Holding

The appointment of the appellant as Chairperson is void because the Selection Committee failed to comply with the mandatory requirement of Section 85(5) of the Electricity Act, 2003, and the High Court's quashing of the appointment is affirmed.

Summary

The appellant, Rajesh Awasthi, was appointed Chairperson of the Uttar Pradesh State Electricity Regulatory Commission after a Selection Committee forwarded his name with a note that the government must first ensure compliance with Section 85(5) of the Electricity Act, 2003. The petitioner challenged the appointment, arguing that the Selection Committee failed to satisfy the statutory requirement that it must itself be satisfied that the candidate has no financial or other interest likely to affect his functions, and that the 1999 Rules governing the selection were not followed. The High Court quashed the appointment via a writ of quo warranto. On appeal, the Supreme Court held that Section 85(5) imposes a mandatory, non‑curable condition on the Selection Committee, which it breached by not recording its satisfaction before recommending the candidate, rendering the appointment void. Consequently, the appeal was dismissed and the High Court's order affirmed.

Issues considered

The Selection Committee must satisfy itself under Section 85(5) of the Electricity Act, 2003 before recommending a candidate for Chairperson.
Whether non‑compliance with Section 85(5) is a procedural defect that can be cured or a fatal statutory violation rendering the appointment void.
Whether a writ of quo warranto lies where the appointment is made contrary to the statutory provision.
Locus standi and delay in filing the writ petition.

Legislation cited

Constitution of Indias. 226
Electricity Act, 2003s. 82, s. 84, s. 85(5), s. 86
U.P. Electricity Regulatory Commission (Appointment and Conditions of Service of the Chairperson and Members) Rules, 1999s. 3(3)

Subjects

Electricity Act 2003Section 85(5)Selection CommitteeQuo warrantoAppointment validityStatutory complianceRegulatory commissionPublic officeJudicial review

Judgment

[2012] 1O S.C.R. 883

RAJESH AWASTHI A
v.
NANO LAL JAISWAL & ORS.
(Civil Appeal No. 7600 of 2012)
OCTOBER 19, 2012
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

Electncity Act, 2003:

s. 85(5) - Selection of Chairperson of State Electricity c
Regulatory Commission Selection Committee
recommending to State Government two names asking the
Government to ensure compliance of sub-s. (5) of s. 85 -
Held: Power conferred under sub-s. (5) of s. 85 of the Act has
to be exercised by Selection Committee and not by the
0
Government - 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 their functions as
Chairperson, is a matter which depends upon the satisfaction
of Selection Committee and that satisfaction has to be arrived
at before recommending any person for appointment as E
Chairperson to State Government - Selection Committee has
given a complete go-by to that provision and entrusted that
function to the State Government which is legally
impermissible - State Government a/so, without application
of mind and overlooking that statutory provision, appointed F
the appellant - Jn the instant case, there has been total non-
compliance of the statutory provision by the Selection
Committee which makes the decision making process
vulnerable warranting interference by constitutional courts
and, therefore, High Court is justified in holding that the G
appointment is non est in law - Constitution of India, 1950 -
Art. 226.

Constitution of India, 1950:
883 H
--.,'

884 SUPREME COURT REPORTS . [2012] 10 S.C.R.

A Art. 226 - Writ of quo warra~to - Held: A citizen can claim
a writ of quo warranto and he stands in the position of a relater
- A writ of quo warranto will lie when the appointment is made
contrary to the statutory provisions - In the instant case, the
question as to whether, being Vice-President of the private
B company, 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 - The statutory requirements as prescribed in
sub-r. (3) of r. 3of1999 Rules were also not followed over and
c above, the non-compliance of sub-s. (5) of s. 85 of the Act -
The expression "before recommending any person" in sub s.
(5) of s. 85 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
0 Chairperson - The expression "before" clearly indicates the
intention of the Legislature - Non-comp/ian.ce of sub-s. (5) of
s. 85 ot the Act is not a procedural violation, and vitiates the
entire selection process - High Court has rightly held that the
appointment of appellant was in clear violation of sub-s. (5)
of s.85 of the Act and, consequently, he has no authority to
E hold the post of Chairperson of the Commission - Electricity
Act, 2003 :- s.85(5) - U.P. Electricity Regulatory Commission
(Appointment and Conditions of Service of the Chairperson
and Members) Rules, 1999 - r.3(3) - Locus Standi.

