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  REPORTABLE   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     7600            OF     2012   @ Special Leave Petition (C) No.1673/2012

Rajesh Awasthi    .. Appellant

Versus

Nand Lal Jaiswal & Ors.       .. Respondents

J     U     D     G     M     E     N     T   

K.     S.     RADHAKRISHNAN,     J.   

1. Leave granted.

2. We are, in this case, concerned with the question whether  

the High Court was justified in issuing a writ of quo warranto  

holding that the appellant has no authority in continuing as

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Chairperson of U.P. State Electricity Regulatory Commission (for  

short ‘the Commission’) on the ground that the Selection  

Committee had not complied with sub-section (5) of Section 85 of  

the Electricity Act, 2003 (for short ‘the Act’).

3. The post of the Chairperson of the Commission fell vacant on  

21.10.2008.  The government of Uttar Pradesh, in exercise of its  

powers conferred under Section 85(1) of the Act, constituted a  

Selection Committee vide notification dated 22.12.2008 consisting  

of three members headed by a retired judge of the High Court and  

two other members i.e. Chief Secretary of the State of U.P. and  

Chairman of the Central Electricity Commission for finalizing the  

selection of the Chairperson.  Applications were invited intimating  

various authorities including Ministry of GOI, CAG, CEA, all the  

Secretaries of Power working in different States in the country,  

CBDT, PSUs power sectors etc.  Thirty persons applied for the  

post including the appellant.  The meeting of the Selection  

Committee was held on 26.12.2008 and Selection Committee  

selected two persons on merit, namely, the appellant and one Mr.

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Amit Kumar Asthana.  Panel of two names was forwarded by the  

Selection Committee to the government of U.P. with an asterisk  

against the name of the appellant stating that if he was appointed,  

the government would ensure first that the provisions of sub-

section (5) of Section 85 of the Act would be complied with.  The  

government appointed the appellant as the Chairman of the  

Commission on 29.12.2008.  The appellant on that date sent a  

letter to the State Government stating that he had resigned from  

his previous assignments on 27.12.2008 and severed all his links  

with the private sector as required under Section 85 of the Act.   

4. The first respondent herein who was the General Secretary,  

Jal Vidyut Unit, filed a writ petition before the High Court of  

Allahabad, Lucknow Bench seeking a writ of quo warranto,  

challenging the appointment of the appellant on various grounds.  

Apart from the contention that the Selection Committee had not  

followed the provisions contained in sub-section (5) of Section 85  

of the Act, it was also alleged that the appellant could not have  

been selected since he was working as the Joint President of the

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J.P. Power Ventures Ltd at the time of selection, hence he had  

financial and other interests in that company which would  

prejudicially affect his functions as the Chairperson of the  

Commission.  Further, it was also pointed out that the procedure  

laid down in U.P. Electricity Regulatory Commission (Appointment  

and Conditions of Service of the Chairperson and Members) Rules,  

1999 (for short ‘the 1999 Rules’) were also not complied with  

before initiating the selection process.  The appellant questioned  

the locus standi of the first respondent and contended that he was  

not an aspirant for the post and that the writ petition was filed  

after a period of more than two years after his assumption of  

charge as Chairperson of the Commission.  Referring to the  

minutes of the Selection Committee dated 26.12.2008, it was  

pointed out that the selection was validly made and the appellant  

was ranked first in panel on merit and sub-section (5) of Section  

85 was also complied with.  Further, it was stated that the  

appellant had no financial or other interests in J.P. Power Venture  

Ltd. so as to prejudicially affect his functions as Chairperson.  In  

any view, it was pointed out that he had resigned from that post

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on 27.12.2008.  

5. The High Court after considering the rival contentions came  

to the conclusion that the Selection Committee had failed to follow  

the provisions of sub-section (5) of Section 85 of the Act, hence the  

appointment was vitiated and the appellant had no authority to  

hold the post of Chairperson.  Further, it was also found that the  

Selection Committee had no power to delegate the powers  

conferred on it under Section 85(5) of the Act to the State  

Government.  The court also held that the first respondent had  

sufficient locus standi to move the writ petition and the delay in  

approaching the court was not a ground, since a person who had  

been appointed contrary to a statutory provisions had no legal  

right to hold on to that post.  The High Court, therefore, allowed  

the writ petition, issued a writ of quo warranto and quashed the  

appointment of the appellant declaring the same as illegal and  

void.   

6. Shri L. Nageswara Rao, learned senior counsel appearing for  

the appellant submitted that the High Court has committed an

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error in holding that the appointment of the appellant was in  

violation of sub-section (5) of Section 85 of the Act.  Learned  

senior counsel took us through the minutes of the Committee  

meeting held on 26.12.2008 and pointed out that the Selection  

Committee, after examination of the bio-data of 30 candidates,  

prepared a panel in which the appellant’s name was shown as  

first in the order of merit.  The Selection Committee, according to  

learned counsel, was very much aware of the fact that the  

appellant was the joint Vice President of J.P. Power Venture Ltd.  

and hence had put an asterisk against his name and reminded  

the State Government that if he was to be appointed, the  

provisions of sub-section (5) of Section 85 of the Act be first  

ensured.  Learned senior counsel, therefore, submitted that there  

was substantial compliance of that provision and in any view it is  

only a curable defect, procedural in nature and a writ of quo  

warranto be not issued, being a discretionary remedy.  Referring  

to the judgment of this Court in University of Mysore & Anr. v.  

