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Jharkhand High Court · body

2001 DIGILAW 689 (JHR)

Arbind Kr. Roy v. State Of Jharkhand

2001-09-21

M.Y.EQBAL, VINOD KUMAR GUPTA

body2001
JUDGMENT V.K. Gupta, C.J. 1. This petition under Article 226 of the Constitution of India by way of a Public Interest Litigation matter has been filed by the petitioner, inter alia claiming the relief of the issuance of a writ of mandamus upon the State of Jharkhand and its functionaries to appoint persons of impeccable and highest integrity, with unblemished past service career, and proven competence and having specialised knowledge in their respective fields to the posts of Chairman and Members of the Jharkhand State Electricity Board. Even though in the cause title of the writ application, appointments on the posts of Chairman/Managing Directors and Members/Directors of various Boards/Corporations in the State have been mentioned as coming within the scope of this petition, but during the course of hearing, the petitioner confined, restricted arid limited his prayer with respect to the aforesaid Public Offices of Jharkhand State Electricity Board (JSEB. in short) only. 2. The State of Jharkhand came into existence on the 15th November, 2000 by virtue of the provisions contained in the Bihar Re-organisation Act, 2000. Because a new State has come into being, undoubtedly and obviously, Institutions, Boards. Corporations. Tribunals. Bodies and Authorities of various hues have to be, constituted in the new State of Jharkhand to replace, one by one and step by step, similar Bodies which hitherto were operating in the territory now falling in the State of Jharkhand but under the control of the State of Bihar. J.S.E.B. is one of such Bodies. Section. 62 of the Bihar Re- organisation Act. 2000, is the provision of law which deals with the question: of either continuance of the operations of the existing Electricity Board in respect of the areas now falling in the Jharkhand State or replacing the existing Bihar board by a newly created Board of the State of Jharkhand itself. Even though Sub-section (1) of Section 62 did provide that even after the appointed day. Bihar Board would continue to function in respect of the areas now falling in the Jharkhand State, a combined reading of Sub-sections (2), (3) and (4) of Section 62 clearly suggests that the formation of the own Electricity Board by the State of Jharkhand was an explicit intention of the Legislature and the continued operation of the Bihar Board was only by way of an interregnum, to cater to the transitional phase. It is in this backdrop that even after the creation of the State of Jharkhand from 15th November. 2000, Bihar State Electricity Board continued to exercise control and performed operations with respect to generation and distribution of power within the Jharkhand State as well, because the State of Jharkhand had not constituted its own State Electricity Board and it was only in the month of February, 2001 that the State of Jharkhand decided to constitute its own State Electricity Board by naming it as "Jharkhand .State Electricity Board". In terms of Section 5 of the Electricity (Supply) Act, 1948, the composition of the Board also had to be determined and once this process apparently got underway, rumours and stories started getting afloat in the State with regard to various names doing rounds. The newspapers started carrying stories and features with respect to many names doing, rounds as possible candidates or probable chpices like to be appointed on the posts of Chairman and Members of the JSEB. Newspapers also started carrying stories and features with-respect to the past lives of these persons, their career profiles, antecedents, service records and started featuring these persons in different hues and colours. These publications gave rise to some apprehensions and, perhaps justifiably and rightly so (looking to the contents of these publications) in the minds of the public at large that those rumoured and projected possible and probable appointees on these posts may not turn out to be the persons of highest calibre, impeccable and unimpeachable integrity with unblemished record of service in the past and proven track-record of performance as would be compatible and in conformity with the requirements of the office they might be called upon to hold. Apprehensions and misgivings, perhaps, were not totally misplaced as the people of Jharkhand State, still basking in the aftermath of the glory of the birth of new State and a very high degree of expectations in the States progress and prosperity as also the aspirations of the people that the State may administratively and in other fields prove to be a model State based on corruption-free administration and effective, performance-related dispensation and operational apparatus, perhaps, righteously felt that steps be taken to ensure that the State does not appoint persons with tainted image, blemished past record or persons of doubtful integrity or impeachable credibility on these posts. 3. 3. It is in the aforesaid background that this public-spirited individual who claims to be a qualified Electrical Engineer and is in the look-out for better prospects in life and whose hopes, he says, have been kindled after the formation of the new State of Jharkhand approached this Court by filing the aforesaid writ application and claiming the reliefs as quoted at the very outset. Undoubtedly and clearly the petitioner is not and possibly cannot be a candidate for any of the posts which form the subject matter of this petition. Hence his bona fides in filing this petition possibly cannot be doubted or questioned. 4. On 7th March, 2001, when this petition came up for the first time for consideration and we directed the learned Advocate General to obtain instructions from the State, we made the following pertinent observations : "....It goes without saying that persons with clean record, unimpeachable reputation and impeccable integrity deserve to be appointed on the posts of Chairman and Members of the board like the State Electricity Board looking to the nature of the performance and duties to be performed and the vital interests of the State. Even though this Court has no doubt that the State Government shall ensure that only persons as aforesaid are appointed, we direct the learned Advocate General to obtain instructions from his client with regard to the above referred apprehensions and misgivings of the petitioner and report to this Court or file affidavit. This is up to the learned Advocate General to file affidavit or to report. Meanwhile we direct that if any appointment is made by the State Government to the posts of Chairman or Members of the Board, the State Government shall keep the aforesaid observations in mind. We also direct that if any appointment in the meanwhile is made, it shall be subject to the result of the petition." 