F Consequent upon the post of Chairperson, U.P.
State Electricity Regulatory Commission falling vacant,
applications were invited from eligible candidates and out
of 30 applicants, the Selection Committee constituted u/
s 85 of the Electricity Act, 2003, selected two persons on
G merit, including the appellant and forwarded their names
to the State Government with an asterisk against the
name of the appellant that if he was appointed, the
Government would first ensure the compliance of sub-s.
(5) of s.85 of the Act. The Government appointed the
H appellant as Chairperson of the Commission on
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 885

29.12.2008, on which date the appellant sent a letter to the A
State Government stating that he had resigned from his
previous assignment in the private sector on 27.12.2008.
The respondent, who was the General Secretary, Jal
Vidyut Unit, filed a writ petition before the High Court
seeking a writ of quo warranto challenging the B
appointment of the appellant, inter alia, on the ground that
the Selection Committee did not follow the provisions of
sub-s. (5) of s.85 of the Act and the appellant could not
have been selected as he was working with a private
sector company and had financial and other interests in c
that company. The High Court allowed the writ petition,
issued a writ of quo warranto and quashed the
appointment of the appellant declaring the same as illegal
and void.

Dismissing the appeal, the Court D

HELD:

(Per Radhakrishnan, J)

1.1 The Electricity Act, 2003 is an Act enacted to E
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 F
to all areas, rationalization of electricity tariff etc. [para 10]
[898-E-F]

1.2 In view of s. 84 of the Electricity Act, 2003, the
Chairperson shall be a person of ability, integrity and G
standing, who 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 s.85, has
to recommend a panel of two names for filling up the post H
886 SUPREME COURT REPORTS [2012) 10 S.C.R.

A of the Chairperson, but before recommending any person
for the purpose it has to satisfy itself that such person
does not have any financial or other interest which is
likely to affect prejudicially his functions as Chairperson.
[para 11] [899-D-F]
B
Crowford vs. Spooner (1846) 6 Moore PC 1; Attorney
General v. Milne (1914-15) All England Report 1061; Nokes
v. Dancaster Amalgamated Collieries Ltd. (1940) 3 All
England Report 549 - referred to.

C 1.3 The language used in sub-s. (5) of s.85 of the Act,
calls for no interpretation. Words are crystal clear,
unambiguous and when read literally, there is no doubt
that the power conferred under sub-s. (5) of s.85 of the
Act has to be exercised by the Selection Committee and
D the Committee alone and not by the Government. Some
of the words used in sub-s. (5) of s.85 are of considerable
importance, such as "before recommending", "the
Selection Committee shall satisfy" and "itself". The
Legislature has emphasized the fact that 'the Selection
E Committee itself has to satisfy', meaning thereby, it is not
the satisfaction of the government what is envisaged in
sub-s. (5) of s.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
F financial or other interest which is likely to affect
prejudicially their. 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
G 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-s. (5) of s.85 of the Act. In the instant
case, the Selection Committee has given a complete go-
H by to that provision and entrusted that function to the
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 887

State Government which is legally impermissible. The A
State Government also, without application of mind and
overlooking that statutory provision, appointed the
appellant. [para 15] [902-F-H; 903-A-D]

2.1 It is true that suitability of a candidate for 8
appointment does not fall within the realm of writ of quo
warranto. However, a writ of quo warranto will lie when
the appointment is made contrary to the statutory
provisions. In the instant case, the question which the
Selection Committee ought to have considered, was as
to whether, being Vice-President of the private company, C
the appellant had any financial or other interest which
would prejudicially affect his function as chairperson.
When the Selection Committee was constituted, the 1999
Rules were in force and the 2008 Rules came into force
only on 1.1.2009. By virtue of s.85 of the Act, the then D
existing Rules 1999 were also safeguarded. Rule 3 of the
1999 Rules deals with the selection process for the post
of Chairperson, which is almost pari-materia to the 2008
Rules. The ~tatutory requirements as prescribed in sub-
r. (3) of r. 3 of 1999 Rules were also not followed in the E
instant case, over and above, the non-compliance of sub-
s. (5) of s.85 of the Act. [para 16, 18-20] [903-E-F; 904-C-
E-G; 905-A]