C.D. Govinda Rao & Anr. (1964) 4 SCR 575, learned senior  

counsel submitted that the suitability arrived at by the Committee

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is not a matter amenable to proceedings under quo warranto.  

Learned senior counsel also referred to the judgments of this  

Court in Mahesh Chandra Gupta vs. Union of India (2009) 8  

SCC 273 , Hari Bansh Lal v.  Sahodar Prasad Maht and  

others (2010) 9 SCC 655.    

7. Learned senior counsel submitted that, in any view of the  

matter, writ of quo warranto will not lie where the breach in  

question is curable, hence procedural in nature.  Assuming there  

is non-compliance of sub-section (5) of Section 85 of the Act, the  

matter can be relegated back to Selection Committee for due  

compliance of that provision.  Learned senior counsel also  

submitted that the writ of quo warranto is a discretionary remedy  

and hence such a course can be adopted by this Court.  Reference  

was also made to the judgment of this Court in B. Srinivasa  

Reddy v. Karnataka Urban Water Supply & Drainage Board  

Employees Associaition (2006) 11 SCC 731.

8. Mr. Prashant Bhushan, learned counsel appearing for the  

first respondent submitted that the High Court has rightly issued

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the writ of quo warranto after having found that the appointment  

was made in gross violation of sub-section (5) of Section 85 of the  

Act.  Learned counsel submitted that even the procedure laid  

down in 1999 Rules was also not complied with.  Learned counsel  

referring to the bio-data of the applicants for the post of  

Chairperson tried to make a comparison of the merit of other  

candidates and submitted that many of the candidates who had  

applied were far superior to the appellant.  Learned counsel also  

submitted that the appellant was appointed due to extraneous  

reasons and the merit was not properly assessed, leave aside, the  

non-compliance of sub-section (5) of Section 85 of the Act and  

1999 Rules.  Learned counsel also pointed out that since the  

appellant was Joint President of the J.P. Power Venture Ltd. - a  

private company at the time of selection, he was disqualified in  

occupying the post of Chairperson since he had financial and  

other interest which would prejudicially affect his functions as  

Chairperson.  Mr. Ravindra Shrivastava, learned senior counsel  

appearing for the state of U.P. submitted that the appointment of  

the appellant was in violation of sub-section(5) of Section 85 of the

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Act and the 1999 Rules and the State is taking steps to conduct  

fresh selection after complying with the provisions of the Act and  

2008 Rules, which is in force.

9. We heard learned counsel appearing on either side.  The  

locus standi of the first respondent or the delay in approaching the  

writ court seeking a writ of quo warranto was not seriously  

questioned or urged before us.  The entire argument centered  

around the question whether there was due compliance of the  

provisions of sub-section (5) of Section 85 of the Act.  Section 85 is  

given for ready reference:

“SECTION 85: Constitution of Selection  Committee to select Member of the State  Commission :  (1) The State Government shall, for the purposes of  selecting the Members of the State Commission,  constitute a Selection Committee consisting of –

(a)  a person who has been a Judge of the High  Court… . Chairperson; (b)  the Chief Secretary of the concerned State…  

.Member; (c)  the Chairperson of the Authority or the  Chairperson of the Central Commission … … … …  .. Member: Provided that nothing contained in this section  

shall apply to the appointment of a person as the

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Chairperson who is or has been a Judge of the High  Court. (2) The State Government shall, within one month  from the date of occurrence of any vacancy by reason of  death, resignation or removal of the Chairperson or a  Member and six months before the superannuation or  end of tenure of the Chairperson or Member, make a  reference to the Selection Committee for filling up of the  vacancy. (3) The Selection Committee shall finalise the  selection of the Chairperson and Members within three  month from the date on which the reference is made to  it. (4)  The Selection Committee shall recommend a panel  of two names for every vacancy referred to it. (5) Before recommending any person for appointment  as the Chairperson or other Member of the State  Commission, the Selection Committee shall satisfy itself  that such person does not have any financial or other  interest which is likely to affect prejudicially his  functions as Chairperson or Member, as the case may  be. (6)   No appointment of Chairperson or other Member  shall be invalid merely by reason of any vacancy in the  Selection Committee.”

10. The Electricity Act, 2003 is an Act enacted to consolidate the  

laws relating to generation, transmission, distribution, trading  

and use of electricity and generally for taking measures conducive  

to development of electricity industry, promoting competition  

therein, protecting interest of consumers and supply of electricity  

to all areas, rationalization of electricity tariff etc.   The Act also

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envisages the constitution of Central Electricity Authority,  

Regulatory Commission and establishment of Appellate Tribunal  

etc.  The State Electricity Regulatory Commission (for short ‘the  

State Commission’) is constituted under sub-section (1) of Section  

82 of the Act.  Sub-section (5) of Section 85 of the Act states that  

the Chairperson and Members of the State Commission shall be  

appointed by the State Government on the recommendation of a  

Selection Committee as per Section 85 of the Act.  Section 84 of  

the Act deals with the qualifications for appointment of  

Chairperson and Members of the State Commission which reads  

as follows:

“84. Qualifications for appointment of  Chairperson and Members of State Commission: (1)    The Chairperson and the Members of the State  Commission shall be persons of ability, integrity and  standing who have adequate knowledge of, and have  shown capacity in, dealing with problems relating to  engineering, finance, commerce, economics, law or  management. (2)     Notwithstanding anything contained in sub- section (1), the State Government may appoint any  person as the Chairperson from amongst persons who  is, or has been, a Judge of a High Court.”