5. Many developments have occurred after the passing of the aforesaid order. But first of all, let us notice the statutory provision relating to the appointment on the posts of Chairman and Members of Board. Section 5 of the Electricity (Supply) Act. 1948 provides for the constitution and composition of a State Electricity Board. Sub-section (2) of Section 5 lays down that the Board shall consist of not less than 3 and not more than 7 Members to be appointed by the State Government. Section 5 of the Electricity (Supply) Act. 1948 provides for the constitution and composition of a State Electricity Board. Sub-section (2) of Section 5 lays down that the Board shall consist of not less than 3 and not more than 7 Members to be appointed by the State Government. Sub-section (4), generally and broadly speaking prescribes the experience, eligibility criteria and qualification etc. of the persons who can be appointed as Members of the Board Sub-section (5) suggests that out of the Members appointed under Sub-section(4), the State Government may nominate one of them as Chairman of the Board. 6. In so far as the eligibility criteria and the qualifications of the Members of the Board including the Chairman, Clause(a), (b) and (c) of Sub- section (4) lay down that such persons who have experience and have shown capacity in commercial matters and administration, who are Electrical Engineers with wide experience and who have experience of accounting and financial matters in a public-utility. Undertaking (preferable an Electricity Supply Undertaking) shall be eligible to be appointed as Members of the Board. 7. Now some of the facts. After the constitution of the Board in terms of Sub-section (1) of Section 5 (supra), on 2nd February, 2001, Shri Lal Chand Mahto, Energy Minister, Government of Jharkhand (Respondent No. 5) sent a proposal to Shri Babulal Marandi, Chief Minister, Jharkhand, for the composition of the board by suggesting names of 5 individuals and two ex- ojficio Members of the Board. In this proposal, he suggested, amongst others, at si. No. 1 the name of Shri Kapildeo Parsad Sinha, as Member Ad-ministration-cum- Chair man, Shri Niranjan Rat. Member-Finance and Shri S.N. Akhauri, Member-Distribution. On the same day i.e, 2nd February. 2001, (the movement of the file was indeed very fast, just the same day; the fast movement being a relative phenomenon because it is commonly known as to how many weeks or months are taken in normal course), the Chief Minister approved the aforesaid proposal of the Minister, but by a modification of his own, to the limited extent that he (Chief Minister) proposed the name of one Shri H.B. Lal as Chairman and suggesting that Shri K.P. Sinha be made only as a Member-in- Charge of Production etc. It is worth mentioning that in his note the Minister had not proposed the name of Shri H.B. Lal. It is worth mentioning that in his note the Minister had not proposed the name of Shri H.B. Lal. How and from where and under what circumstances the name of Shri H.B. Lal cropped up is not discernible from the note of either the Minister or the Chief Minister. 8. Rules of Executive Business Bihar. 1979 framed under Clause (3) of Article 166 of the Constitution of India have been adopted by the Government of Jharkhand. Relevant extract of Rule 32 of these Rules reads thus : "32(a) The following cases shall be submitted to the Chief Minister through the Chief Secretary by the Principal Secretary/Secretary of the department concerned after consideration by the Minister- in-Charge but before the issue of order : * * * * * * (ix) proposals for appointment of Heads of Departments, or promotion to the posts of Heads of Departments- (i) Proposals regarding super time and senior scale officers of the Indian Administrative Service and the Indian Police Service and Officers of these services drawing higher scale of pay; (ii) Proposals regarding departmental Secretaries, Special Secretaries, Additional Secretaries, other than those men- tioned in Sub-rule (i) above, Heads of Departments and other officers, whose maximum pay in the pay scale of Rs. 5,000/- and above along with the recommendations of the Establishment Committee constituted In accordance with Cabinet Secretariats Resolution No. 3918, dated the 25th October, 1980. (xiv) Any departure from these rules which comes to the notice of the Chief Secretary or the Principal Secretary. Secretary of any department." 9. It appears that the Secretary, Energy Department on the same day, i.e. 2nd February, 2001, after receipt of the file from the Chief Minister sent a note to the Chief Secretary that the matter regarding the composition of the Electricity Board and the appointment of its Chairman and Members was sent by the Minister- in-Charge Energy directly to the Chief Minister without it being routed through the Chief Secretary. He accordingly wanted to obtain the views, advise and direction of the Chief Secretary because according to him, under Rule 32 (supra) this matter should have been routed through the Chief Secretary. He accordingly wanted to obtain the views, advise and direction of the Chief Secretary because according to him, under Rule 32 (supra) this matter should have been routed through the Chief Secretary. Chief Secretary, accordingly, on receipt of the file and on going through the aforesaid note of the Secretary, Energy, sent a note on 3rd February, 2001 to the Chief Minister wherein he made on observation in para 1 that this file should have been routed to the Chief Minister through, the Chief Secretary, but it was not done and now since the Secretary. Energy, has sent the file to him, he (Chief Secretary) was constrained to send his note to the Chief Minister. In his note in the succeeding paras, the Chief Secretary made very damaging and adverse comments about Shri H.B. Lal (Shri Hari Bansh Lal), Shri K.P. Sinha. Shri Niranjan Rai, and Shri Horo and suggested to the Chief Minister that the points urged by him in his said note be considered and if need be, the Chief Minister may call the Chief Secretary for consultations and discussions. The thrust of the noting made by the Chief Secretary was that these persons did not possess unimpeachable integrity or credibility, they had doubtful antecedents and that they did not deserve to be appointed on the posts of Chairman or Members of the J.S.E.B. 10. It appears that after receipt of the aforesaid noting from the Chief Secretary and on going-through its contents and. perhaps, having realised that the note of the Chief Secretary was based on correct appreciation of Rule 32 (supra) and that it contained certain factual aspects which warranted the review/reconsideration of the decision taken on 2nd February. 2001, on 11th February. 2001, the Chief Minister sought the opinion of Advocate General, but that file (containing the opinion of the Advocate General) has not been made available to us. It also appears that on 12th February. 2001 (the date 12th at page 19 of the file has been over-written), the Energy Minister once again sent a detailed note with respect to the antecedents of the persons as he had proposed. We are not actually concerned with this detailed note of the Minister because of the reasons that we shall see later. All the aforesaid facts are contained in File No. Ja-U-Bi-13/2000. 11. Nobody knows what happened in the interregnum. 12. We are not actually concerned with this detailed note of the Minister because of the reasons that we shall see later. All the aforesaid facts are contained in File No. Ja-U-Bi-13/2000. 11. Nobody knows what happened in the interregnum. 12. From out of nowhere, all of a sudden, and apparently without any forewarning or any preparatory noting by any subordinate functionary or any input from any official proposal or noting, on 7th March. 