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A public interest lititation writ of quo warranto the Court only makes a public declaration that the person holding the public office is a usurper and not eligible to hold the post and after the declaration is made he ceases to hold the office but can not order for recovery of salary/honorarium = Central Electricity Supply Utility of Odisha ……Appellant Versus Dhobei Sahoo & Ors. …..Respondents = http://judis.nic.in/supremecourt/filename=40949

A public interest lititation writ of  quo  warranto  

the

               Court only makes a public declaration that the person holding

               the public office is a usurper and not eligible to  hold  the

               post and after the declaration is made he ceases to hold  the

               office but can not order for recovery of salary/honorrium  =

 

whereby the Division Bench has quashed the appointment

                 of the respondent No. 5 herein  and  further  directed  the

                 present appellant to recover the amount  paid  to  the  5th

                 respondent  towards  honorarium,  in  a   public   interest

                 litigation preferred by the 1st   respondent,  the  present

                 appeals, one by the Central Electricity Supply  Utility  of

                 Odisha (CESU) and the other by  the  affected  person  have

                 been preferred, by special leave. =

While

               exercising the power for issue of writ of  quo  warranto  

the

               Court only makes a public declaration that the person holding

               the public office is a usurper and not eligible to  hold  the

               post and after the declaration is made he ceases to hold  the

               office.  

Till the declaration is made, the incumbent  renders

               service and  when  he  has  rendered  service  he  cannot  be

               deprived of his  salary.   

Denial  of  pay  for  the  service

               rendered tantamounts to forced labour which is impermissible.

                

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  others  v.  Union   of   India   and

               others[17]: –

 

           “… if a person has contracted with another to perform  service

           and there is consideration for such  service  in  the  shape  of

           liquidation of debt or even remuneration he cannot be forced, by

           compulsion of law or otherwise,  to  continue  to  perform  such

           service, as that would be forced labour within the inhibition of

           Article 23.  

This Article strikes at every form of forced labour

           even if it has its origin in a contract voluntarily entered into

           by the person obligated  to  provide  labour  or  service  (vide

           Pollock v. Williams[18]).  

The reason is that it offends against

           human dignity to compel a person to provide labour or service to

           another if he does not wish to do  so,  even  though  it  be  in

           breach of the contract entered into by him.  

There should be  no

           serfdom or involuntary servitude  in  a  free  democratic  India

           which respects the dignity of the individual and  the  worth  of

           the human person.”

 

           43. In view of the aforesaid analysis  

we  are  of  the  resolute

               opinion that even while issuing a writ of quo warranto  there

               cannot be any direction  for  recovery  of  the  sum.  

 

The matter may be viewed from the point of view  of  the  5th

               respondent.  

True it is, his remaining in-charge of the  post

               of the CEO was called in question before the High Court in  a

               public interest litigation wherein a writ of quo warranto was

               issued.  

A judgment can be erroneous  but  when  there  is  a

               direction for recovery  of  the  honorarium,  it  indubitably

               creates a dent in the honour of a person.  

Honour  once  lost

               may be irredeemable or irresuscitable.  

Mr. Ramachandran  has

               number of times submitted  before  us  that  because  of  the

               humiliation faced, the 5th respondent decided not to continue

               in the post of the Chairman also.  

We have stated so  because

               we strongly feel that a cautious approach is requisite  while

               dealing with a writ of quo warranto.

45. Resultantly, the appeals are allowed  and  the  judgment  and

               order passed by the High Court is set aside.   In  the  facts

               and circumstances of the case there shall be no order  as  to

               costs.

 

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9872 OF 2013
(Arising out of Special Leave Petition (C) No. 16112 of 2012)
Central Electricity Supply
Utility of Odisha ……Appellant
Versus
Dhobei Sahoo & Ors. …..Respondents
WITH

CIVIL APPEAL NO. 9871 OF 2013
(Arising out of Special Leave Petition (C) No. 15870 of 2012)
Bijaya Chandra Jena …Appellant
Versus
Dhobei Sahoo and others … Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted in both the special leave petitions.

2. Assailing the judgment and order dated 28.3.2012 passed by
the High Court of Orissa, Cuttack in WP(C) No. 23268 of
2011 whereby the Division Bench has quashed the appointment
of the respondent No. 5 herein and further directed the
present appellant to recover the amount paid to the 5th
respondent towards honorarium, in a public interest
litigation preferred by the 1st respondent, the present
appeals, one by the Central Electricity Supply Utility of
Odisha (CESU) and the other by the affected person have
been preferred, by special leave. The factual matrix and
the bedrock of challenge being similar we shall state the
facts which are requisite to understand the controversy.
However, the description of the 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 Corporation
of Orissa (GRIDCO) to Distributions Companies) Rules, 1998,
the distributions and retail Supply functions of GRIDCO
were vested with in four newly constituted Distribution
Companies out of which one was Central Electricity Supply
Company of Orissa Limited (CESCO) which was given the
responsibility of Distributions Undertakings of the Central
Zone and to carry out them, granted a license for
distribution of electricity by the Commission. Be it
noted, 51% Shareholding and Management of CESCO vested in a
private Company, namely, AES Orissa Distribution Pvt. Ltd.
(AESODPL) and the balance 49% was held by GRIDCO. After
coming into force of the Act on 10.06.2003 the said
arrangement continued as there was nothing inconsistent
with the new legislation. On 26.2.2005 as management of
AESODPL abandoned the management of CESCO, the license
granted in favour of CESCO was revoked by the Commission
under Section 19 of the Act w.e.f. 1.04.2005. On
2.04.2005 an Administrator was appointed by the Commission
for management and control of CESCO.