11. The Chairperson, therefore, shall be a person of ability,

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integrity and standing and has adequate knowledge of, and has  

shown capacity in, dealing with problems relating to engineering,  

finance, commerce, economics, law or management.  The  

Selection Committee, as per Section 85, has to recommend a  

panel of two names for filling up the post of the Chairperson, but  

before recommending any person for appointment as the  

Chairperson, the Selection Committee has to satisfy itself that  

such person does have any financial or other interest which is  

likely to affect prejudicially his functions as Chairperson.  The  

State Government under Section 82(5) of the Act has to appoint  

the Chairperson on the recommendation of the Selection  

Committee.

12. We have gone through the minutes of the Selection  

Committee meeting dated 26.12.2008 and also the bio-data of the  

applicants for the post of Chairperson of the State Commission.  

Reference to the bio data of some of the candidates is useful,  

hence given below:

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Bio-data of applicants for the post of Chairperson U.P.E.R.C.

S.No.  and  name

Date of  Birth

Educational Qualification Retd.  From

Post Holding Experience Academic Professional specialization

1. S.K.  Shukla

01-01- 1950

BE (Mech.  Engg.

ME (Prod.  Engg.)

Director  (Technical)  Tehri Hydro  Devpt.  Corporation

33 years in  T.H.D.C.

3. Anil  Kumar  Asthana

29-07- 1952

B. Tech.  (Electrical)  

M.Tech  (Power App.  & Systems)

Chief Engr.  System  planning &  Project  appraisal CEA

33 Years in CEA  Transmission  and grid  opration

18. U.C.  Misra

31-07- 1949

B.E.  (Electri- cal Engg.)

Chairman  Bhakra Beas  Management  Board

4.5 Years  UPSEB, 15  Years NHPC, 16  Years PGCIL, 2  Years Chairman  BBMB

20.  Rajesh  Awasthi

19-01- 1950

Civil &  Municipal  Engg.  Graduate

Joint President  J.P. Power  Ventures

3 Years Central  Designs  Organization  Government of  Maharashtra,  7.5 Years  Mining & Allied  Machinery Co.  Ltd., W.B., 24.5  Years NTPC,  Joint President  J.P. Power  Ventures Ltd.  from 17.11.08  

21. S.M.  Agarwal

15-06- 1949

B.Sc.  (Elec.  Engg.)

M.Sc. (Elec  Engg.)

D.G.  (Trg.&HRD) UPPCL

36 Years UPSEB  / UPPCL

24. Dr.  Man  Mohan

01-08- 1946

B.E.  (Elect.)

M.E.  (Power  System)

Ph.D.  (Commercial  Availability  Index of  Power Plant)

Member  (Technical)  Gujarat ERC

29.5 Years in  CEA, 3 Years  NTPC, 2 Years  as Engr, Grade- I, Govt. of Libya,  4 Years in  Gujrat ERC.

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13. Illustrative bio-data of some of the candidates would indicate  

their academic qualifications, professional experience including  

the area of specialization.  Appellant’s qualification, experience  

and the fact that he was the Joint President of J.P. Power  

Ventures Ltd., was also indicated.  The Selection Committee has  

put an asterisk against his name and then left it to the  

government to ensure the compliance of sub-section (5) of Section  

85 of the Act.   

14. We will examine the meaning and content of Section 85(5)  

and whether it calls for any interpretation.  Lord Brougham in  

Crowford v. Spooner (1846) 6 Moore PC 1 has stated that “one  

has to take the words as the Legislature has given them, and to  

take the meaning which the words given naturally imply, unless  

where the construction of those words is, either by the preamble  

or by the context of the words in question controlled or altered”.  

Viscount Haldane in Attorney General v.  Milne (1914-15) All  

England Report 1061 has held that the language used “has a  

natural meaning, we cannot depart from that meaning unless,

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reading the statute as a whole, the context directs us to do so”.  

Viscount Simon, L.C. in Nokes v. Dancaster Amalgamated  

Collieries Ltd. (1940) 3 All England Report 549 has held “the  

golden rule is that the words of a statute must prima facie be  

given their ordinary meaning”.  Above principles have been  

repeated umpteen times by the House of Lords and this Court and  

hence, calls for no further elucidation.   