Mor Modern Coop. Transport Coop. Transport Society F
Ltd. v. Govt. of Haryana 2002 ( 1 ) Suppl. SCR 87 = (2002)
6 SCC 269; B. Srinivasa Reddy v. Karnataka Urban Water
Supply & Drainage Board Employees Associaition 2006 (5)
Suppl. SCR 462 = (2006) 11 SCC 731; and Hari Bansh
Lal v. Sahodar Prasad Maht and others 2010 (10) SCR 561 G
= (201 O) 9 sec 655 - relied on
R. v. Speyer (1916) 1 K.B. 595 - referred to
2.2 The expression "before recommending any
person" in sub s. (5) of s. 85 clearly indicates that it is a H
888 SUPREME COURT REPORTS [2012] 10 S.C.R.

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. Non-
compliance of sub-s. (5) of s. 85 of the Act is not a
B procedural violation, as it affects the very substratum of
the appointment. 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
c waived. [para 21] [905-0-G]
State Bank of Travancore v. Mohammadv 1982 (1)
=
SCR 338 (1981) 4 SCC 82 - relied on

2.3 This Court is of the view that the appointment of
D the first respondent is in clear violation of sub-s. (5) of
s.85 of the Act. Consequently, he has no authority to hold
the post of Chairperson of the U.P. State Electricity
Regulatory Commission; and the High Court has rightly
held so. [para 22] [906-C]
E
University of Mysore & Anr. v. G.D. Govinda Rao & Anr.
(1964) 4 SCR 575, Mahesh Chandra Gupta vs. Union of India
2009 (1 o ) SCR 921 = (2009) 8 sec 273 - cited.
Per Dipak Misra, J (Concurring):
F
1. A citizen can claim a writ of quo warranto and he
stands in the position of a relater. He need not have any
special interest or personal interest. The real test is to see
whether the person holding the office is authorised to
G hold the same as per law. A writ of quo warranto can be
issued when there is violation of statutory provisions/
rules. Delay and !aches do not constitute any impediment
to deal with the lis on merits. [para 6] [908-F-G; 909-A]

The University of Mysore v. C. D. Govinda Rao and
H
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 889

another 1964 SCR 575 = 1965 AIR 491; High Court of Gujarat A
v. Gujarat Kishan Mazdoor Panchayat 2003 (2) SCR 799 =
2003 (4) SCC 712; B.R. Kapur v. State of Tamil Nadu and
another 2001 (3) Suppl. SCR 191 = 2001 AIR 3435; Dr.
Kashinath G. Ja/mi and another v. The Speaker and
others 1993 (2) SCR 820 =1993 AIR 1873; Retd. Armed B
Forces Medical Association and others v. Union of India and
others (2006) 11 SCC 731 (I); Centre for PIL and another v.
Union of India and another 2011 (4) SCR 445 = 2011 (4)
SCC 1; R. K.. Jain v. Union of India 1993 (3) SCR 802 =
1993 (4) sec 119 - referred to. c
2.1. State Electricity 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 u/s 85 of the Act. Section 85(5) of the Act has
inherent inviolability and every word used therein has to D
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 :my deviation is likely to bring in hazardous
results. [para 18 and 21] [915-C-D; 916-C] E

Utkal Contractors Joinery Pvt. Ltd. and others etc. v. State
of Orissa and others 1987 AIR 1454 = 1987 (3) SCR 317;
Atma Ram Mittal v. /shwar Singh Punia 1988 (2) Suppl.
=
SCR 528 1988 (4) SCC 284; Popat/al Shah v. State of. F
Madras 1953 SCR 677 : AIR 1953 SC 274; Sangeeta Singh
v. Union of India and others 2005 (2) Suppl. SCR 823 = 2005
(7) SCC 484; Uttar Pradesh Power Corporation Limited v.
National Thermal Power Corporation Limited and others
(2011) 12 SCC 400; WB. Electricity Regulatory Commission G
v. CESC Ltd. 2002 (8) SCC 715; and ITC Limited v. State
of Uttar Pradesh and others 2011 (7) SCR 66 = 2011 (7)
sec 493 - referred to.
Black-Clawson International Ltd. v. Papierwerke Waldhof-
Aschaffenburg A G 1975 AC 591- referred to. H
890 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 2.2 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
B would show, is a high powered committee, which has
been authorised to adjudge all aspects. In the case at
hand the issue in singularity pertains to total non-
compliance of the statutory command as envisaged u/s
85(5). Section 85(5) employs the term "recommendation",
c (which means "suggest as fit for employment). [para 22
and 23) (916-0-E, G]

