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2004 DIGILAW 860 (JHR)

Pitamber Tiwari v. State Of Jharkhand

2004-08-23

P.K.BALASUBRAMANYAN, SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S.J. Mukhopadhaya, J. 1. This public interest litigation has been preferred by petitioner against Notification No.-19/Uo (Budget)-58/2001-Part 1-229/Ranchi, dated 8th February, 2003 issued by Under Secretary, Energy Department, Government of Jharkhand, Ranchi, whereby and whereunder, 4th respondent, Surendra Singh, a retired Superintending Engineer of Jharkhand State Electricity Board (hereinafter referred to as JSEB) has been appointed as "Nodal Officer", Hydro Electric Projects under the Jharkhand Renewable Energy Development Agency, Ranchi (hereinafter referred to as JREDA). Alternative prayer has been made for issuance of an appropriate writ of quo warranto upon the 4th respondent, he having been appointed as Nodal Officer, Hydro Electric Projects under JREDA. 2. The petitioner is a Civil Engineer of Bachelor of Engineering degree from Sidda Ganga Institute of Technology, Tumkur, Visveswariah Technology, Belgaum and a permanent resident of the State of Jharkhand. According to petitioner he has interest in the progress of the State and fulfillment of the aspirations of the people of the State of Jharkhand. After creation of the State of Jharkhand with a view to develop renewable energy sources within the State, a society was constituted in the name and style of "Jharkhand Renewable Energy Development Agency" (JREDA), Ranchi, which was registered under the Societies Registration Act, 1860. As per "Articles of Association" of the Society, JREDA is governed by a Managing Committee headed by the Secretary, Energy Department, Government of Jharkhand, Ranchi as its Chairman in his ex-office capacity and besides him, the Secretaries of not less than six departments like Finance, Planning, Agriculture, Rural Development, Industry and Environment with additional representation from the Chairman, J.S.E.B. the Director, B.I.T. Mesra, the Principal, Regional Institute of Technology, Jamshedpur and few other officials in their ex-office capacity. The sources of its finance are primarily through the agencies of the Government of Jharkhand and the form, structure and the nature of work performed by the agency is purely in the nature of a public function as an instrumentality of the State, as evident from the Articles of Association. Further case of petitioner is that in the initial stages, the agency shall be manned by deputation of officers and staff placed at its disposal by the Department of Energy, Government of Jharkhand. Further case of petitioner is that in the initial stages, the agency shall be manned by deputation of officers and staff placed at its disposal by the Department of Energy, Government of Jharkhand. In course of time when the scope of work and responsibility of the agency expands, the agency shall have power to appoint its officers and staff in its roll on such terms and conditions which may be decided by the Managing Committee and approved by the Government of Jharkhand in terms with clause 2.15 of the Memorandum. 3. The grievance of the petitioner is that the 4th respondent, Surendra Singh, who is a retired employees of Electricity Board (J.S.E.B.) having doubtful integrity and unclear career record, is not eligible for deputation, he has been appointed against a non-existent post of "Nodal Officer". Hydro Electric Projects under JREDA by an authority, who has no jurisdiction to appoint. The appointment has been made in violation of Article 14 of the Constitution of India. 4. Counsel for the petitioner submitted that the Chief Secretary. Government of Jharkhand recommended for initiating enquiry against the 4th respondent for acts of an omission and commission, such as financial irregularity and corruption during his service career. He had been involved in serious cases of financial irregularity, improper investment and misappropriation of Government money as found upon audit report conducted for the period from 1978 to 1993 i.e. the period during which 4th respondent was posted in the Education Engineering Cell of Education Department, Government of Bihar, The Secretary, Secondary, Primary and Audit Department, Government of Bihar vide its letter No. 22/Ni 01-07/1996 Siksha dated 14th July, 1998 has given gist of audit report showing mis-appropriation/improper investment in crores : ----------------------------------------- SI. Audit inspection Amount involved No. report No./year ----------------------------------------- 1. 155/87-88 Total 3.89 crores 2. 211/88-89 Total 7.50 crores 3. 38/91-92 Total 2.96 crores 4. 77/92-93 Total 0.3 crores 5. 6/96-97 Total 2.37 crores ----------------------------------------- It was also submitted that the 4th respondent committed certain irregularities and mis-appropriated money while he was posted under Bihar State Hydro Electric Power Corporation (hereinafter referred to as BHPC) which has been brought to the notice of the Chairman, Bihar State Electricity Board, Patna by the Managing Directors letter No. 3070, dated 30th September, 2002. 5. 5. According, to petitioner, the 4th respondent was an employee of Bihar State Electricity Board whose services were placed on deputation from time to time under one or other department of the State, such as Education Engineering Cell of Human Resources Development Department or in Corporations like BHPC etc. He was never absorbed in the services of the State of Bihar, State of Jharkhand. After reorganisation of the State and creation of the Jharkhand State Electricity Board (J.S.E.B.), the services of the 4th respondent were taken over under J.S.E.B. from where the retired on 31st December, 2002. Counsel for the petitioner submitted that no post of Nodal Officer, Hydor Electric Power Project was created under the State of Jharkhand or under JREDA and thereby there was no occasion to appoint him or to place his service under JREDA. It was argued that the Notification No.