15. We are clear in our mind about the language used in sub-

section (5) of Section 85 of the Act, which calls for no  

interpretation.  Words are crystal clear, unambiguous and when  

read literally, we have no doubt that the powers conferred under  

sub-section (5) of Section 85 of the Act has to be exercised by the  

Selection Committee and the Committee alone and not by the  

Government.  Some of the words used in sub-section (5) of Section  

85 are of considerable importance, hence, we give some emphasis  

to those words such as “before     recommending  ”  ,   “the     Selection    

Committee     shall     satisfy  ”   and “itself  ”  .   The Legislature has  

emphasized the fact that ‘the Selection Committee itself has to

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satisfy’, meaning thereby, it is not the satisfaction of the  

government what is envisaged in sub-section (5) of Section 85 of  

the Act, but the satisfaction of the Selection Committee.  The  

question as to whether the persons who have been named in the  

panel have got any financial or other interest which is likely to  

affect prejudicially his functions as Chairperson, is a matter which  

depends upon the satisfaction of the Selection Committee and that  

satisfaction has to be arrived at before recommending any person  

for appointment as Chairperson to the State Government.  The  

government could exercise its powers only after getting the  

recommendations of the Selection Committee after due  

compliance of sub-section (5) of Section 85 of the Act.  The  

Selection Committee has given a complete go-by to that provision  

and entrusted that function to the State Government which is  

legally impermissible.  The State Government also, without  

application of mind and overlooking that statutory provision,  

appointed the appellant.

16. A writ of quo warranto will lie when the appointment is made

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contrary to the statutory provisions.  This Court in Mor Modern  

Coop. Transport Coop. Transport Society Ltd. v. Govt. of  

Haryana (2002) 6 SCC 269 held that a writ of quo warranto can  

be issued when appointment is contrary to the statutory  

provisions.  In B. Srinivasa Reddy (supra), this Court has  

reiterated the legal position that the jurisdiction of the High Court  

to issue a writ of quo warranto is limited to one which can only be  

issued if the appointment is contrary to the statutory rules.  The  

said position has been reiterated by this Court in Hari Bans Lal  

(supra) wherein this Court has held that for the issuance of writ of  

quo warranto, the High Court has to satisfy that the appointment  

is contrary to the statutory rules.   

17. We are of the view that the principle laid down by this Court  

in the above-mentioned judgment squarely applies to the facts of  

this case.  The appointment of the first respondent, in our  

considered view, is in clear violation of sub-section (5) of Section  

85 of the Act.  Consequently, he has no authority to hold the post  

of Chairperson of the U.P. State Electricity Regulatory

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Commission.   

18. We express no opinion with regard to the contentions raised  

by the first respondent that the appellant had links with J.P.  

Power Ventures Ltd.  According to the first respondent, the  

appellant had approved the higher tariff right to favour M/s J.P.  

Power Ventures Ltd., vide his order dated 27.8.2010.  We have  

already found that the question as to whether, being Vice  

President of the J.P. Power, the appellant had any financial or  

other interest which would prejudicially affect his function as  

chairperson was an issue which the Selection Committee ought to  

have considered.  We may point out that when the Selection  

Committee was constituted, 1999 Rules were in force and the  

present 2008 Rules came into force only on 1.1.2009.  By virtue of  

Section 85 of the Act, the then existing Rules 1999 were also  

safeguarded.  Section 3 of the 1999 Rules deals with the selection  

process for the post of Chairperson, which is almost pari-materia  

to the 2008 Rules.  Sub-section (3) of Rule 3 is of some relevance,  

hence we extract the same:

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“3  (3) The convener shall sand requisition for the  selection of any member for the aforesaid posts to  different departments of State Governments and Central  Govt., Public and Private Undertakings, Industrial  Enterprises and to Organisation engaged in generation,  distribution and supply of electricity, financial  institutions, educational institutions and  to the High  Court and shall also invite applications directly from  eligible persons by notifying the vacancy in the  Government Gazette.  The eligible persons may send their  applications directly or through an officer or authority  under whom he is for the time being working.”

19. The above-mentioned statutory requirements were also not  

followed in the instant case, over and above, the non-compliance  

of sub-section (5) of Section 85 of the Act.   

20. We fully agree with the learned senior counsel for the  

appellant that suitability of a candidate for appointment does not  

fall within the realm of writ of quo warranto and there cannot be  

any quarrel with that legal proposition.   Learned senior counsel  

also submitted that, assuming that the Selection Committee had  

not discharged its functions under sub-section (5) of Section 85 of  

the Act, it was only an omission which could be cured by giving a  

direction to the Selection Committee to comply with the

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requirement of sub-section (5) of Section 85 of the Act.  Learned  

senior counsel submitted that since it is a curable irregularity, a  

writ of quo warranto be not issued since issuing of writ of quo  

warranto is within the discretion of the Court.  Learned senior  

counsel made reference to the judgment of Court in R. v. Speyer  

(1916) 1 K.B. 595.

21. We are of the view that non-compliance of sub-section (5) of  

Section 85 of the Act is not a procedural violation, as it affects the  

very substratum of the appointment, being a mandatory  

requirement to be complied with, by the Selection Committee  

before recommending a person for the post of Chairperson.  We  

are of the view that non-compliance of sub-section (5) of Section  

85 of the Act will vitiate the entire selection process since it is  

intended to be followed before making the recommendation to the  

State Government.  Non-compliance of mandatory requirements  

results in nullification of the process of selection unless it is  

shown that performance of that requirement was impossible or it  

could be statutorily waived.  The expression “before

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recommending any person” clearly indicates that it is a mandatory  

requirement to be followed by the Selection Committee before  

recommending the name of any person for the post of  

Chairperson.  The expression “before”  clearly indicates the  

intention of the Legislature.  The meaning of the expression  

“before”  came for consideration before this Court in State Bank  

of Travancore v. Mohammad (1981) 4 SCC 82 where the words  

“any debt due at and before the commencement of this Act to any  

banking company”  as occurring in section 4(1) of the Kerala  

Agriculturist Debt Relief Act, 1970, were construed by the  

Supreme Court to mean “any debt due at and before the  

commencement of this Act”.  We, therefore, find it difficult to  

accept the contention of learned senior counsel that this, being a  

procedural provision and non-compliance of sub-section (5) of  

Section 85 of the Act, is a defect curable by sending the  

recommendation back to the Selection Committee for compliance  

of sub-section (5) of Section 85 of the Act.   