2001, the Energy Minister, once again, without making any reference whatsoever to his note of 2nd February, 2001 or the order of Chief Minister thereupon, or his note of 12th February, 2001, or the aforesaid file No. Ja-U-Bi- 13/2000, sent an altogether new and totally fresh proposal for constitution of the Electricity Board. This time he proposed the following three individuals, namely : (1) Shri Rajiv Ranjan as Chairman-cum-Member Administration. (2) Shri Sachidanand Akhauri as Member-Distribution; and (3) Shri Niranjan Rai as Member-Finance in addition to 2 officials as Members ex-officio. In this note, the Minister made an observation that he had discussed the matter and had held consultations with the Chief Minister regarding the composition of the Board and the aforesaid proposal (As we shall see later, we have been informed that no file regarding such consultation is in existence; at least none was given to us). In his proposal the Minister also observed that the bio-data of the persons he was proposing were contained in the file. We shall advert to that a little later. Interestingly, this time the Minister routed the file to the Chief Minister through the Chief Secretary. Interestingly also, the Minister observed that since the Secretary. Energy, was not available, he was routing this file through the Chief Secretary. Looking to the observations of the Chief Secretary and the Secretary. Energy, we are not very sure whether this was factually true or not. But we need not comment on this aspect of the matter. 13. In his note dated 8th March, 2001, the Chief Secretary made some very relevant and pertinent observations with regaid to the aforesaid proposal of the Minister. He inter alia, clearly opined, suggested, recommended and advised that the antecedents of the persons proposed were not available and their experience, their eligibility also were not known and that pertinent material and relevant information should be obtained from their present and former employers. He inter alia, clearly opined, suggested, recommended and advised that the antecedents of the persons proposed were not available and their experience, their eligibility also were not known and that pertinent material and relevant information should be obtained from their present and former employers. Specially, the Chief Secretary recommended that the Annual Confidential Reports of these persons for the past 10 years should also be obtained. In respect of Shri Rajiv Ranjan, the Chief Secretary, inter alia, asked for his service record for the past 10 years confidentially so that it could be appraised properly. He also asked for his character certificate from the Power Finance Corporation where he was employed at that time. Same was required with respect to Shri Sachidanand Akhauri. Insofar as Shri Niranjan Rai, the Chief Secretary made some adverse comments about his being involved in undesirable activities and his facing a case under the Penal Laws in a Court at Hyderabad. On 11th March, 2001, the Chief Minister made the following endorsement on the file (the endorsement is in Hindi but we are attempting our own translation in English) : "1. As per the proposal of the Minister-in-Charge Energy, a communication be sent to the Power Finance Corporation for the deputation of Shri Rajiv Ranjan (on lien) for three years and also the consent of the said Corporation for his proposed appointment. This should be done through FAX. 2. The same action should be taken with respect to Shri Sachidanand Akhauri by writing a letter to Bihar State Electricity Board and Shri Akhauris consent be also obtained. 3. On receiving the communication from the aforesaid two Institutions and the consent of those two persons, further action be taken on the proposal of the Minister for appointment of these, two persons. These persons should be given the salary on the same scale as they are presently getting and they should be provided with the facilities and perquisites as are available to the persons working in the Bihar State Electricity Board. 4. With respect to Shri Niranjan Rai, information be collected and it should be placed later on." 14. We may here advert with respect to the bio-data of the aforesaid three persons to which reference was made by the Minister-in-Charge Energy Department, in his note dated 7th March, 2001, sent to the Chief Minister. 4. With respect to Shri Niranjan Rai, information be collected and it should be placed later on." 14. We may here advert with respect to the bio-data of the aforesaid three persons to which reference was made by the Minister-in-Charge Energy Department, in his note dated 7th March, 2001, sent to the Chief Minister. While making observations and comments upon such bio-data of these three persons, we cannot remain oblivious to the statutory requirements relating to eligibility, experience and qualifications etc. as are contained in Sub-section(4) of Section 5 of the Electricity (Supply) Act. 1948. As already noticed and observed, even at the risk of repetition, clauses (a), (b) and (c) of Sub-section(4) (supra) lay down the qualifications and eligibility criteria inter alia to prescribe that the Board comprising of not less than three and not more than 7 Members, the qualification etc. of the Members may be as hereinbelow stipulated: (1) He shall be a persson who has experience of and has shown capacity in commercial matters and administration; (2) He shall be an Electrical Engineer with wide experience. (3) He shall be a person who has experience of accounting and financial matters in a public utility undertaking, preferably an Electricity Supply Undertaking. The aforesaid three types of qualifications, experience and eligibility criteria have been prescribed with respect to persons who may be appointed as Members of the Board. In this background, therefore, and in the face of the aforesaid statutory requirements, what we find from the perusal of the file, with respect to the Ministers claim that the bio-data of these three persons as contained in the file are three sets of papers, on each relating to the three persons, sent by these three persons themselves, which they call as their "bio- data" or "curriculum vitae". These three documents, one each sent by such persons, apparently and undoubtedly are in the nature of their self- appraisal, created by themselves. There is nothing unusual, of course, in these persons sending their self-appraisal/self-as-sessment/curriculum vitae because it is normally done by persons aspiring for employment or seeking job opportunities. What we are concerned with, however, is that apart from this single piece of self-assessment/self-appraisal by each suph individual, there is nothing on record whatsoever to suggest that any attempt was made at any stage by anyone, despite note of the Chief Secretary dated 8.3.2001. What we are concerned with, however, is that apart from this single piece of self-assessment/self-appraisal by each suph individual, there is nothing on record whatsoever to suggest that any attempt was made at any stage by anyone, despite note of the Chief Secretary dated 8.3.2001. prior to this note or at any time thereafter to collect any information or obtain any material with respect to anyone of these persons or even to obtain their service records or A.C. Rs. for the past 10 years or for any other lesser period. What, therefore, emerges is that, what these three persons themselves provided by way of their self-ap- praisal was made the basis of the proposal for the recommending their names for the appointment. Files clearly show that there was no other basis whatsoever. In fact, perusal of the files also does not at all show how these self-appraisals came to be transmitted to the State Government or the Minister. There is no application, no forwarding letter, no material which can show as to how did the State Government come to possess these sheets. The fact remains that the recommendation was made by- the Minister and okeyed and approved by the Chief Minister without there being any other material on record. 