency and integrity in the governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives. High Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Thereafter, giving a note on caution, the Court stated: Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. 24. In State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 SCC 402, this Court adverted to the growth of public interest litigations in this country, and the view expressed in various PILs and the criticism advanced and eventually conceptualized the development which is extracted below: We deem it appropriate to broadly divide the public interest litigation in three phases: Phase I.-It deals with cases of this Court where directions and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nots and the handicapped for protection of their basic human rights and to see that the authorities carry out their constitutional obligations towards the marginalized sections of people who cannot stand up on their own and come to court to put forth their grievances. Thereafter, there has been various phases as has been stated in Balwant Singh Chaufal (supra). It is also perceptible that court has taken note of the fact how the public interest litigations have been misutilized to vindicate vested interests for the propagated public interest. In fact, as has been seen, even the people who are in service for their seniority and promotion have preferred public interest litigations. It has also come to the notice of this Court that some persons, who describe themselves as pro bono publico, have approached the court challenging grant of promotion, fixation of seniority, etc. in respect of third parties. 28. Regard being had to the aforesaid enunciation of law relating to two spheres, namely, issue of a writ of quo warranto and the directions which are justified to be issued in a public interest litigation in the said context, we shall proceed to scrutinize the legal substantiality o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer is fixed at Rs. 22,400/- per month. Besides above, he is entitled to Dearness Pay and DA at the current rate allowed by the State Government. The cost to the Company per month includes the House Rent Allowances, Medical Allowances, Books, Periodical and Telephone Allowances, Attendant's Allowances, LTC and personal Pay. Besides above, as Chief Executive Officer would be entitled to Leave Salary Contribution, Contributory Provident Fund, Service Gratuity as applicable to the post, which are included in the cost to Company. The Chief Executive Officer is entitled to Conveyance Allowance of Rs. 20,000/- per month for vehicle hired/owned by him along with the driver's pay + reimbursement of the cost of fuel for official duty beyond the local duty Or He is entitled to a vehicle provided by the CESU along with five liters of fuel per day for personal use. The option is to be exercised by the incumbent. The personal Pay includes the Management Allowances allowed to the post of Chief Executive Officer which is the monthly pay out of Medi-claim Insurance Premium and the Life Insurance Premium. As such all Medical Expenses shall be borne by him. The Personal Pay sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken for preparing an advertisement for appointment of the CEO at the time of Sengupta's appointment. It provided for filling up of senior positions for CESU. It stipulated that the tenure of appointment would be for a period of three years and extendable thereafter depending upon the performance and the maximum age limit of the candidate shall not exceed 55 years as on 1.9.2007. The qualification that was required was that the CEO shall be a person with drive and initiative and shall be in overall charge of engineering, finance, commerce, corporate/regulatory affairs and general management. He should at least possess a degree in electrical engineering. An added qualification of MBA/CA/FICWA from a reputed University was desirable. It was also stipulated that service experience of about 15-20 years of which at least 5 years was a must for top managerial position. 33. Mr. Sahoo has brought on record an advertisement for filling up the post for the period 2007-08. The advertisement dated 26.5.2012 has also been brought on record. True it is, it is after the judgment of the High Court and it reads as follows: The Chief Executive Officer shall be a person with initiative a dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... map of the functions of the licensees and the utility service. Section 19 of the Act deals with revocation of licence of a licensee. Section 20 provides for sale of utilities of licensees. It prescribes the procedure and the arrangements to be made by the Commission. Till the licence is sold, the Commission has been authorised to make interim arrangements. It has been conferred the power to appoint Administrator of the utility. Section 22 takes care of the situation where no purchase takes place, that is to say, when the utility is not sold in the manner provided under Section 20 or Section 24. We think it necessary to reproduce Section 22 of the Act: 22. Provisions where no purchase takes place . - (1) If the utility is not sold in the manner provided under Section 20 or Section 24, the Appropriate Commission may, to protect the interest of the consumers or in the public interest, issue such directions or formulate such Scheme as it may deem necessary for operation of the utility. (2) Where no directions are issued or Scheme is formulated by the Appropriate Commission under Sub-section (1), the licensee referred to in Section 20 or Section 24 may dispose of the utility in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall design and implement the organizational structure and management of the CESU. (f) In the name and on behalf of the CESU, he shall enter into contract with all external agencies and take loans from funding/financial institutions. (g) On behalf of the CESU, he shall discharge all its statutory/regulatory requirement and obligations. (h) Any other function as may be assigned by the Commission or the Management Board from time to time under the Scheme. (i) The CEO shall report to the Chairman. 37. After reproducing the same the High Court has opined thus: On reading of all the aforesaid relevant clauses it is very clear that the Chairman of the CESU is required to supervise the smooth functioning of the CESU and Chief Executive Officer is to act under the control of the Chairman. That being the position and the opp. party No. 3, who is a retired officer and the Chairman of CESU could not have been appointed as Chief Executive Officer. If the post of Chief Executive Officer in the Organization falls vacant in view of the urgency of either temporary appointment can be made or in charge arrangement can be made for temporary period, but the same power could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2010 vide letter dated 12.11.2010 under Annexure-5, which is a clear case of abuse of power of the Commission and the said appointment order is without authority of law and opp. party No. 3 should not have been entrusted with the duties, functions and responsibilities of the CEO while functioning as Chairman of CESU. Therefore, we are of the view that both Annexures-3 5 are liable to be quashed and the same are accordingly quashed and a writ of quo warranto is issued forthwith as the opp. party No. 3 is not competent to hold the post of Chief Executive Officer of CESU. 39. We have reproduced the order in extenso because we are of the considered opinion that the reasons are flawed. The Commission has the power under the Scheme to give additional charge of CEO to the Chairman. The Scheme is framed by the Commission. The whole thing is controlled by the language used in the Scheme. The High Court, instead of appreciating the eligibility of the 5th Respondent, has adverted to the concept of internal administration of CESU, that is, CEO is required to report to the Chairman and if the Chairman remains in charge, his actions may go without scrutiny. The assumption in this regard is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the Electricity Board. 41. Keeping the aforesaid opinion in mind, we shall address to the controversy in the case at hand. From the factual depiction it is seen that though the policy and the Scheme provide that the age of the candidate shall not exceed 55 years as on 1.9.2007, yet the tenure is extendable thereafter depending upon the performance. We have referred to the same only for the purpose that though there is a maximum age limit at the time of submission of an application, yet the term can be extended. It may be apposite to note here that even if the maximum age limit is provided for submission of application and the period of appointment is three years, it is extendable depending upon the performance. Having regard to the nature of language used, it is to be construed that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salary. Denial of pay for the service rendered tantamounts to forced labour which is impermissible. When an appointment is admitted and the incumbent functions in the post and neither suspended nor removed from service, he is entitled to get salary, for it is his legal right and it is the duty of the employer to pay it as per the terms and conditions of the appointment. The matter may be different when someone continues after retirement by a false declaration or misrepresentation. Recovery of salary would amount to deprivation of payment while the incumbent was holding the post and had worked. Asking someone to work and when his appointment is nullified by issue of a writ of quo warranto by the Court, we think that neither the employer can recover the amount nor the Court can direct for recovery of the same. There has to be some other reason for denial of payment, recovery of salary or honorarium. In this context, we may fruitfully reproduce a passage from People's Union for Democratic Rights and Ors. v. Union of India and Ors. (1982) 3 SCC 235: ...if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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