4. As the factual matrix would further unfurl on 8.9.2006 the
Commission initiated the process for sale of utility of
CESCO under Section 20 of the Act. However, as the Utility
could not be sold, by order dated 8.9.2006 the Commission
created a new Utility, namely, CESU and formulated Central
Electricity Supply Utility of Orissa (Operation and
Management) Scheme, 2006 (hereinafter referred to as “the
Scheme”) for Operation and Management of CESU. On
5.5.2007, the Scheme was amended by the Commission. Clause
5 of the Scheme defined the powers and functions of the
Chairman, CEO (CEO), Chief Finance Officer (CFO) and Chief
Operating Officer (COO). On 31.10 2007, one S.K. Dasgupta
was appointed as CEO of CESU with a financial package of
Rs. 22 lakhs per annum. On 31.3.2010, respondent No. 5,
who had earlier served as Chairman and Managing Director of
GRIDCO as well as Member of the Commission from 2001 to
2006 and had forty-five years of experience in the
electricity sector was nominated as member as well as
Chairman of the Management Board and of CESU without any
remuneration. The Chairman was only entitled to sitting
fee of Rs. 2000/- per meeting.

5. As the chronology of events would depict, Mr. S. K.
Dasgupta resigned from the post of CEO on 8.8.2010 and on
10.8.2010 he was relieved. Keeping in view the smooth
functioning of CESU, the Commission decided to entrust the
function, duties and responsibilities of CEO to the 5th
respondent with immediate effect until further orders or
until alternative arrangements were made by the Commission.
It was mentioned in the order dated 10.8.2010 that the 5th
respondent 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 retired persons and deadwoods at
the cost of public money; that the Orissa State Electricity
Board vide Office Order dated 30.8.1961 had adopted the
service conditions of Government servants and GRIDCO vide
its Office Order dated 25.4.1996 had adopted the
regulations relating to service and allied matters for the
employees of the Board transferred to GRIDCO; that asking
the Chairman of the Board of Management of CESU to remain
in-charge as CEO was contrary to the Scheme as amended upto
2010 vide notification dated 12.11.2010; that the
appointment of the 5th respondent was contrary to
Regulation 13(1)(2)(3) of GRIDCO Officers’ Service
Regulations which provide for appointment to grades above E-
9 shall be on a contract basis initially for a period of
three years and renewable thereafter for such period(s) as
the Board for the Committee of the Board may prescribe
until the Officer attains the age of superannuation as
provided in these Regulations; and that the third
respondent was appointed contrary to law and, therefore,
his appointment should be quashed and the salary drawn by
him should be recovered.

7. The aforesaid contentions were resisted by the Commission
contending, inter alia, that the Commission had not
appointed the 5th respondent as CEO of CESU but had
assigned the functions, duties and responsibilities till an
alternative arrangement was made by the Commission and the
said arrangement was purely ad hoc in nature; that CESCO
Officers’ Service Regulations had been adopted by CESU but
not that of GRIDCO Officers’ Service Regulations; that the
5th respondent was the Chairman of CESU in view of his
bright engineering career and vast experience in the
distribution sector and there has been no violation of any
of the provisions of Orissa Service Code and Pension Rules;
that the said temporary arrangement had been made by the
Commission only for the interest of utility and larger
interest of the public and consumers and CESU; that the
Commission had given the 5th respondent a consolidated
honorarium of Rs.70,000/- per month whereas his predecessor
CEO was getting a total salary of Rs.1,67,284/-; and that
the Commission asking the 5th respondent to remain in-
charge as CEO was not violative of any rules or
regulations.

8. A counter affidavit was filed by the CESU and the 5th
respondent contending that a Public Interest Litigation of
the present nature was not maintainable and in any case the
Commission’s handing over the charge of as CEO to the 5th
respondent would not be found fault with.

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
enjoyed by the CEO like telephone, vehicle, travelling
allowances excluding the house rent and opined ascribing
certain reasons that the said appointment was illegal and,
accordingly, quashed the same. The High Court further
directed for recovery of the amount from the 5th
respondent. It is also apt to note here that the High
Court directed that the Commission shall immediately take
steps to fill up the post of CEO within a period of two
months from the date of receipt of the copy of the judgment
and the Chairman shall not be allowed to function till
filling up of the post of CEO and some other responsible
officer of CESU shall act as in-charge CEO.