15. Also, apart from the fact that on the file there is nothing else by way of any material or information about these persons, there is no noting by any State functionary, any bureaucrat, any Minister or the Chief Minister as to whether these persons possess any qualification experience or eligibility criteria as is stipulated in clauses (a), (b) and (c) of Sub-section (4) (supra). No such recommendation. No such information. No such assessment. There is no noting by anyone on any official file whether the Government at any stage of the formulation, or consultation or decision-making process considered whether these persons had any experience or had shown capacity in commercial matters and administration, whether anyone of them was an Electrical Engineer with wide experience and whether anyone had any experience of accounting and financial matters in a public- utility Undertaking, preferably an Electricity Supply Undertaking. The expression "Electricity Supply Undertaking" is of very important and vital connotation because even though a person may not be an Electrical Engineer or he may not have had experience in commercial matters and administration, yet if he has experience of accounting and financial matters, such experience must be obtained from a Public-Utility Undertaking whose business and job was of supplying electricity. The Legislature has very purposely used the expression "preferably an Electricity Supply Undertaking" because the clear intention appears to be that since the provision relates to the Membership of an Electricity Board, person related to an Electricity Supply Undertaking, but having experience of accounting and financial matters in that undertaking may also be eligible for consideration The expression "Public Utility Undertaking", therefore, should not be read in disjunction with the expression "Electricity Supply Undertaking". Both these expressions should be read jointly and in conjunction with each other. The expression "Electricity Supply Undertaking" also must be given its true and natural meaning to clearly indicate and convey that an Undertaking which supplies electricity alone should be considered as "Electricity Supply Undertaking" and not an Undertaking which may or may not be directly or indirectly, remotely or proximately connected with any matter relating to electricity as such. 16. As already observed, there Is no record also any "consultation that the Minister had with the Chief Minister" as has been observed in his note of 7th March. 2001. We had specifically issued a direction to the Government to place before us any file regarding such consultation between the Minister and the Chief Minister, but a statement was made before us that no such file exists and that there is no record of any such consultation between the Minister and the Chief Minister. A reference in this connection may be made to our order dated 9th July, 2001 in which we had, after taking note of certain observations, directed the State through the learned Advocate General to file an affidavit with regard to the procedure, if any adopted by the State for selecting the Chairman and the Members of the Board and for verifying the claims of these persons for being appointed on these posts. The relevant extract of our order dated 9th July. The relevant extract of our order dated 9th July. 2001, reads thus : "Coming back to the main controversy with regard to the appointment of persons on the post of Chairman and Members of the State Electricity Board, a perusal of the files given to us by the learned Advocate General suggests to us that some more information is required by us from the State Government. We. accordingly, direct the learned Advocate General to file an affidavit of the State with regard to the procedure adopted by it in selecting the present incumbents to the office of the Chairman and the Members and claims of these persons for being appointed to these posts and as to whether any wider selection and consideration process was Invoked in making selections to this public office as important as the State Electricity Board. From perusal of one of the two files given to us by the learned Advocate General, a note of 7th May, 2001. by the Energy Minister gives a reference to some consultation undertaken by him with regard to the State Electricity Board, its constitution and the five names suggested by the Energy Minister. From the file, we do not find any record of such consultation, nor any minutes with regard to any consideration process. We direct the learned Advocate General to produce before us the regard of the said consultation and consideration process, either if maintained or in existence." In answer to the aforesaid query, on 17th July, 2001, Mr. Radheyshyam Poddar, Secretary, Energy, filed his affidavit before us. Paras 3 and 4 of that affidavit are relevant in so far as the aforesaid query is concerned. These read thus : "That I say that the four files containing the initiation and process of appointment of the Chairman and other Members of Jharkhand State Electricity Board have already been produced before this Honble Court pursuant to the direction issued by this Honble Court. That I say that all the materials are in the said files and there is no other material with the Government in respect of the action taken, as far as the selection of the Members and the Chairman of Jharkhand State Electricity Board is concerned." 17. The point which may, therefore, arise for our consideration is as to how these names came up for consideration and whether any procedure was followed or not? The point which may, therefore, arise for our consideration is as to how these names came up for consideration and whether any procedure was followed or not? The short answer seems to be that no procedure was followed in locating, proposing, recommending or selecting these names. Actually what we find is that by proposing the name of these two persons, the respondent No. 5 was indulging in a patently arbitrary exercise of executive power. Apart from exercising executive power, as noticed earlier. Respondent No. 5 was also performing a statutory duty cast upon him under Section 5 of the Electricity (Supply) Act, 1948. When a statutory provision requires that a particular act has to be done in a particular manner, not doing so in that manner undoubtedly amounts to violating the statute. If Section 5 required the Government to appoint persons possessed of a particular eligibility criteria, possessed of a specific knowledge and experience of a particular type, it was the statutory duty of the Government (in this case being exercised through respondent No. 5) to ensure that, while proposing any name or names, these factors, considerations