A. Pandurangam Rao v. State of Andhra Pradesh and
others 1976 (1 SCR 620 =1975 AIR 1922 - relied on

D 2.3 In the instant case, 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 s. 85(5) of the Act and left it to
the total discretion of the State Government. The
E 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
F before recommending any person for appointment. 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
G within the realm of curability, for there has been statutory
non-compliance from the very inception of selection. 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. There has been total
H
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 891

non-compliance of the statutory· provision by the A
Selection Committee which makes the decision making
process vulnerable warranting interference by the
constitutional courts and, therefore, the High Court is
justified in holding that the appointment is non est in law.
[para 10, 23, 24 and 27] [910-B-C; 917-B-D; 918-A, F] B

Chief Constable of the North Wales Police v. Evans
(1982) 1 W.L.R. 1155 - referred to.

Case Law Reference:
c
(As per Radhakrishnan, J)
(1964) 4 SCR 575 cited para 6
2009 (10) SCR 921 cited para 6
2010 (10) SCR 561 relied on para 6 D

2006 (5) Suppl. SCR 462 relied on para 6
(1846) 6 Moore PC referred to para 14
(1914-15) All England referred to para 14 E
Report 1061
(1940) 3 All England referred to para 14
Report 549
2002 (1) Suppl. SCR 87 relied on para 16 F
(1916) 1 K.B. 595 referred to para 20
1982 (1) SCR 338 relied on para 21
(As per Dipak Misra, J.) G
2001 (3) Suppl. SCR 191 referred to para 4
1964 SCR 575 referred to para 5
1993 (2) SCR 820 referred to para 6
H
892 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 2003 (2) SCR 799 referred to para 7
(2006) 11 sec 731 (I) referred to para 7

2011 (4) SCR445 referred to para 8

B 1993 (3) SCR 802 referred to para 8

1987 (3) SCR 317 referred to para 14

1988 (2) Suppl. SCR 528 referred to para 15

1953 SCR 677 referred to para 16
c
1975 AC 591 referred to para 16
2005 (2) Suppl. SCR 823 referred to para 17

(2011) 12 sec 400 referred to para 19
D 2002 (8) sec 715 referred to para 19
2011 (7) SCR 66 referred to para 20
1976 (1) SCR 620 relied on para 23

E (1982) 1 W.L.R. 1155 referred to para 26

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7600 of 2012.

From the Judgment and Order dated 10.01.2012 of the
F High Court of Judicature at Allahabad, Bench at Lucknow in Writ
Peition No. 1428 (M/B) of 2011.

L. Nageswara Rao, Ravindra Shrivastava, Gaurav Bhatia,
AAG, Shail Kr. Dwivedi, Gunna Venkateswara Rao, Sanjay
G Kumar Visen, Sathosh Krishnan, Prashant Bhushan. Devvrat,
C.D. Singh, Ayesha Chaudhry, Prashant Chaudhary, Anoop
Jain and Anshuman Srivastava for the Appearing Parties.

The Judgments of the Court was delivered by
H
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 893

K.S. RADHAKRISHNAN, J. 1. Leave granted. A

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 Chairperson of U.P. State Electricity Regulatory B
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 C
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 0
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, E
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. Amit Kumar Asthana. Panel of two names was forwarded F
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 G
of the Commission on 29.12.2008. The appellant on that date
sent a letter to the State Government stating that he had
rezigned from his previous assignments on 27.12.2008 and
severed all his links with the private sector as required under
H
894 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B 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
c working as the Joint President of the 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
D Regulatory Commission (Appointment and Gonditions 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
E 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
F 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
G resigned from that post 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
H Act, hence the appointment was vitiated and the appellant had
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 895
[K.S. RADHAKRISHNAN, J.]

no authority to hold the post of Chairperson. Further, it was also A
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 B
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. C