22. We are, therefore, in agreement with the High Court that the

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appointment of the appellant was in clear violation of sub-section  

(5) of Section 85 of the Act and, consequently, he has no authority  

to hold the post of the Chairperson of the Commission and the  

High Court has rightly held so.  This appeal, therefore, lacks  

merits and the same is dismissed with no order as to costs.

       ………………………….........J. (K.S. Radhakrishnan)

…………………………………J.  (Dipak Misra)

New Delhi, October 19, 2012

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     7600               2012   (Arising out of SLP (C) No. 1673 of 2012)

Rajesh Awasthi       ….. Appellant

Versus

Nand Lal Jaiswal and others       .…Respondents  

J     U     D     G     M     E     N     T      

Dipak      Misra,     J   

I have my respectful concurrence with the conclusion and  

the views expressed by my learned Brother Radhakrishnan, J.  

However, regard being had to the importance of the matter, I  

propose to record my views in addition.

2. As is evincible from the factual exposition, a writ of quo  

warranto has been issued by the High Court of Allahabad,  

Bench at Lucknow declaring that the appellant is not entitled

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to continue as the Chairperson of U.P. State Electricity  

Regulatory Commission (for short ‘the State Commission’) on  

the foundation that there had been total non-compliance of the  

statutory provision enshrined under sub-section (5) of Section  

85 of the Electricity Act, 2003 (for brevity ‘the Act’).   

3. As the facts have been stated in detail by my learned  

Brother, it is not necessary to repeat the same.  Suffice it to  

state that the pleas of locus standi and delay and laches have  

not been accepted and a finding has been returned by the High  

Court that the selection of the appellant was in flagrant  

violation of the provisions of the Act and, therefore, his  

continuance in law is impermissible.

4. Before I proceed to deal with the justifiability of the order  

passed by the High Court, it is thought apposite to refer to  

certain authorities that fundamentally deal with the concept of  

writ of quo warranto.  In B.R. Kapur v. State of Tamil Nadu  

and another1, in the concurring opinion Brijesh Kumar,J.,  

while dealing with the concept of writ of quo warranto, has  1  AIR 2001 SC 3435

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referred to a passage from Words and Phrases Permanent  

Edition, Volume 35, at page 647, which is reproduced below: -

“The writ of “quo warranto”  is not a substitute for  mandamus or injunction nor for     an     appeal   or     writ     of    error, and is not to be used to prevent an improper  exercise of power lawfully possessed, and its purpose  is solely to prevent an officer or corporation or  persons purporting to act as such from usurping a  power which they do not have.  State ex inf. Mc.  Kittrick v. Murphy, 148 SW 2d 527, 529, 530, 347  Mo. 484.

(emphasis supplied)

Information in nature of “quo     warranto  ”  does  not command performance of official functions by  any officer to whom it may run, since it is not  directed to officer as such, but     to     person     holding    office     or     exercising     franchise,     and     not     for     purpose     of    dictating     or     prescribing     official     duties,     but     only     to    ascertain     whether     he     is     rightfully     entitled     to     exercise    functions     claimed.    State Ex. Inf. Walsh v.  Thactcher, 102 SW 2d 937, 938, 340 Mo. 865.”

(Emphasis supplied)

5. In The University of Mysore v. C.D. Govinda Rao and  

another2, while dealing with the nature of the writ of quo  

warranto, Gajendragadkar,J. has stated thus: -

2  AIR 1965 SC 491

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“Broadly stated, the quo warranto proceeding affords  a judicial enquiry in which any person holding an  independent substantive public office, or franchise,  or liberty, is called upon to show by what right he  holds the said office, franchise or liberty; if the  inquiry leads to the finding that the holder of the  office has no valid title to it, the issue of the writ of  quo warranto ousts him from that office. In other  words, the procedure of quo warranto confers  jurisdiction and authority on the judiciary to control  executive action in the matter of making  appointments to public offices against the relevant  statutory provisions; it also protects a citizen from  being deprived of public office to which he may have  a right. It would thus be seen that if these  proceedings are adopted subject to the conditions  recognised in that behalf, they tend to protect the  public from usurpers of public office; in some cases,  persons not entitled to public office may be allowed  to occupy them and to continue to hold them as a  result of the connivance of the executive or with its  active help, and in such cases, if the jurisdiction of  the courts to issue writ of quo warranto is properly  invoked, the usurper can be ousted and the person  entitled to the post allowed to occupy it. It is thus  clear that before a citizen can claim a writ of quo  warranto, he must satisfy the court, inter alia, that  the office in question is a public office and is held by  usurper without legal authority, and that necessarily  leads to the enquiry as to whether the appointment  of the said alleged usurper has been made in  accordance with law or not.”