any requirements were kept in mind. That was not done. The exercise of the executive power was done arbitrarily; the exercise of statutory power was done in violation of the mandatory statutory provisions of law. 18. A question may arise as to how should have the respondents gone about in choosing and selecting the persons for manning these posts? (Before answering this question, one thing has to be clearly kept in mind and that in that it was the duty of the State to have chosen the best available persons for these posts). The answer to the question is very simple. The respondents were performing a statutory function, exercising the executive powers of the State. They were expected to act fairly, objectively and keeping in view the established principles of equality before law and affording equal opportunities to all concerned. The record In his case clearly shows that on both occasions, the respondents picked up their favourites, chosen ones from out of no where and recommended their names for appointment. They were expected to act fairly, objectively and keeping in view the established principles of equality before law and affording equal opportunities to all concerned. The record In his case clearly shows that on both occasions, the respondents picked up their favourites, chosen ones from out of no where and recommended their names for appointment. Especially, if one looks to the noting dated 7th March, 2001, one finds that there is no disclosure whatsoever as to how, in what manner, under what circumstances and based on which material or source of information, die respondent No. 5 have to recommend/propose the names of the aforesaid persons. There is no explanation whatsoever on this aspect of the matter. There is no explanation whatsoever forthcoming on this aspect even from the pleadings of the respondents. The pleadings are totally silent on this issues. It is not that the favourites were being chosen? Can it not be said that it was a case of indulging in naked favouritism and nepotism? 19. J.S.E.B. is not the personal property of any one. It is not the private estate of any one. It is a Statutory Board, being the creation of a Statute. It is an instrumentality of the State. The persons manning the Board are public servants. The Board is conferred with statutory powers and entrusted with statutory functions of a very vital nature, a core area of a very very important public utility service. The State finances and funds the Board. The Board enjoys the powers and privileges of a State Institution. It has the trappings of an organ of the State, Indeed, it is an authority as contemplated under Article 12 of the Constitution of India and yet here was an attempt to fill up the vacancies in the Board at its highest level without following the procedure as laid down under Article 14 or Article 16 of the Constitution. 20. In sum total, therefore, we have no hesitation in coming to the conclusion, based on the aforesaid facts and circumstances that the appointment of Shri Rajiv Ranjan and Shri Sachidanand Akhauri as Chairman and Member respectively of JSEB does not appear to have been made properly, fairly and in accordance with the provisions contained in Section 5 of the Electricity (Supply) Act. 1948. 1948. We are saying to for the following reasons : (1) Article 14 relating to equality before law and Article 16 relating to equality of opportunity in matters of public employment do not appear to have been followed with respect to these two persons. The basis of our holding so is that with respect to these appointments to Public Offices, the public at large was not given any opportunity, in the sense, that the participation of eligible persons was not invited. A closed-door, behind the scene process in a hush- hush manner was adopted in recommending the names of these two persons without there being any basis or material as to how and upon what foundation relating to experience, eligibility, suitability, and merit were these two persons recommended. Had the State evolved the practice and well established norm of enlarging the scope of consideration process, it would have attracted candidates with highest capabilities, "eligibility, knowledge and experience; (2) We are not very sure whether the persons appointed actually possessed the prescribed qualifications, had the requisite experience; eligibility criteria, or the knowledge to perform the job for which they were proposed to be appointed: (3) The recommendations of the Chief Secretary were not followed. What the Chief Secretary had recommended was that the past record of service of these persons including their confidential assessment from their former employers, their A.C.Rs. for the past 10 years should be called. (4) The most ideal situation would have been, with respect to appointment on such high posts, to either invite applications of intending eligible candidates, or to constitute a Search Committee or a Select Committee of highly placed persons who would look for appropriate candidates for recommending their names for these posts. (5). Clearance by any established Vigilance organization in all such appointments should have been a mandatory requirement. 21. This now brings us to the vexed question of applicability and enforceability of Rule 32 of the Rules of Executive Business and to see and find out as to whether its compliance is mandatory. The contention of Shri Debi Prasad, learned Senior Counsel appearing for Respondent No. 5. Shri Lal Chand Mahto is that In terms of Rule 32 (supra) there is no mandatory requirement that in all cases covered by Rule 32. Minister-in-Charge should route the file through the Chief Secretary in it was meant for being placed before the Chief Minister. The contention of Shri Debi Prasad, learned Senior Counsel appearing for Respondent No. 5. Shri Lal Chand Mahto is that In terms of Rule 32 (supra) there is no mandatory requirement that in all cases covered by Rule 32. Minister-in-Charge should route the file through the Chief Secretary in it was meant for being placed before the Chief Minister. Alternatively, the contention of Mr. Debi Prasad is that Rule 32 (supra) is not applicable in the facts and circumstances of this case. On both these contentions we must record our disagreement. 