10. At this stage, we think it apposite to summarise the
principal reasons which have been ascribed by the High
Court while setting aside the order whereby the 5th
respondent was asked to function as CEO and given the
consolidated honorarium:

i) The Commission has acted illegally and arbitrarily in
appointing the Chairman as the CEO, who is also one of the
Members of the Board Management of CESU.

ii) On reading of all the relevant clauses it is very clear
that the Chairman of the CESU is required to supervise the
smooth functioning of the CESU and CEO is to act under the
control of the Chairman. That being the position and the
opp. party no. 3, who is a retired officer and the Chairman
of CESU could not have been appointed as CEO.

iii) If the post of CEO in the organization falls vacant in view
of the urgency of either temporary appointment can be made
or in charge arrangement can be made for temporary period,
but the same power could not have been conferred upon the
Chairman as the Chairman is required to supervise and
control the function of officers of the Board as well as in
the Organization and, therefore, his appointment as CEO by
way of an alternative arrangement is contrary to Clause 5
of the Scheme.

iv) It is not legally correct on the part of the Commission to
appoint the Chairman as the CEO, which is contrary to the
service regulations and the 5th respondent should not have
been allowed to function as the CEO having regard to the
nature of powers and functions required to be discharged by
the Chairman, for CEO is under the control and supervision
of the Chairman. As the 5th respondent cannot supervise his
own work there is violation of principles of natural
justice as he cannot find out his own defects and discharge
his responsibilities.

v) The Commission has acted in violation of service
regulations and hence, it is case of abuse of power. That
apart, propriety demanded that the 5th respondent should
not have entrusted with the additional charge of CEO.

vi) The appointment being contrary to the guidelines framed by
CESU, the 5th respondent becomes an usurper to the public
office and hence, his appointment deserved to be quashed.
11. We have heard Mr. P.P. Rao, learned senior counsel for
Central Electricity Supply Utility of Odisha, Mr. M.G.
Ramachandran, learned counsel for Bijay Chandra Jena,
Respondent No. 1 in person assisted by Mr. Aparajit Ninawe,
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 entertained the PIL in the garb of a writ of quo
warranto but further proceeded to direct recovery of the
amount paid to the Chairman of the Commission while
functioning as a CEO which is beyond the scope of a PIL.

b) A writ of quo warranto cannot be issued unless there is
violation of statutory provisions and in the case at
hand, in the absence of any statutory provision, and
regard being had to the amendment of the Scheme made on
12.11.2010 wherein sub-clause (ix) has been incorporated
in clause 4 enabling the Commission to allow the
Chairman to discharge the functions and responsibilities
of both the posts, the arrangement could not have been
unsettled by the High Court.

c) The High Court has failed to appreciate that the
appointing authority has the inherent power to make an
interim arrangement when the post falls vacant pending
selection and appointment of another eligible and
suitable candidate to the post and in similar analogy
giving additional charge of the post to a superior
officer is not contrary to the public policy or against
the interest of the institution.

d) The High Court has fundamentally misconstrued the
provisions under the Act, Regulations and the Scheme and
has erroneously opined that the Chairman, who was
holding the additional charge, had usurped the position
despite being eligible, qualified and experienced.

e) The conclusion that the Chairman, who was age barred for
holding the post of CEO, should have been treated to be
disqualified to hold the post, is both fallacious on
facts and erroneous in law. There is no statutory
provision prescribing the age. That apart, the policy
decision and the advertisement do not curtail the
power/authority of the Commission to make any
appropriate temporary arrangement, more so, when it is
so permissible under the Scheme.

13. Mr. Ramachandran, learned counsel, while reiterating the
submissions made by Mr. P.P. Rao, further submitted that
when the Chairman had performed the duties of the CEO,
there was no justification to direct for recovery of the
sum, for it is unknown to service jurisprudence and in
certain circumstances amounts to beggary which is enshrined
under Article 23 of the Constitution of India. The learned
counsel would contend that Mr. Jena who has earned his
reputation in his own field, despite the said order, had
intimated CESU that he would not function and he is not
functioning in praesenti.

14. Mr. Sahoo, appering in person and Mr. Aparajit Ninawe,
learned counsel, who assisted him, submitted that the
verdict of the High Court is absolutely flawless and
relying on 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 certain authorities that throw light on the
duty of the Court while dealing with a writ of quo
warranto. In The University of Mysore v. C.D. Govinda Rao
and another[1], Gajendrakadkar, J. (as his Lordship then
was) speaking for the Constitution Bench, has stated thus:

“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 recognized 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 entitle to the post allowed
to occupy it. It is thus clear that before a citizen can claim
a writ of quo warranto, he must satisfy the court, inter alia,
that the office in question is a public office and is held by
usurper without legal authority, and that necessarily leads to
the enquiry as to whether the appointment of the said alleged
usurper has been made in accordance with law or not.”