6. From the aforesaid pronouncements it is graphically clear  

that a citizen can claim a writ of quo warranto and he stands  

in the position of a relater.  He need not have any special

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interest or personal interest.  The real test is to see whether  

the person holding the office is authorised to hold the same as  

per law.  Delay and laches do not constitute any impediment to  

deal with the lis on merits and it has been so stated in Dr.  

Kashinath G. Jalmi and another v. The Speaker and  

others3.

7. In High Court of Gujarat v. Gujarat Kishan Mazdoor  

Panchayat4 it has been laid down by this Court that a writ of  

quo warranto can be issued when there is violation of statutory  

provisions/rules.  The said principle has been reiterated in  

Retd. Armed Forces Medical Association and others v.  

Union of India and others5.

8. In the case of Centre for PIL and another v. Union of  

India and another6 a three-Judge Bench, after referring to  

the decision in R.K. Jain v. Union of India7, has opined thus:  

-

3  AIR 1993 SC 1873 4  (2003) 4 SCC 712 5  (2006) 11 SCC 731 (I) 6  (2011) 4 SCC 1 7  (1993) 4 SCC 119

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“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 or whether the  procedure adopted was fair, just and reasonable. We  reiterate that the Government is not accountable to  the courts for the choice made but the Government  is accountable to the courts in respect of the  lawfulness/legality of its decisions when impugned  under the judicial review jurisdiction.”

It is also worth noting that in the said case a view has been  

expressed that the judicial determination can be confined to  

the integrity of the decision making process in terms of the  

statutory provisions.

9. Regard being had to the aforesaid conception of quo  

warranto I may proceed to scrutinize the statutory provisions.  

Section 84 of the Act deals with qualifications for appointment  

of Chairperson and Members of State Commission.  Section 85  

provides for constitution of Selection Committee to select  

Members of the State Commission.  Sub-sections (4) and (5) of  

Section 85 which are relevant for the present purpose read as

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follows: -

“(4) The Selection Committee shall recommend a  panel of two names for every vacancy referred to it.

(5) Before recommending any person for  appointment as the Chairperson or other Member of  the State Commission, the Selection Committee shall  satisfy itself that such person does not have any  financial or other interest which is likely to affect  prejudicially his functions as such Chairperson or  Member, as the case may be.”

10. On a perusal of the report of the Selection Committee it is  

manifest that the Committee has not recorded its satisfaction  

with regard to ingredients contained in Section 85(5) of the Act  

and left it to the total discretion of the State Government.

11. On a scanning of the anatomy of Section 85(5) it is limpid  

that the Selection Committee before recommending any person  

for appointment as a Chairperson or a Member of the State  

Commission shall satisfy itself that the person does not have  

any financial or other interest which is likely to affect  

prejudicially his functions as such Chairperson or Member, as  

the case may be.  As the proceedings of the Selection

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Committee would reveal, it had not recorded its satisfaction  

prior to recommending the names of the two candidates.  It is  

vivid that the Selection Committee abandoned its function and  

simply sent the file to the State Government.  It has been  

argued with vehemence by Mr. Nageswara Rao, learned senior  

counsel for the appellant that when two names were chosen  

from amongst certain persons it has to be inferred that there  

was recommendation after due satisfaction as per statutory  

requirement.   

12. On a plain reading of the provision it is clear as crystal  

that the Selection Committee is obliged in law to satisfy itself  

with regard to various aspects as has been stipulated under  

sub-section (5) of Section 85 of the Act.  It is perceptible that  

the said exercise has not been undertaken.  It is worthy to note  

that the Act has a purpose.  It has been enacted to consolidate  

the laws relating to generation, transmission, distribution,  

trading and use of electricity and generally for taking measures  

conducive to development of electricity industry, promoting  

competition therein, protecting interest of consumers and

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supply of electricity to all areas, rationalization of electricity  

tariff, ensuring transparent policies regarding subsidies,  

promotion of efficient and environmentally benign policies,  

constitution of Central Electricity Authority, Regulatory  

Commissions and establishment of Appellate Tribunal and for  

matters connected therewith or incidental thereto.  Ergo, the  

provisions engrafted in the Act have their sacrosanctity.   

13. Presently, it is requisite to survey some of the statutory  

provisions.  Section 82 of the Act provides for constitution of  

the State Commission.  Section 2(64) defines the State  

Commission.  It is as follows: -

“(64) “State Commission” means the State Electricity  Regulatory Commission constituted under sub- section (1) of section 82 and includes a Joint  Commission constituted under sub-section (1) of  section 83;”

Section 86 deals with the functions of the State Commission.  

Keeping in view the functions attributed to the State  

Commission by the legislature I think it condign to reproduce  

the said provision in entirety: -

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“86. Functions of State Commission. –  (1) The  State Commission shall discharge the following  functions, namely: -

(a) determine the tariff for generation, supply,  transmission and wheeling of electricity,  wholesale, bulk or retail, as the case may be,  within the State:

Provided that where open access has been  permitted to a category of consumers under  section 42, the State Commission shall  determine only the wheeling charges and  surcharge thereon, if any, for the said category  of consumers;

(b) regulate electricity purchase and procurement  process of distribution licensees including the  price at which electricity shall be procured from  the generating companies or licensees or from  other sources through agreements for purchase  of power for distribution and supply within the  State;

(c) facilitate intra-State transmission and wheeling  of electricity;