- 19/Uo(Budget)-58/2001-Part-1-229/Ranchi, dated 8th February, 2003 has been issued by the Under Secretary, Energy Department, Government of Jharkhand, Ranchi and not by the State of Jharkhand, who has no jurisdiction to appoint or to place services of any retired employee under JREDA. 6. The case of the 2nd respondent, Chairman, JREDA, Ranchi is that soon after the creation of State of Jharkhand, it was felt necessary to post some experienced person in the field of Hydel Projects as a Nodal Officer in order to make a proper liaison between the B.H.P.C., State of Jharkhand and other concerned departments and agencies. In such a situation, the 4th respondent, who was already on deputation in B.H.P.C., posted within the territory of the Jharkhand and was sufficiently experienced and working as a Project Officer (in the rank of Superintending Engineer) was allowed to operate and look after the affairs and liaison on behalf of the State of Jharkhand as Nodal Officer vide order No.-19/Uo (Budget)-58/2001-Part-1-731/Ranchi, dated 20th March, 2002 issued from Energy Department Government of Jharkhand. The 4th respondent was not paid any additional salary or allowance as Nodal Officer, rather he was treated to be holding additional charge of the said post apart from his functioning as Project Officer of the BHPC. In the month of April, 2002, the services of 4th respondent was returned back by the BHPC to his parent organization i.e. Jharkhand State Electricity Board wherein he was posted as Superintending Engineer with Headquarter at Ranchi. In the month of April, 2002, the services of 4th respondent was returned back by the BHPC to his parent organization i.e. Jharkhand State Electricity Board wherein he was posted as Superintending Engineer with Headquarter at Ranchi. In the month of August, 2002, a requisition was made by the Deputy Secretary, Energy Department, Government of Jharkhand by his letter No. .1566, dated 1st August, 2002, requesting JSEB to allow the 4th respondent to function as per earlier notification issued by the Energy Department, Government of Jharkhand. On such requisition, JSEB vide its letter No. 4775, dated 16th August, 2002 allowed the 4th respondent to hold additional charge of Nodal Officer, and in that way the services of the 4th respondent was taken as an additional assignment for which no additional financial burden was born either by the Energy Department or JREDA. Till his superannuation from the services of JSEB i.e. up to December, 2002, 4th respondent performed his duties with additional charge of Nodal Officer. In the meantime, by a Notification dated 29th January, 2003, the State of Jharkhand handed over the job of handling, looking after and maintenance of Hydel Power Projects of Jharkhand and assigned it to JREDA. It was followed by impugned Notification No.-19/Uo(Budget)-58/2001- Part-1-229/Ranchi, dated 8th February, 2003 whereby the 4th respondent has been appointed as Nodal Officer under the JREDA for all the Hydel Projects. The Managing Committee of JREDA in its meeting held on 19th February, 2003 has approved the appointment of 4th respondent. Similar plea has been taken by 1st and 3rd respondents i.e. State of Jharkhand and the Under Secretary, Energy Department. Government of Jharkhand as also by the 4th respondent, 7. The respondents have raised the question of maintainability of the present public interest litigation and have opposed the prayer for issuance of a writ in the nature of quo warranto but they have not disputed the following facts : (i) The 4th respondent was not a State Government employee but was an employee of the JSEB, retired on 31st December, 2002 i.e. prior to the issuance of the impugned Notification No.-19/Uo(Budget)-58/2001-Part-1-2 29/Ranchi. dated 8th February, 2003. (ii) The impugned Notification No.-19/Uo(Budget)-58/2001-Part-1-229/ Ranchi. dated 8th February, 2003. (ii) The impugned Notification No.-19/Uo(Budget)-58/2001-Part-1-229/ Ranchi. dated 8th February, 2003, has not been issued by the State Government or "by the order of the Governor of Jharkhand", it has been issued by the Deputy Secretary, Energy Department, Government of Jharkhand, who has no Jurisdiction to appoint a Nodal Officer for Hydel Projects under the JREDA. (iii) The post of Nodal Officer, Hydel Projects has not been created in JREDA nor any post of Nodal Officer, Hydel Projects has been created in the Energy Department, Government of Jharkhand. Thus, the appointment of 4th respondent appears to be against a non-existent post. (iv) Neither the State Government nor JREDA had called for applications from eligible candidates for appointment to the post of Nodal Officer, Hydel Projects. Names were also not called for from any of the Employment Exchange. No advertisement was published in any of the newspaper. And (v) There are allegations of financial irregularity improper investment and mis-appropriation of Government money against the 4th respondent regarding which audit reports have already been submitted. In spite of specific direction given by this Court on 30th April, 2004. 