[Emphasis supplied]

16. In High Court of Gujarat and another v. Gujarat Kishan
Mazdoor Panchayat and others[2] S.B. Sinha, J., in his
concurring opinion, while adverting to the concept of
exercise of jurisdiction by the High Court in relation to
a writ of quo warranto, has expressed thus: –

“22. The High Court in exercise of its writ jurisdiction in a
matter of this nature is required to determine at the outset as
to whether a case has been made out for issuance of a writ of
certiorari or a write of quo warranto. The jurisdiction of the
High Court to issue a writ of quo warranto is a limited one.
While issuing such a writ, the Court merely makes a public
declaration but will not consider the respective impact of the
candidates or other factors which may be relevant for issuance
of a writ of certiorari. (See R.K. Jain v. Union of India[3],
SCC para 74)

23. A writ of quo warranto can only be issued when the
appointment is contrary to the statutory rules. (See Mor Modern
Coop. Transport Society Ltd. v. Financial Commr. & Secy. To
Govt. of Haryana[4].)

[Underlining is ours]

17. In Centre for PIL and Another v. Union of India and
Another[5], 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 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 decision when impugned under the
judicial review jurisdiction.”

18. From the aforesaid exposition of law it is clear as noon
day that the jurisdiction of the High Court while issuing a
writ of quo warranto is a limited one and can only be
issued when the person holding the public office lacks the
eligibility criteria or when the appointment is contrary to
the statutory rules. That apart, the concept of locus
standi which is strictly applicable to service
jurisprudence for the purpose of canvassing the legality or
correctness of the action should not be allowed to have any
entry, for such allowance is likely to exceed the limits of
quo warranto which is impermissible. The basic purpose of
a writ of quo warranto is to confer jurisdiction on the
constitutional courts to see that a public office is not
held by usurper without any legal authority. While dealing
with the writ of quo warranto another aspect has to be kept
in view. Sometimes a contention is raised pertaining to
doctrine of delay and laches in filing a writ of quo
warranto. There is a difference pertaining to personal
interest or individual interest on one hand and an interest
by a citizen as a relator to the court on the other. The
principle of doctrine of delay and laches should not be
allowed any play because the person holds the public office
as a usurper and such continuance is to be prevented by the
court. The Court is required to see that the larger public
interest and the basic concept pertaining to good
governance are not thrown to the winds.

19. Mr. P.P. Rao, learned senior counsel, has commended us to
the decision in Hari Bansh Lal v. Sahodar Prasad Mahto and
others[6], where the learned Judges referred to the
principles laid down in Duryodhan Sahu (Dr.) v. Jitendra
Kumar Mishra[7] Ashok Kumar Pandey v. State of W.B.[8], B.
Singh (Dr.) v. Union of India[9], Dattaraj Nathuji Thaware
v. State of Maharashtra[10] and Gurpal Singh v. State of
Punjab[11] and expressed the view thus: –

“The above principles make it clear that except for a writ of
quo warranto, public interest litigation is not maintainable in
service matters.”

20. Ordinarily, after so stating we would have proceeded to
scan the anatomy of the Act, the Rules, the concept 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
pertaining to recovery of the sum from the holder of the
post. We shall dwell upon the same at a later stage.

21. As advised at present, we may refer to certain authorities
in the field in this regard. In Bandhua Mukti Morcha v.
Union of India and others[12], Bhagwati, J., (as his
Lordship then was) had observed thus: –

“When the Court entertains public interest litigation, it does
not do so in a caviling spirit or in a confrontational mood or
with a view to tilting at executive authority or seeking to
usurp it, but its attempt is only to ensure observance of social
and economic rescue programme, legislative as well as executive,
framed for the benefit of the have-nots and the handicapped and
to protect them against violation of their basic human rights,
which is also the constitutional obligation of the executive.
The Court is thus merely assisting in the realization of the
constitutional objectives.”

22. In Dr. D.C. Wadhwa and others v. State of Bihar and
others[13], the Constitution Bench, while entertaining a
petition under Article 32 of the Constitution on behalf of
the petitioner therein, observed that it is the right of
every citizen to insist that he should be governed by laws
made in accordance with the Constitution and not laws made
by the executive in violation of the constitutional
provisions. It has also been stated therein that the rule
of law constitutes the core of our Constitution and it is
the essence of rule of law that the exercise of the power
by the State whether it be the legislature or the
executive or any other authority should be within the
constitutional limitation and if any practice is adopted
by the executive which is in flagrant violation of the
constitutional limitations, a member of the public would
have sufficient interest to challenge such practice and it
would be the constitutional duty of the Court to entertain
the writ petition.

23. In Neetu v. State of Punjab and others[14], the Court has
opined that it is shocking to note that Courts are flooded
with large number of so called public interest litigations
where even a minuscule percentage can legitimately be
called as public interest litigation. Commenting on
entertaining public interest litigations without being
careful of the parameters by the High Courts the learned
Judges observed as follows: –

“Though the parameters of public interest litigation 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
others[15], 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 orders were passed
primarily to protect fundamental rights under
Article 21 of the marginalized groups and
sections of the society who because of
extreme poverty, illiteracy and ignorance
cannot approach this Court or the High
Courts.