22. In the case of State of Bihar v. Subhash Singh, reported in 1997 (1) PLJR 79, their Lordships of the Supreme Court while examining the scope, nature and extent of the constitutionality of the Rules of Executive Business with reference to Article 166(3), of the Constitution of India clearly and unequivocally held that these rules are having a binding effect. Article 166 of the Constitution gives power to the Governor to make Rules for the more convenient transaction of the business of the Government of a State. Article 154 provides that executive power of the State shall vest in the Governor and after saying so, it lays down that the said executive power shall be exercised by the Governor either directly or through Officers subordinate to him in accordance with the Constitution. Article 163 of the Constitution suggests that the executive power of the State shall extend to all such matters with respect to which the Legislature of the State has power to make laws. A combined reading of Articles 154, 162 and 163. therefore, clearly suggests that even though the executive power of the State vests In the Governor and the same is exercisable by him either directly or through Officers subordinate to him, it is to be done in accordance with the provisions of the Constitution and such provisions are to be found either in Article 162 or in Article 166. Whereas Article 162 suggests that the executive power shall extend to matters with respect to which the Legislature of a State has the power more convenient transaction of the business of the Government. Whereas Article 162 suggests that the executive power shall extend to matters with respect to which the Legislature of a State has the power more convenient transaction of the business of the Government. There is, thus, no manner of doubt whatsoever that the Rules framed by the Governor in exercise of his power under Article 166(3) of the Constitution which also has a close bearing and direct relationship with Articles 154 and 162 of the Constitution are of binding effect and are meant to be complied with by everyone in the State, -irrespective of whatever position he might be holding. Viewed thus, Rule 32 (supra) provides that the cases mentioned in that Rule which a Minister wants to submit to the Chief Minister shall be routed through the Chief Secretary and riot otherwise. It, thus, clearly means that whenever a Minister has to send a file to the Chief Minister, it has to be routed through the Chief Secretary. In other words, the route of the file having clearly been prescribed, it having been channellised through the Chief Secretary, and this being a mandatory requirement of the Constitution (Rule 32 of the Rules of Executive Business being in the nature of a Rule enacted by the Governor in the exercise of his Constitutional power), such channel or route cannot be bypassed by anyone. Any action, therefore, taken either by the Minister or by the Chief Minister, if such a channel or route is broken or it is by-passed, clearly shall be violative of Rule 32, endangering itself on the touchstone of its Constitutional legality and validity, in the sense that it might expose itself to the attack that the action has not "been done in conformity with the provisions of the Constitution and laws. In the present case, however, in the light of the facts as are relevant, we are not called upon to pronounce on the validity of any such action on such a touch-stone, on the anvil of Article 166(3) read with Rule 32 (supra), because in the present case, in the ultimate analysis. Rule 32 has not been violated inasmuch as the proposal of 7th March, 2001 was routed by respondent No. 5 through the Chief Secretary. Rule 32 has not been violated inasmuch as the proposal of 7th March, 2001 was routed by respondent No. 5 through the Chief Secretary. It appears that respondent No. 5 ultimately realised his mistake, his error and this time decided that it would be a wise thing on his part if he conforms to Rule 32 and routes the file through the Chief Secretary. As fqr as the proposal originating on 7th March, 2001 is concerned, the same, therefore, cannot be faulted on the ground of violating Rule 32 but the first proposal originating on 2nd February. 2001 .undoubtedly had stood vitiated because it violated Rule 32. The Minister (respondent No. 5) in utter disregard to the mandatory constitutional, requirement of submitting the file to the Chief Minister through the Chief Secretary and in violation of Rule 32, routed the same directly to the Chief Minister and obtained his orders on the same day. In a democracy where rule of law is of paramount application and importance and where all decisions are taken on constitutional and statutory parameters, no one, howsoever, high he may be can be permitted to subvert the mandatory constitutional provisions. In fact, under Article 166(3) of the Constitution, the Rules made for the executive business of the State are precisely meant to be a check-mate, a controlling device, a regulatory mechanism against any such con- tingency where anyone may like to exercise an arbitrary executive power. If that happens, such rule would always come into play, preventing such a happening. The Respondent No. 5, therefore, undoubtedly violated Rule 32 with respect to the proposal of 2nd February, 2001 and had the Secretary. Energy and the- Chief Secretary not detected this violation and intervened, it in all likelihood might have gone unnoticed, culminating in an illegality being perpetuated. Whether he did it deliberately or purposely or knowingly is an entirely different matter. Energy and the- Chief Secretary not detected this violation and intervened, it in all likelihood might have gone unnoticed, culminating in an illegality being perpetuated. Whether he did it deliberately or purposely or knowingly is an entirely different matter. We are not very sure whether can say with any fair degree of certainty that he did it deliberately or purposely but it does appear to us that, perhaps, on the basis of all the attendant circumstances, it can be said that since he was in an awful hurry and because he wanted the order on that day itself, he thought it more convenient to bypass the normal bureaucratic channels and in derrogation of Rule 32 to directly take the file to the Chief Minister and obtain his orders. Perhaps, he knew, might have had a premonition or an advance warning, that the Chief Secretary through whom the file was to be routed might make certain adverse observations, thus frustrating his proposal. In fact, that is what actually happened in the ultimate analysis, but later on. He forgot in the process that the Chief Secretary being the head of the bureaucracy in the State has a duty cast upon him to advise the - Government with respect to any proposal which comes to his notice. 23. The role of the Chief Secretary in a set up like the present one is that of a watchdog in the sense that with respect to all such important files-, it is his duty to ensure that the Rules of Executive Business are observed and that the proposals emanating from the Minister meant for the Chief Minister or meant for the cabinet are properly examined to ensure that they are, according to law and rules, in public interest and that infringements or violations do not take place. In the present case, in the aforesaid background, when we examine the role of the Chief Secretary, we must place on record out very deep sense of appreciation for whatever he has done. The Chief Secretary in both the notes submitted by him to the Chief Minister, as based on the originating note of the Mini- ster dated 2nd February. 2001 and also as based on the originating note of the Minister dated 7th March. The Chief Secretary in both the notes submitted by him to the Chief Minister, as based on the originating note of the Mini- ster dated 2nd February. 2001 and also as based on the originating note of the Minister dated 7th March. 2001 clearly took upon himself the onerous duty of advising the Government, as to how it should proceed in the matter of appointment of Members and Chairman to such an important Statutory Board as JSEB. We have no hesitation in saying that the Chief Secretary credited himself with candour, fairness, objectivity and a sense of duty to the State by pointing out whatever he thought was wrong in the note of the Minister or In his proposal. Only, it was not acted upon. Why ? 