(d) issue licences to persons seeking to act as  transmission licensees, distribution licensees  and electricity traders with respect to their  operations within the State;

(e) promote cogeneration and generation of  electricity from renewable sources of energy by  providing suitable measures for connectivity  with the grid and sale of electricity to any  person, and also specify for purchase of  electricity from such sources, a percentage of  the total consumption of electricity in the area

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of a distribution licensee;

(f) adjudicate upon the disputes between the  licensees and generating companies and to  refer any dispute for arbitration;

(g) levy fee for the purposes of this Act;

(h) specify State Grid Code consistent with the  Grid Code specified under clause (h) of sub- section (1) of section 79;

(i) specify or enforce standards with respect to  quality, continuity and reliability of service by  licensees;

(j) fix the trading margin in the intra-State trading  of electricity, if considered, necessary;

(k) discharge such other functions as may be  assigned to it under this Act.

(2) The State Commission shall advise the State  Government on all or any of the following matters,  namely: -

(i) promotion of competition, efficiency and  economy in activities of the electricity industry;

(ii) promotion of investment in electricity industry;

(iii) reorganization and restructuring of electricity  industry in the State;

(iv) matters concerning generation, transmission,  distribution and trading of electricity or any  other matter referred to the State Commission  by that Government;

(3) The State Commission shall ensure

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transparency while exercising its powers and  discharging its functions.

(4) In discharge of its functions, the State  Commission shall be guided by the National  Electricity Policy, National Electricity Plan and Tariff  Policy published under section 3.”

14. On an x-ray of the Preamble of the Act and the important  

functions ascribed to the State Commission I have no scintilla  

of doubt that the selection of Chairperson or a member is  

extremely important, more so, when there is a statutory  

prescription about the manner in which the Selection  

Committee is required to act.  I may state here that though the  

language is plain, unambiguous, clear and leads to a singular  

construction, yet I think it apt to reproduce a passage from  

Utkal Contractors Joinery Pvt. Ltd. and others etc. v.  

State of Orissa and others8 wherein Chinnappa Reddy, J.  

has observed thus: -

“A statute is best understood if we know the reason  for it.  The reason for a statute is the safest guide to  its interpretation.  The words of a statute take their  colour from the reason for it.  How do we discover  the reason for a statute?  There are external and  

8  AIR 1987 SC 1454

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internal aids.  The external aids are Statement of  Objects and Reasons when the Bill is presented to  Parliament, the reports of Committees which  preceded the Bill and the reports of Parliamentary  Committees.  Occasional excursions into the debates  of Parliament are permitted.  Internal aids are the  preamble, the scheme and the provisions of the Act.  Having     discovered     the     reason     for     the     statute     and     so    having     set     the     sail     to     the     wind,     the     interpreter     may    proceed     ahead.      No     provision     in     the     statute     and     no    word     of     the     statute     may     be     construed     in     isolation.    Every     provision     and     every     word     must     be     looked     at    generally     before     any     provision     or     word     is     attempted    to     be     construed.      The     setting     and     the     pattern     are    important.”

(emphasis supplied)

15. In Atma Ram Mittal v. Ishwar Singh Punia9,  

Sabyasachi Mukherji, J. (as his Lordship then was)  

emphasizing on the intention of the legislature, stated thus: -

“Blackstone tells us that the fairest and most  rational method to interpret the will of the legislator  is by exploring his intentions at the time when the  law was made, by signs most natural and probable.  And these signs are either the words, the context,  the subject matter, the effects and consequence, or  the spirit and reason of the law.”

16. In the said case reference was made to the decision in  

9  (1988) 4 SCC 284

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Popatlal Shah v. State of Madras10 wherein it has been laid  

down that each word, phrase or sentence is to be construed in  

the light of purpose of the Act itself.  A reference was made to  

the observations of Lord Reid in Black-Clawson  

International Ltd. v. Papierwerke Waldhof-Aschaffenburg  

A G11 wherein the Law Lord has observed as under: -

“We often say that we are looking for the intention of  the Parliament, but this is not quite accurate.  We  are seeking the meaning of the words which  Parliament used.  We are seeking not what  Parliament meant but the true meaning of what they  said.”

17. In Sangeeta Singh v. Union of India and others12  

emphasis was laid on the language employed in the statute  

and in that context it has been opined as follows: -

“5. It is well-settled principle in law that the court  cannot read anything into a statutory provision or a  stipulated condition which is plain and  unambiguous.  A statute is an edict of the  legislature.  The language employed in a statute is  the determinative factor of legislative intent.  Similar  is the position for conditions stipulated in  advertisements.”

10  1953 SCR 677 : AIR 1953 SC 274 11  1975 AC 591 12  (2005) 7 SCC 484

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18. I have referred to the aforesaid pronouncements only to  

highlight that Section 85(5) of the Act has inherent inviolability  

and every word used therein has to be understood in the  

context regard being had to the legislative intendment.  There  

has to be concentrated focus on the purpose of legislation and  

the text of the language, for any deviation is likely to bring in  

hazardous results.

19. At this juncture I may profitably refer to Uttar Pradesh  

Power Corporation Limited v. National Thermal Power  

Corporation Limited and others13 wherein, after referring to  

the decision in W.B. Electricity Regulatory Commission v.  