6. Shri L. Nageswara Rao, learned senior counsel
appearing for the appellant submitted that the High Court has
committed an error in holding that the appointment of the
appellant was in violation of sub-section (5) of Section 85 of D
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 E
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
again.st his name and reminded the State Government that if
he was to be appointed, the provisions of sub-section (5) of F
Section 85 of the Act be first ensured. Learned senior counsel,
therefore, submitted that there was substantial compliance of
that provision anC:t 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 G
Court in University of Mysore & Anr. v. G.D. Govinda Rao &
Anr. (1964) 4 SCR 575, learned senior counsel submitted that
the suitability arrived at by the Committee is not a matter
amenable to proceedings under quo warranto. Learned senior
H
896 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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.

s 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
c 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 8.
Srinivasa Reddy v. Karnataka Urban Water Supply &
D 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 the writ of quo warranto after having found that the
E 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
F 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)
G 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
H would prejudicially affect his functions as Chairperson. Mr.
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 897
[K.S. RADHAKRISHNAN, J.]

Ravindra Shrivastava, learned senior counsel appearing for the A
state of U.P. submitted that the appointment of the appellant
was in violation of sub-section(5) of Section 85 of the 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. B

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 c
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
0
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 -
E
(a) a person who has been a Judge of the High Court ....
Chairperson;

(b) the Chief Secretary of the concerned State .... Member;
F
(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 Chairperson who is
or has been a Judge of the High Court. G

(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 H
898 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B 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
c 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.
D
(6) No appointment of Chairperson or other Member shall
be invalid merely by reason of any vacancy in the
Selection Committee."

E 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
F and supply of electricity to all areas, rationalization of electricity
tariff etc. The Act also 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
G 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
H deals with the qualifications for appointment of Chairperson and
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 899
[K.S. RADHAKRISHNAN, J.]

Members of the State Commission which reads as follows: A

"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 8
standing who have adequate knowledge of, and have
shown capacity in, dealing with problems relating to
engineering, finance, commerce, economics, law or
management.
c
(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."
D
11. The Chairperson, therefore, shall be a person of ability,
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 E
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 F
Chairperson. The State Government under Section 82(5) of the
Act has to appoint the Chairperson on the recommendation of
the S~lection Committee.

12. We have gone through the minutes of the Selection G
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:
H
Bio-data of applicants for the post of Chairperson U.P.E.R.C. co
0
0

S. No. Date of Educational Qualification Retd. Post Holdings Experience
and Birth Academic Professional specialization From (/)
name c
-0
1. S.K. 01-01- BE (Mech. ME (Prod. Director 33 years in ;o
Engg. (Technical) Tehri T.H.D.C.
m
Shukla 1950 Engg.)
Hydro Devpt.
s:
m
Corporation ()
0
3.Anil 29-07- B. Tech. M.Tech Chief Engr. 33 Years in c
Kumar 1952 (Electrical) (Power App. System CEA ~
Asthana & Systems) planning Transmission ;o
& Project m
-0
appraisal CEA opration 0
18. U.C. 31-07-
Misra 1949
B.E.
Electri-cal
Chairman
Bhakra Beas
4.5 Years
UPSEB, 15 ~
Engg.) Management Years NHPC,
Board 16 Years
PGCIL, 2 Years
Chairman BBMB .......
0
20. 19-01- Civil & Joint President 3 Years (/)
()
;o
Rajesh 1950 Municipal J.P. Power Central Designs
Awasthi Engg. Ventures Organization
Graduate 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. 15-06- BSc.(Elec. M.Sc. (Elec D.G. (Trg. 36 Years UPSEB I
Agarwal 1949 Engg.) Engg.) &HRD)UPPCL UPPCL
24. Dr. 01-08- B.E. M.E. Ph.D. Member 29.5 Years
Man 1946 (Elect.) (Power (Commercial (Technical) in CEA, 3 Years
Mohan System) Availability Gujarat ERC NTPC, 2 Years as
Index of Engr, Grade-I, Govt.
Power Plant) of Libya, 4 Years in
Gujrat ERC.
<.O
0
......
902. SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B 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
C 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
D 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, reading the statute as a whole, the context
directs us to do so". Viscount Simon, L.C. in Nokes v.
E 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
F 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
G 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
H recommending", "the Selection Committee shall satisfy" and
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 903
[K.S. RADHAKRISHNAN, J.]