2nd respondent did not produce the agenda for the meeting held on 19th February, 2003, Whether a person has locus standi to prefer a public interest litigation fell for consideration before the Supreme Court in the case of Mehsana Distt. Central Co-op. Bank Ltd. v. State of Gujarat, reported in (2004) 2 SCC 463 . In the said case, the Apex Court held : "......the Acts and rules are made to be followed and not to be violated. When the statute prescribes norms to be followed, it has to be in that fashion. Converse would be contrary to law. Central Co-op. Bank Ltd. v. State of Gujarat, reported in (2004) 2 SCC 463 . In the said case, the Apex Court held : "......the Acts and rules are made to be followed and not to be violated. When the statute prescribes norms to be followed, it has to be in that fashion. Converse would be contrary to law. If there is any allegation of violation of statutory rules which have been brought to the notice of the authorities and if authorities concerned do not perform their statutory obligation, as in the present case, any aggrieved citizen can always bring to the notice of the High Court the inaction of the statutory authorities and in such a event it would always be open to the High Court to pass an appropriate order as deemed fit and proper in the facts and circumstances of the case......" So far as writ of quo warranto is concerned, in the case of B.R. Kapoor v. State of T.N., reported in 2002 (1) JCR 180 : (2001) 7 SCC 231 , the Supreme Court held : "......a writ of quo warranto is a writ which lies against the person, who according to the relater is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possession of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office......." 8. In the present case, there is a specific allegation made that the Clause 2.15 of the Memorandum of Association has been violated and the appointment of 4th respondent has been made by an authority, who has no jurisdiction to appoint. The appointment has been made in violation of Articles 14 and 16 of the Constitution of India. In spite of bringing the aforesaid facts to the notice of the authorities that they have failed to perform their statutory obligation and, on the other hand, they have supported such action. In this background, the present public interest litigation is maintainable at the instance of the petitioner. In spite of bringing the aforesaid facts to the notice of the authorities that they have failed to perform their statutory obligation and, on the other hand, they have supported such action. In this background, the present public interest litigation is maintainable at the instance of the petitioner. As the 4th respondent has been appointed by the Government of Jharkhand by Notification No.-19/Uo(Budgel)-58/ 2001-Part-1-229/Ranchi, dated 8th February, 2003, after his retirement from the services of JSEB. he is more than 58 years age and thereby suffers from disqualification to hold the public office, a writ of quo warranto will also lie as against 4th respondent, who according to petitioner, is not entitled to hold an office of public nature and is an usurper of the office. In this background, the objection raised by the respondents regarding maintainability of this public interest litigation cannot be accepted and therefore, such objection is rejected. 9. Admittedly, the impugned Notification No.-19/Uo(Budget)-58/2001-Part-1-229/Ranchi, dated 8th February, 2003 has not been issued by the State of Jharkhand; it has been issued by the Under Secretary of the Energy Department, Government of Jharkhand. Such appointment having been made without issuance of any advertisement in violation of Articles 14 of the Constitution of India, it cannot be upheld. The appointment of 4th respondent as Nodal Officer is also illegal having been made in violation of Clause 2.15 of the Memorandum of Association of JREDA, which reads as follows : "2.15 The Agency shall be manned in the initial stage by the deputation of officers and staff placed at its disposal by the department of Energy, Government of Jharkhand. In course of time when the scope of work and responsibility of the Agency expands, the Agency shall have the power to appoint officers and staff on its own roll on such terms and conditions which may be decided by the Managing Committee and approved by the Government of Jharkhand. In the event of the Agency taking officer and staff on its own roll such persons both officers and staff already working as deputationist in the Agency shall be considered for absorption in the Agency which the consent of the incumbent giving due weightage to their seniority and experience." Admittedly the 4th respondent was not in the services of the State Government but he was an employee of the JSEB. Therefore, the State of Jharkhand cannot place his service on deputation under JREDA. Further, the 4th respondent having retired on 31st December, 2002, there was no occasion for his deputation. 10. In the circumstances, as the appointment of 4th respondent as Nodal Officer, Hydel Projects made vide Notification No.-19/Uo(Budget)-58/2001-Part-l-229/ Ranchi, dated 8th February, 2003 is illegal, having been made in violation of Articles 14 of the Constitution of India and Clause 2.15 of Memorandum of Association of JREDA; ab initio void having been made against a non-existent post of Nodal Officer by the Under Secretary, Energy Department, Government of Jharkhand, who has no jurisdiction to make such appointment, it cannot be upheld. In view of finding aforesaid, it is not desirable to decide the issue whether the 4th respondent is involved in serious financial irregularity; has made improper investment and mis-appropriation of Government money or not as reported by Audit. It is for the authority concerned to look into the matter. 11. In the result, this public interest litigation is allowed. The Notification No.-19/Uo(Budget)-58/2001 -Part-1-229/Ran chi. dated 8th February, 2003 by which 4th respondent has been appointed as Nodal Officer, Hydel Projects, Jharkhand is set aside. However, in the facts and circumstances, there shall be no order, as to costs. P.K. Balasubramanyan, C.J. 12. I agree.