CESC Ltd.14, this Court has stated thus: -

“12. Looking to the observations made by this Court  to the effect that the Central Commission constituted  under Section 3 of the Act is an expert body which  has been entrusted with the task of determination of  tariff and as determination of tariff involves highly  technical procedure requiring not only working  knowledge of law but also of engineering, finance,  commerce, economics and management, this Court  

13  (2011) 12 SCC 400 14  (2002) 8 SCC 715

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was firmly of the view that the issues with regard to  determination of tariff should be left to the said  expert body and ordinarily the High Court and even  this Court should not interfere with the  determination of tariff.”

20. Be it noted, emphasis has also been laid on functioning of  

regulatory bodies in ITC Limited v. State of Uttar Pradesh  

and others15.

21. I have referred to the aforesaid authorities singularly for  

the purpose that regulatory commission is an expert body and  

in such a situation the selection has to be absolutely in accord  

with the mandatory procedure as enshrined under Section 85  

of the Act.

22. In the present context, it has become necessitous to dwell  

upon the role of the Selection Committee.  Section 85(1) of the  

Act provides for constitution of Selection Committee to select  

Members of the State Commission.  The said Committee, as  

the composition would show, is a high powered committee,  

which has been authorised to adjudge all aspects.  I may  

hasten to add that I am not at all delving into the sphere of  15  (2011) 7 SCC 493

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suitability of a candidate or the eligibility, for in the case at  

hand the issue in singularity pertains to total non-compliance  

of the statutory command as envisaged under Section 85(5).   

23. It is seemly to state the aforementioned provision  

employs the term “recommendation”. While dealing with the  

concept of recommendation, a three-Judge Bench of this Court  

in A. Pandurangam Rao v. State of Andhra Pradesh and  

others16 has stated that the literal meaning of the word  

“recommend”  is quite simple and it means “suggest as fit for  

employment”.  In the present case the Selection Committee as  

per the provision was obliged to satisfy itself when the  

legislature has used the word “satisfied”.  It has mandated the  

Committee to perform an affirmative act.  There has to be  

recording of reasons indicating satisfaction, may be a  

reasonable one.  Absence of recording of satisfaction is  

contrary to the mandate/command of the law and that makes  

the decision sensitively susceptible.  It has to be borne in mind  

that in view of the power conferred on the State Commission,  

16  AIR 1975 SC 1922

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responsibility of selection has been conferred on a high  

powered Selection Committee.  The Selection Committee is  

legally obliged to record that it has been satisfied that the  

candidate does not have any financial or other interest which  

is likely to affect prejudicially his functions as Chairman or  

Member, as the case may be.  The said satisfaction has to be  

reached before recommending any person for appointment.  It  

would not be an exaggeration to state that the abdication of  

said power tantamounts to breach of Rule of Law because it  

not only gives a go by to the warrant of law but also creates a  

dent in the basic index of law.  Therefore, the selection is  

vitiated and it can never come within the realm of curability,  

for there has been statutory non-compliance from the very  

inception of selection.   

24. It is necessary to state here that in many an enactment  

the legislature has created regulatory bodies.  No one can be  

oblivious of the fact that in a global economy the trust on the  

regulators has been accentuated.  Credibility of governance to  

a great extent depends on the functioning of such regulatory

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bodies and, therefore, their selection has to be in total  

consonance with the statutory provisions.  The same inspires  

public confidence and helps in systematic growth of economy.  

Trust in such institutions helps in progress and distrust  

corrodes it like an incurable malignancy.  Progress is achieved  

when there is good governance and good governance depends  

on how law is implemented.  Keeping in view the objects and  

reasons and preamble of the Act and the functions of the  

Commission, it can be stated with certitude that no latitude  

can be given and laxity can have no allowance when there is  

total violation of the statutory provision pertaining to selection.  

It has been said long back “a society is well governed when the  

people who are in the helm of affairs obey the command of the  

law”.  But, in the case at hand the Selection Committee has  

failed to obey the mandate of the law as a consequence of  

which the appellant has been selected and, therefore, in the  

ultimate eventuate the selection becomes unsustainable.   

25. It is manifest in the selection of the appellant that there is  

absence of “intellectual objectivity”  in the decision making

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process.  It is to be kept in mind a constructive intellect brings  

in good rationale and reflects conscious exercise of conferred  

power.  A selection process of this nature has to reflect a  

combined effect of intellect and industry.  It is because when  

there is a combination of the two, the recommendations as  

used in the provision not only serves the purpose of a “lamp in  

the study”  but also as a “light house”  which is shining, clear  

and transparent.       

26. I emphasize on the decision making process because in  

such a case there is exercise of power of judicial review.  In  

Chief Constable of the North Wales Police v. Evans17, Lord  

Brightman observed thus: -

“....Judicial review, as the words imply, is not an  appeal from a decision, but a review of the manner  in which the decision was made....”

27. In view of the aforesaid analysis, I conclude that there  

has been total non-compliance of the statutory provision by the  

Selection Committee which makes the decision making process  

vulnerable warranting interference by the constitutional courts  

17  (1982) 1 W.L.R. 1155

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and, therefore, the High Court is justified in holding that the  

appointment is non est in law.

28. Consequently, the appeal, being sans substratum, stands  

dismissed without any order as to costs.

……………………………….J. [Dipak Misra]

New Delhi; October 19, 2012.