• Phase II. – It deals with the cases relating
to protection, preservation or ecology,
environment, forests, marine life, wildlife,
mountains, rivers, historical monuments etc.
etc.

• Phase III. – It deals with the directions
issued by the Courts in maintaining the
probity, transparency and integrity in
governance.”

25. In Bholanath Mukherjee and others v. Ramakrishna Mission
Vivekananda Centenary College and others[16], it has been
laid down that public interest litigation would not be
maintainable in service law cases.

26. In Duryodhan Sahu (supra), a three-Judge, Bench posed a
question whether the administrative tribunals constituted
under the Administrative Tribunals Act, 1985 can entertain
a public interest litigation. A post of lecturer was
created in a Government Medical College recognized by the
Medical Council of India and the State Government
requested the Public Service Commission to recommend a
suitable candidate from the reserved list. At that stage,
a third party described himself as the Secretary of a
particular Surakhya Committee, filed an original
application for quashing the Government order creating the
post of the teacher. A grievance was also put forth that
the post was not advertised. The tribunal restrained the
appointment of the beneficiary, the appellant before this
Court. The learned Judges opined that the administrative
tribunal constituted under the said Act cannot entertain a
public interest litigation at the instance of a total
stranger. While so stating the three-Judge Bench opined
that as the prayer was for quashment of the creation of
post itself and preventing the authorities and for
preventing the Government from appointing any candidate as
Lecturer, the prayer would not come in the sphere of quo
warranto.

27. Thus, from the aforesaid authorities it is quite vivid
that the public interest litigation was initially evolved
as a tool to take care of the fundamental rights under
Article 21 of the Constitution of the marginalized
sections of the society who because of their poverty and
illiteracy could not approach the court. In quintessence
it was initially evolved to benefit the have-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 of the judgment of the High Court.

29. At this stage, it is necessary to understand the Scheme
framed by the State Commission as per the provisions of
Section 22 of the Act. As stated earlier, CESU was
constituted by an order dated 8.9.2006 passed by the
Commission. The Scheme was amended from time to time vide
notifications dated 13.10.2006, 5.5.2007, 31.10.2007,
6.9.2008, 2.8.2010, 12.11.2010, 5.9.2011, 31.3.2012 and
17.9.2012. As per the Scheme a CEO is to be appointed on
the basis of a regular advertisement published in the
newspaper and the advertisement prescribes the
qualification and other criteria to be satisfied by an
applicant aspirant to the post of CEO. The service
conditions of the CEO are decided by the State Commission
taking into consideration the situation prevalent as per
the resolution and orders passed by the State Commission
from time to time and the said selection, is to be made in
a transparent manner. It is the stand of the appellant
that Mr. Jena was not appointed as CEO in accordance with
the procedure. It is to be noted that he was functioning
as the Chairman of CESU. Sub-clause (iv) of clause 4 of
the amended Scheme dated 31.10.2007 may be reproduced with
profit: –

“The CEO, CFO, COO and CCO should not hold any other
posts/office during their tenure in the CESU. The terms of
office, emoluments and conditions of service of CEO, CFO, COO
and CCO shall be such as to be decided by the Commission by
order issued under this Scheme. The Commission may extend their
tenure for a further period, as it thinks fit.”

29. Clause 5(ii) of 2007 Scheme enumerated the powers and
functions of the CEO. Clause 5 was amended and thereafter
on 12.11.2010 further amendment was brought in. The
amendment, inter alia, substituted clause 4(iv). The
following was added to the existing clause 4 as clause
4(ix): –

“Whenever needed, the power, functions and responsibilities of
Chairman and CEO can be discharged by one person, designated as
Chairman-cum-CEO.”

30. At this stage, it may be noted with profit that the
Commission vide letter dated 29.12.2007 had communicated to
the CESU about the terms and conditions for appointment of
CEO. It reads as follows: –

“1. Chief Executive Officer:

The Scale of Pay of the Chief Executive Officers is fixed
at Rs.18,400-500-22,400/-. The Basic Pay of Shri Dasgupta
joining in the post of Chief Executive Officer 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 shall be linked to the performance of
the Chief Executive Officer.

As negotiated at the time of interview the appointment of
Shri Swapan Dasgupta as CEO in CESU is initially for a period of
four years on Contract Basis, which can be extended for one year
depending on the necessity of the organization, performance and
usefulness of the officer and the cost to company shall be
limited to 10% over and above his present entitled in CESC,
Kolkata.

The Contract can be terminated on either side by three
months notice or by payment/deposit of three months’ emoluments
in lieu of notice.”