"itself". The Legislature has emphasized the fact that 'the A
Selection Committee itself has to 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 B
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 c
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
0
which is legally impermissible. The State Government also,
without application of mind and overlooking that statutory
provision, appointed the appellant.
16. A \'!rit of quo warranto will lie when the appointment is
made contrary to the statutory provisions. This Court in Mor E
Modem Coop. Transpott Coop. Transporl Society Ltd. v. Govt.
of Haryana (2002) 6 sec 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 F
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 G
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 H
904 SUPREME COURT REPORTS [2012] 10 S.C.R.

A Section 85 of the Act. Consequently, he has no authority to hold
the post of Chairperson of the U.P. State Electricity Regulatory
Cbmmission.
18. We express no opinion with regard to the contentions
raised by the first respondent that the appellant had links with
B J.P. Powef:Ventures Ltd. According to the first respondent, the
appellant.llad 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
C 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
D 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:
E "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
F 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
G 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.
H 20. We fully agree with the learned senior counsel for the
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 905
[K.S. RADHAKRISHNAN, J.]

appellant that suitability of a candidate for appointment does A
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 B
be cured by giving a direction to the Selection Committee to
comply with the 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 c
Court. Learned senior counsel made reference to the judgment
of Court in R. v. Speyer (1916) 1 K.8. 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 D
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 E
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 recommending any person" F
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 G
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 "anv debt due at and before the H
906 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B compliance of sub-section (5) of Section 85 of the Act.
22. We are, therefore, in agreement with the High Court
that the 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
C 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.
DIPAK MISRA, J. 1. I have my respectful concurrence with
the conclusion and the views expressed by my learned Brother
0
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
E warranto has been issued by the High Court of Allahabad,
Bench at Lucknow declaring that the appellant is not entitled
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
F 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 !aches have not
G 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
H passed by the High Court, it is thought apposite to refer to
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 907
[DIPAK MISRA, J.]

certain authorities that fundamentally deal with the concept of A
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 referred
to a passage from Words and Phrases Permanent Edition,
Volume 35, at page 647, which is reproduced below: - B
"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 exe:rcise of
power lawfully possessed, and its purpose !s solely to
prevent an officer or corporation or persons purporting to C
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)
0
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 E
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. G.D. Govinda Rao F
and another, while dealing with the nature of the writ of
quo warranto, Gajendragadkar,J. has stated thus: -
"Broadly stated, the quo warranto proceeding affords a
judicial enquiry in which any person holding an independent G
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
1. AIR 2001 SC 3435.
2. AIR 196 SC 491. H
908 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B 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
c 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
D 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
E
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
F stands in the position of a relater. He need not have any special
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 G. Jalmi and another v. The Speaker and others3.
"7. In High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat' it has been laid down by this Court that a writ of
quo warranto can be issued when there is violation of statutory
3. AIR 1993 SC 1873.
H 4. (2003) 4 sec 712.
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 909
[DIPAK MISRA, J.]

provisions/rules. The said principle has been reiterated in Retd. A
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 another a three-Judge Bench, after referring to the
decision in R.K. Jain v. Union of India, 7 has opined thus: - B
"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 C
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
0
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. E
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 F
Members of the State Commission. Sub-sections (4) and (5)
of Section 85 which are relevant for the present purpose read
as follows: -
"(4) The Selection Committee shall recommend a panel
of two names for every vacancy referred to it. G
(5) Before recommending any person for appointment as
s. (2006) 11 sec 731 (I).
6. c2011) 4 sec 1.
7. (1993) 4 sec 119. H
910 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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."
B 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.
c 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
0 prejudicially his functions as such Chairperson or Member, as
the case may be. As the proceedings of the Selection
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
E 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
F 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
G 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
H competition therein, protecting interest of consumers and supply
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 911
[DIPAK MISRA, J.)

of electricity to all areas, rationalization of electricity tariff, A
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 B
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: - c
"(64) "State CommissiC1n" 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;"
D
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: -
"86. Functions of State Commission. - (1) The State E
Commission shall discharge the following functions,
namely: -
(a) determine the tariff for generation, supply,
transmission and wheeling of electricity, wholesale, F
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 G
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 H
912 SUPREME COURT REPORTS [2012] 10 S.C.R.