24. It is in the aforesaid background that we may also examine a very, very unusual stand taken by Respondent No. 5. Respondent No. 5 in his capacity as Minister in-Charge Energy Department had filed his separate affidavit in the Court, in answer to the writ application on 28th March. 2001. In para 10 of that affidavit, he had the following to say about the Chief Secretary :-- "It is unfortunate that the Chief Secretary inspite of the order passed by the Chief Minister in the file has not acted in accordance with the order of the Chief Minister." On 9th July, 2001 when the matter came up for consideration before us, we found that respondent No. 5 had also filed another affidavit on 6th June, 2001 styling it as "reply to counter affidavit on behalf of the State of Jharkhand". The following paragraphs in that affidavit of respondent No. 5 are revealing. These read thus :-- "2. That the counter affidavit has been filed without consultation from this respondent. This respondent has been made party by name. 3. That a perusal of the counter affidavit show that it has been filed at the instance of Chief Secretary and against the instruction given by this respondent and the same is liable to be ignored. 4. That with regard to the statements made in para 5 and 6 of the counter affidavit, it is stated that it was not incumbent upon this respondent to send the file through Chief Secretary and this respondent has every right to send the file directly to the Chief Minister. 5. 4. That with regard to the statements made in para 5 and 6 of the counter affidavit, it is stated that it was not incumbent upon this respondent to send the file through Chief Secretary and this respondent has every right to send the file directly to the Chief Minister. 5. That with regard to the matter regarding Rule 32 of the Executive Busi- ness of" the Rules of the Executive Business is not mandatory. It was not necessary to this respondent to send the file to the Chief Minister through Chief Secretary. The order passed on the file ought to have been obeyed by the Chief Secretary." 25. In the affidavit filed on behalf of the State of Jharkhand through its Energy Secretary on 29th May. 2001 it was clearly stated that the deponent in that affidavit, i.e., Energy Secretary to the Government of Jharkhand, was duly authorised by the State Government to file this affidavit and otherwise also he was competent to swear the affidavit. From a perusal of the record, we also found that the affidavit filed by the Energy Secretary had been approved by no less than a person than the State Chief Minister and that the State Advocate General had settled the same. At that point of time, that is 19th July, 2001 when we are confronted with this dilemma as to which affidavit we should rely upon, we had called upon the State to clarify the position. Here we were confronted with a situation where we had an affidavit purportedly filed on behalf of the State Government through its Energy Secretary, duly approved by the State Chief Minister and settled by the State Advocate General and we also had a rejoinder to this affidavit filed by a Minister of the State Government in which serious accusations were levelled against the Secretary Energy and the Chief Secretary. Not only that, in the affidavit filed by the Minister, he also pleaded with the Court that the counter affidavit filed on behalf of the State be ignored by the Court (refer to para 3 of the affidavit of the Minister filed on 6.6.2O01). We had, therefore, a very unusual situation where a Minister of the Government was taking a stand against the Government itself. Not only that he was asking the Court to ignore the affidavit filed by and on behalf of the State. 26. We had, therefore, a very unusual situation where a Minister of the Government was taking a stand against the Government itself. Not only that he was asking the Court to ignore the affidavit filed by and on behalf of the State. 26. Cabinet system of governance in a democracy is based on collective sense of responsibility. Hence some one who is a Member of the Council of Ministers, as long as he is a Minister in the Cabinet, he is bound by this principle of collective responsibility. We have no doubt in our mind that it is not open to a Minister to take a stance like the present one taken by respondent No. 5 wherein ah affidavit filed in the Court, the Minister can ask the Court to ignore the stand taken by and on behalf of the State. There is a clear conflict between the individual stand of the Minister and that of the Government. Such a conflict has always to be resolved In favour of the latter. If a Minister feels that there is no possibility or a chance of a resolution of the conflict turn in, out to be in his favour, he always has various options available to him, both in the political arena and in the realm of Administrative Law. In the present case, what we found is that it was wholly improper for the Minister to have taken the aforesaid stand. Apart from being contrary to the stated constitutional position, in public policy, the stand was opposed to all principles of propriety and violated the established norms of collective responsibility of the Cabinet system. 27. Compared to the aforesaid stance of respondent No. 5, let us consider the stand of the Bureaucrats. The Chief Secretary and the Secretary Energy Department were only following the law. They were both observing the rules of business. They were performing the duties assigned to them under the Constitution to properly advice their political bosses, to inform them of the pitfalls with respect to the proposals and to bring to their notice the negative aspects of the proposed appointments. All this was being done in public interest, pure and simple. Respondent No. 5, however, was doing the opposite. He was trying to short circuit and avoid the procedure duly established by law. He was trying to by-pass the normal channels. All this was being done in public interest, pure and simple. Respondent No. 5, however, was doing the opposite. He was trying to short circuit and avoid the procedure duly established by law. He was trying to by-pass the normal channels. Why was he doing this could be for any number of reasons. It would be a hazardous task to venture into any guess about the reasons of the factors why he was trying to do so. But the fact remains that what he was trying to do was against the established procedure having the sanction of the Constitution as provided under Article 166(3). Viewed thus, the two affidavits filed by respondent No. 5 in this Court took a position which was contrary to public Interest and opposed to the constitutional functioning of the State inasmuch as respondent No. 5 in both these affidavits was taking a stance, a position which was diametrically opposite to that taken by the State itself in this Court. The affidavit filed on behalf of the State was a document which represented the States authenticated institutionalised version before this Court. Such an authenticated official institutionalised ver- sion of the State was being thwarted by the affidavit of one of the Ministers. We have no hesitation whatsoever in holding that it was not open to the Minister to adopt such a stance. If the Minister ever felt and only justifiably so, and not otherwise, that he had to take a stance contrary to or different from the approved authenticated institutionalised stand of the Government, he had his