31. When Mr. Swapan Dasgupta was appointed as CEO, the conditions
of appointment were – annual package of Rs.22 lakhs with
certain perquisites. After Mr. Dasgupta submitted his letter
dated 9.8.2010 requesting the Commission to relieve him from
the post of CEO, the Commission decided to relieve him with
effect from that date. Thereafter on 10.8.2010 the
Commission passed the following order: –

“At present, Shri B.C. Jena, Chairman, CESU Management Board is
closely monitoring the overall functioning of CESU as per para 5
of the FIFTH Amendment to the Central Electricity Supply Utility
of Orissa (Operation and Management) Scheme, 2006 notified by
the Commission vide Notification No. CESU(O&M)/4590 dtd.
03.8.2010. It has been stipulated that the Chairman shall
guide, advise and have overall superintendence and control over
the CEO, CFO, COO, CCO, CPIO, Sr. G.M. (HR) and CVO for smooth
and efficient functioning of the CESU. Since it will take quite
some time for the selection of a CEO to make alternative
arrangement, the Commission shall have now decided that the
function, duties and responsibilities of CEO, CESU shall be
discharged by Shri B.C. Jena, Chairman, CESU Management Board
until further orders or until alternative arrangement is made by
the Commission. This order will be effective from 10.8.2010.

Shri Jena will enjoy all the perquisites/ facilities as
was being given to the CEO except the monthly emoluments. The
Commission would take a view later on regarding the desirability
of giving an honorarium to the Chairman, CESU Management Board
for enabling him to discharge his duties and responsibilities as
a CEO over and above the responsibilities of Chairman and his
other current assignments, if any.”

32. We may also note with profit that a policy decision had been
taken 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
drive. He will be in overall charge of engineering, finance,
commerce, corporate/ regulatory affairs and general management
of the utility. This is a Board level position and he should at
least possess a professional degree in Engineering or Management
or Accountancy or Law from a reputed University. He should have
at least 10 years experience in senior level managerial position
in a large organization.”

34. It also stipulates that the tenure of appointment would be
for a period of two years and extendable thereafter depending
upon the performance of the candidate and the requirement of
the organization and the applicant should not be more than 60
years of age as on 1.4.2012.

35. In this backdrop it is to be seen whether the action of the
authority requiring the Chairman to remain in-charge of the
CEO or to function as CEO comes within the scope and ambit of
writ of quo warranto. We have already stated the principles
relating to exercise of jurisdiction of the court to issue a
writ of quo warranto. When a writ of quo warranto is filed,
it is the obligation of the relator to satisfy the court that
the office in question is a public office and is held by the
usurper without the legal authority. It is the duty of the
court to see whether the appointment has been made contrary
to the statutory rules. Issue of institutional integrity has
also to be taken into consideration when a post is filled up
and that is where the manner in which the appointment came to
be made or whether the procedure adopted was fair, just and
reasonable are required to be seen. On a perusal of the
reasons adopted by the High Court it is perceptible that it
has paved a different path. It has given emphasis on the
role of the Commission, the functionism of CESU, the control
of the Chairman on the CEO, the violation of the principles
of natural justice, the nature of appointment, the abuse of
power by the Commission and the violation of the regulations
in such appointment. In our opinion, most of the reasons
that have been given by the High Court are totally
unrelatable to the sphere of issue of writ of quo warranto.
We are only required to see whether the Commission had the
authority to make any temporary arrangement and whether the
5th respondent was eligible for the said purpose. To
understand the said facet, we have to refer to certain
provisions of the Act which encapsulate the basic 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 such manner as it may deem fit.

Provided that, if the licensee does not dispose of the
utility, within a period of six months from the date of
revocation, under section 20 or section 24, the Appropriate
Commission may cause the works of the licensee in, under, over,
along or across any street or public land to be removed and
every such street or public land to be reinstated, and recover
the cost of such removal and reinstatement from the licensee.”

From the aforesaid provision, it is limpid that the Commission
has been conferred power to formulate a Scheme or issue directions in
the public interest so that operation of the utility service is not
put to hazard.

36. In the case at hand, as has been stated earlier, the utility
service came into existence after formulation of a Scheme.
The Scheme has been amended from time to time. The High
Court has referred to clause 4(iv) and clause 5 of the
Scheme. We think it appropriate to reproduce clause 4(iv)
and clause 5 of the Scheme as reproduced by the High Court: –

“(iv) The CEO, CFO and COO should not hold any other
posts/office during their tenure in the CESU. The terms of
office, emoluments and conditions of service of CEO, CFO and COO
shall be such as to be decided by the Commission by order issued
under this Scheme. The Commission may extend their tenure for a
further period, as it thinks fit.”

xxx xxx xxx

Clause 5 :

“(i) Chairman

(a) He shall preside over all Board Meetings.

(b) He shall guide, advise and have overall
superintendence and control over the CEO, CFO and COO for
smooth and efficient functioning of the CESU.

(c) He shall decide all the matters referred to him by the
Board.

(d) He shall discharge all other duties assigned by the
Commission under the Scheme.

(ii) Chief Executive Officer (CEO)

Subject to overall supervision, control and delegation of
power by the Management Board and directions of the
Commission –

(a) He shall act as Chief Executive and Chief Spokesman of
the CESU.