A sources through agreements for purchase of power
for distribution and supply within the State;
(c) facilitate intra-State transmission and wheeling of
electricity;

B (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
c 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
D the area 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;
E
(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,
F 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
G to it under this Act.
(2) The State Commission shall advise the State
Government on all or any of the following matters, namely:

H (i) promotion of competition, efficiency and economy
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 913
[DIPAK MISRA, J.]

in activities of the electricity industry; A
(ii) promotion of investment in electricity industry;
(iii) reorganization and restructuring of electricity
industry in the State;
(iv) matters concerning generation, transmission, B
distribution and trading of electricity or any other
matter referred to .the State Commission by that
Government;
(3) The State Commission shall ensure transparency while
exercising its powers and discharging its functions. C
(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." D
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 E
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:- F
"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 internal aids. The external G
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

8. AIR 1987 SC 1454. H
914 SUPREME COURT REPORTS [2012] 10 S.C.R.

A Committees. Occasional excursions into the debates of
Parliament are permitted. Internal aids are the preamble,
the scheme and the provisions of the Ac~. Having
discovered the reason for the statute and so having set
the sail to the wind, the interpreter may proceed ahead.
B 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."
C (emphasis supplied)
15. In Atma Ram Mittal v. lshwar Singh Punia 9 ,
Sabyasachi Mukherji, J. (as his Lordship then was)
emphasizing on the intention of the legislature, stated thus: -
o "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
E consequence, or the spirit and reason of the law."
16. In the said case reference was made to the decision
in Popat/a/ Shah v. State of Madras 10 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
F the observations of Lord Reid in Black-Clawson International
Ltd. v. Papierwerke Wa/dhof-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
G the meaning of the words which Parliament used. We are
seeking not what Parliament meant but the true meaning
9. (1988) 4 sec 284.
10. 1953 SCR 677: AIR 1953SC 274.
H 11. 1975 AC 591.
RAJESH AWASTHI v. NANO LAL JAISWAL & ORS. 915
[DIPAK MISRA, J.]

of what they said." A
17. In Sangeeta Singh v. Union of India and others 12
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 B
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."
c
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 o
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 others 13 wherein, after referring to the E
decision in WB. 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 F
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 was firmly of the view that the G
issues with regard to determination of tariff should be left

12. c2005) 1 sec 484.
13. (2005) 1 sec 484.
14. c2002) 8 sec 715. H
916 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B 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
C 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
D 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 suitability of a candidate or the eligibility, for in the case at
E hand the issue in singularity pertains to total non-compliance
of the statutory comm~nd 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
F in A. Pandurangam Rao v. State of Andhra Pradesh and
others 16 has stated that the literal meaning of the word
"recommend"-1s 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
G 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

15. (2011 > 1 sec 493.
H 16. AIR 1975 SC 1922
RAJESH AWASTHI v. NANO LAL JAISWAL.: & ORS. 917
[DIPAK MISRA, J.]
reasonable one. Absence of recording of satisfaction is A
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,
responsibility of selection has been conferred on a high
powered Selection Committee. The Selection Committee is B
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 c
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 0
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 E
regulators has been accentuated. Credibility of governance to
a great extent depends on the functioning of such regulatory
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. F
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 G
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
H
918 SUPREME COURT REPORTS [2012] 10 S.C.R.

A 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
B is absence of "intellectual objectivity" in the decision making
process. It is to be kept in mind a constructive intellect brings
in good rationale and reflects conscious exercise of conferred
powE!r. A selection process of this nature has to reflect a
combined effect of intellect and industry. It is because when
C 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
D in such a case there is exercise of power of judicial review. In
Chief Constable of the North Wales Police v. Evans, 17 Lord
Brightman observed thus: -

" .... Judicial review, as the words imply, is not an appeal
E 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
F process vulnerable warranting interference by the constitutional
courts and, therefore, the High Court is justified in holding that
the appointment is non est in law.

28. Consequently, the appeal, being sans substratum,
G stands dismissed without any order as to costs.

R.P. Appeal dismissed.

17. (1982) 1W.L.R.1155.