remedies and options available to him. He could not have made his stand public; he could not have aired his grievances publicly. What he could not do publicly, he was doing in the course of proceedings in this Court. It was worse. When this Court observed in its order dated 9th July, 2001, that this Court was in a dilemma, having been put in such an unenviable position because of the aforesaid stance of respondent No. 5, what this Court actually meant was as to whose version this Court would rely upon in deciding these issues. It was worse. When this Court observed in its order dated 9th July, 2001, that this Court was in a dilemma, having been put in such an unenviable position because of the aforesaid stance of respondent No. 5, what this Court actually meant was as to whose version this Court would rely upon in deciding these issues. On a careful consideration and after a very thorough examination of various facts of constitutional law, we have now come to a firm and final opinion that the stance taken by respondent No. 5 being unconstitutional and contrary to the aforesaid established principles of collective responsibility of the Cabinet system of governance has to be discarded, has to be rejected and the version put up through the affidavits filed on behalf of the State has to be accepted. 28. In our order dated 7th March, 2001 we had clearly issued directions in unmistakable terms, without any vagueness or ambiguity, that if the State wanted to make any appointments, it shall keep in mind that persons with clean record of service, unimpeachable reputation and impeccable integrity alone should be appointed on those posts. We had also issued a direction and made it very clear in the said order that if any appointments in the mean while was to be made on any of these posts, those would be subject to the result of this petition. Importantly, in that order we had directed the learned Advocate General either to file a counter affidavit or to report instructions of the State Government to us as to whether it intended to appoint any persons during the pendency of the petition and what were the antecedents and the particulars of the persons that the Government proposed to appoint ? We have absolutely no hesitation whatsoever in quashing and setting aside the appointment of Mr. Rajiv Ranjan and Mr. Sachidanand Akhauri. Chairman and Member of the Board respectively; because in addition to whatever we have discussed above regarding the merits of their appointments, since these appointments were "admittedly made after the passing of our order dated 7th March, 2001 and during the pendency of the petition, these appointments explicitly remained subject to the result of this petition and secondly despite the directions contained in our aforesaid order, the State never informed us that it proposed to appoint these two persons. Curiously enough (it may or may not be wholly relevant) the process for the appointment of these persons started on the very way we passed our aforesaid order. Was it a mere co-incidence or otherwise is something on which we need not speculate or hazard any guess at this juncture. 29. In view of the aforesaid peculiar facts and circumstances and particularly, because of our order dated 7th March. 2001 and the stipulations contained therein, we have no reasons to doubt that in these proceedings we can quash and set aside the appointments of these two persons, particularly in view of the manner and form in which these appointments have been made. 30. In the course of this judgment, we have extracted some notings from official files which contain some remarks and observations, adverse or otherwise with respect to some individuals. In the opening part of the judgment also we have referred to some newspaper reports and some apprehensions of persons with regard to their courts or reservations about some antecedents or background or some individuals. In the course" of this judgment certain other observations, remarks, fears or apprehensions attributable to various sources or persons also might have come to be mentioned or observed by us. 31. We have not gone into any aspect of the correctness or the incorrectness of any of the aforesaid remarks or observations. We have not considered any material with respect to any such remark or observations with respect to any such individual. We have not gone into any such question based on any material or otherwise. Therefore, we make it abundantly clear and absolutely categorical that "this judgment in no way or manner, directly or indirectly, shall be construed as any expression of opinion by this Court with respect to the correctness or incorrectness, authenticity and genuineness or otherwise or the validity or invalidity of any such remark or observation with respect to any individual. No part of this judgment, therefore, also accordingly shall be considered as any finding or determination by this Court with respect to any such matter. No part of this judgment, therefore, also accordingly shall be considered as any finding or determination by this Court with respect to any such matter. We are making these observations loudly and clearly to allay the fears and dispel the misgivings and apprehensions of some persons who sought intervention" in this case for ostensible reasons and apparently on the ground that their reputation and honour were in jeopardy and at stake, and that they wanted to put across their views before us. Since we have not gone into any such question, and mainly and primarily also because no such question either fell for our consideration or was directly involved for consideration as such, we need not pass any orders on any of such intervention applications. The intervention applications, accordingly, shall be considered to have been dismissed only on the basis of the aforesaid observations and comments, and on no other ground. 32. In the result, therefore, this petition succeeds. The appointment of Mr. Rajeev Ranjan and Mr. Sachidanand Akhauri. Chairman and Member of the JSEB are quashed and set aside. The State is directed to restart the process for making fresh appointments on the posts of Chairman and Members of the Board. It shall be advisable and desirable if the State constitutes a High Powered Search Committee/Select Committee of experienced persons, with proven credentials to do the task of selecting right persons for these posts. 33. J.S.E.B. being a very vital and important Statutory Board, the only Institution of the State entrusted with the task and responsibility of generation and distribution of electrical energy, cannot be left without its Chairman or Member. We are not oblivious to a situation where, because of the quashing and setting aside of these appointments a void, may be created in the interregnum. To tide over such a situation, therefore, we direct that the State Government shall immediately issue an executive order either entrusting additional responsibility of the aforesaid posts to someone or continuing with the aforesaid two persons till alternative arrangements are made. The continuance of the aforesaid two persons, however, shall be purely by way of a Stop-gap and transitory arrangement. The said interim arrangement, however, being purely transitory in nature, shall not continue beyond six weeks from today. 34. The petition is allowed. No order as to costs. 35. Petition allowed.