(b) He shall manage the day-to-day affairs and management
of CESU and shall represent the CESU before the Commission
and other Authorities.

(c) He shall carry out and implement the orders and
directions issued by the Commission to the CESU.

(d) He shall carry out and implement the
resolutions/decisions taken by the Management Board.

(e) In consultation with the Management Board, he 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 have
been conferred upon the Chairman as the Chairman is required to
supervise and control the function of Officers of the Board as
well as in the Organization, therefore his appointment as Chief
Executive Officer as an alternative arrangement is contrary to
Clause 5 of the Scheme referred to supra. The powers and
functions of the Chief Executive Officer have been extracted
above. Further, as could be seen from the impugned order, the
appointment in question is styled as temporary in nature. If
the post falls vacant, it is the duty of the Commission to see
that the post is filled up by following the service
regulations.”

38. Thereafter, the High Court has referred to the resolution
dated 12.11.2010 by which the Commission had allowed Mr. Jena
to continue as Chairman-cum-CEO to discharge the duties and
responsibilities until further orders and was extended the
benefit of consolidated honorarium of Rs.70,000/- per month
in addition to the usual perquisites as enjoyed by the CEO.
After so stating, the High Court has proceeded to express
thus: –

“24. The contention urged on behalf of opp. party no. 2-
Secretary, OERC is that only temporary arrangement has been made
fixing a monthly honorarium of Rs.70,000/- which is payable to
the Chief Executive Officer. It is unknown to the service
jurisprudence that an employee/officer who is put in charge of
another office or post in addition to his own duty is to be
granted honorarium. The same is totally impermissible in law.
On reading Annexures-3 & 5, we are of the view that it is not
legally correct on the part of the Commission to appoint the
Chairman as the Chief Executive Officer, which is contrary to
the service regulations. opp. party no. 3 should not have been
placed on temporary arrangement as the Chief Executive Officer
having regard to the nature of powers and functions required to
be discharged by the Chairman who has been put in charge of the
Chief Executive Officer who is under the control and supervision
of the Chairman. He cannot supervise his own work which is the
violation of principle of natural justice. He cannot find out
his own defect and discharge his responsibilities.

25. Therefore, we are of the view that the Commission has
acted illegally and in violation of service regulations placing
the opp. party no.3 in the post of Chief Executive Officer and
further granting him honorarium w.e.f. 11.08.2010 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 Exeucitve 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 not correct. The Board has the
overall power of supervision and management. That apart, the
power is vested with the Commission to do so under the
Scheme. The High Court has also referred to certain
provisions about the regulations. Needless to emphasise, the
said regulations operate in a different field altogether and
have nothing to do with any appointments under the Scheme.
The only thing which has been highlighted by the 1st
respondent is that it was accepted by the High Court that he
was a retired officer and was appointed as Chairman and
further was asked to remain in charge of CEO and was given
some honorarium, which is impermissible. In fact, what is
submitted is that he becomes an appointee in respect of two
posts which the law does not countenance. The said
submission suffers from a fundamental fallacy. The Chairman
of CESU is a honorary post. He was getting sitting fees for
attending the meetings. He was not even given a fixed
honorarium. Therefore, to conclude that he was holding two
posts and drawing salary for both the posts is factually
incorrect.

40. The whole thing has to be scrutinized from the point of view
of power. Suitability or eligibility of a candidate for
appointment to a post is within the domain of the appointing
authority. The only thing that can be scrutinized by the
Court is whether the appointment is contrary to the statutory
provisions/rules. In Hari Bansh Lal (supra) the Court took
note of the stand of the Law Officer of Jharkhand State
Electricity Board and commented on the somersault in the
stand made by the State and thereafter proceeded to note that
the appellant Hari Bansh Lal had retired in 1985 and there is
no prescription for upper age limit for appointment as Member
or Chairman of the Board. The Court took note of the
encomiums by the Electricity Board and the State Government
before the High Court. Eventually, the learned Judges opined
thus: –

“43. Though, in the PIL, the writ petitioner has mentioned the
age of Mr. Lal as 90, it is factually incorrect and Mr Lal
himself swore an affidavit and asserted and it is not disputed
by the State that he is 84 as on date and according to him, he
is hale and healthy. We have already reproduced the stand of
the State Government before the High Court about his
qualification and service rendered as Member and Chairman in the
State Electricity Board.”

xxx xxx xxx

“45. Taking note of all these relevant factors and of the fact
that admittedly, there is no age-limit prescribed in the rules
for appointment to the post of Chairman and also with regard to
the stand of the State Government about the qualification as
well as good service rendered by the appellant, we feel that in
the event of quashing the High Court’s order, he should be
allowed to continue as Chairman of 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 a contract appointment to choose a highly qualified and
skilled person. The extension is also dependant upon
performance. No limit is provided for number of extensions.
It would depend upon the capability, efficiency and
suitability as adjudged by the employer. Needless to say,
for grant of extension the person would not have a right.
Similarly his continuance for the term of three years will
depend upon the nature of appointment letter issued to him.
Thus viewed, we are inclined to think that the principle
stated in Hari Bansh Lal’s case would get attracted. That
apart, there is no maximum age limit for Chairman. He holds
a higher post and his experience and capability have been
appreciated by the Commission. It is a well known principle
that the employer can ask an officer to remain in charge of
another office till the said post is filled up. It is within
the permissible authority of the employer. Under the Scheme
the Chairman was not getting any remuneration. He was only
getting sitting fees. Looking at his ability and efficiency
the Commission thought it appropriate that he should be given
the charge of CEO and accordingly an honorarium was fixed.
Honorarium was not equivalent to the salary. The High Court
has erroneously opined that it was an appointment. The 5th
respondent was not getting two sets of salary. Thus
analysed, we have no hesitation that the reasons ascribed by
the High Court to quash the arrangement are unacceptable and,
accordingly, the decision on that score deserves to be
lancinated and we so do.

42. We may proceed to state that once we have dislodged the the
decision of the High Court whereby it has opined that the
Chairman could not have been allowed to remain in-charge of
CEO as a logical corollary the direction for recovery gets
annulled. But we think it appropriate to add something.
Even in a writ of quo warranto while declaring that a person
is not eligible to hold the post had rendered service, we are
disposed to think, there cannot be recovery of amount. While
exercising the power for issue of writ of quo warranto the
Court only makes a public declaration that the person holding
the public office is a usurper and not eligible to hold the
post and after the declaration is made he ceases to hold the
office. Till the declaration is made, the incumbent renders
service and when he has rendered service he cannot be
deprived of his salary. Denial of pay for the service
rendered tantamounts to forced labour which is impermissible.
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 others v. Union of India and
others[17]: –

“… if a person has contracted with another to perform service
and there is consideration for such service in the shape of
liquidation of debt or even remuneration he cannot be forced, by
compulsion of law or otherwise, to continue to perform such
service, as that would be forced labour within the inhibition of
Article 23. This Article strikes at every form of forced labour
even if it has its origin in a contract voluntarily entered into
by the person obligated to provide labour or service (vide
Pollock v. Williams[18]). The reason is that it offends against
human dignity to compel a person to provide labour or service to
another if he does not wish to do so, even though it be in
breach of the contract entered into by him. There should be no
serfdom or involuntary servitude in a free democratic India
which respects the dignity of the individual and the worth of
the human person.”

43. In view of the aforesaid analysis we are of the resolute
opinion that even while issuing a writ of quo warranto there
cannot be any direction for recovery of the sum. While
entertaining a PIL pertaining to a writ of quo warranto we
would add that it is the obligation of the court to pave the
path which are governed by constitutional parameters and the
precedential set-up. It is to be borne in mind that laws are
commended to establish a society as required by the paradigms
laid down by law. The courts while implementing law may not
always be guided by total legalistic approach but that does
not necessarily mean to move on totally moralistic principle
which has no sanction of law. We have been constrained to
say so as we find that there is a temptation to say something
in a public interest litigation which can be construed as the
overreach. It needs no special emphasis to state that
formulations of guidelines or directions issued are bound to
be within the constitutional parameters.

44. The matter may be viewed from the point of view of the 5th
respondent. True it is, his remaining in-charge of the post
of the CEO was called in question before the High Court in a
public interest litigation wherein a writ of quo warranto was
issued. A judgment can be erroneous but when there is a
direction for recovery of the honorarium, it indubitably
creates a dent in the honour of a person. Honour once lost
may be irredeemable or irresuscitable. Mr. Ramachandran has
number of times submitted before us that because of the
humiliation faced, the 5th respondent decided not to continue
in the post of the Chairman also. We have stated so because
we strongly feel that a cautious approach is requisite while
dealing with a writ of quo warranto.

45. Resultantly, the appeals are allowed and the judgment and
order passed by the High Court is set aside. In the facts
and circumstances of the case there shall be no order as to
costs.
………………………..J.
[Anil R. Dave]
………………………..J.
[Dipak Misra]
New Delhi;
November 01, 2013.

———————–
[1]

[2] AIR 1965 SC 491
[3]

[4] (2003) 4 SCC 712
[5]

[6] (1993) 4 SCC 119
[7]

[8] (2002) 6 SCC 269
[9]

[10] (2011) 4 SCC 1
[11]

[12] (2010) 9 SCC 655
[13]

[14] (1998) 7 SCC 273
[15]

[16] (2004) 3 SCC 349
[17]

[18] (2004) 3 SCC 363
[19]

[20] (2005) 1 SCC 590
[21]

[22] (2005) 5 SCC 136
[23]

[24] AIR 1984 SC 802
[25]

[26] AIR 1987 SC 579
[27]

[28] AIR 2007 SC 758
[29]

[30] (2010) 3 SCC 402
[31]

[32] (2011) 5 SCC 464
[33]

[34] (1982) 3 SCC 235
[35]

[36] 322 US 4 : 88 L Ed 1095

 

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