Shri Amol Prabhakar Joshi vs Maharashtra Electricity ...
2022 Latest Caselaw 2531 Bom

WP 8400-19                                       1                     Judgment

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR.
                      WRIT PETITION NO. 8400/2019
Amol Prabhakar Joshi,
Aged 63 years, Occupation: Retired Government Servant,
R/o 604, Swapnil Trisha Apartments, Plot No.126 A,
Buty Layout, Laxminagar, Nagpur - 440022.                           PETITIONER
                                   .....VERSUS.....
1.      Maharashtra Electricity Regulatory Commission,
        through its Secretary, having its office at
        World Trade Centre, Centre No.1, 13th Floor,
        Cuffe Parade, Colaba, Mumbai 400005.
2.      Deepak Jinvardas Lad, Aged 66 years,
        the Electricity Ombudsman (Nagpur), Maharashtra
        Electricity Regulatory Commission, having his office at
        Plot No.12, Shrikrushna, Vijay Nagar, Chhaoni, Nagpur
        440013 and R/o Mahavir Kalpavruksha, Hazel 602,
        Near Hypercity Mall, Ghod Bunder Road,
        Kasarwadavali, Thane (West) 400615.                       RESPONDENTS

                  Shri R.D. Bhuibhar, counsel for the petitioner.
     Ms Deepa Chavan with Shri P.K. Sathianathan, Shri Ravindra Chile and Shri
                  R.D. Khade, counsel for the respondent no.1.
                             Respondent no.2 served.

CORAM : A. S. CHANDURKAR AND SMT. M.S. JAWALKAR, JJ.

DATE        : 15TH MARCH, 2022.
JUDGMENT :          (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

counsel for the parties at length.

2. The petitioner seeks issuance of a writ of quo warranto against

the second respondent who is holding the post of Electricity Ombudsman

(Nagpur) under the Maharashtra Electricity Regulatory Commission

(Consumer Grievances Redressal Forum and Electricity Ombudsman)

Regulations, 2006 read with the provisions of the Electricity Act, 2003.

WP 8400-19 2 Judgment

3. The facts giving rise to the present proceedings are that on

21.12.2018 an advertisement was issued on behalf of the Maharashtra

Electricity Regulatory Commission (for short, 'MERC') stating therein that

MERC had decided to fill up the post of Electricity Ombudsman (Nagpur).

Applications were invited from amongst (i) retired Judge of the High

Court or (ii) retired Secretary to the Government, or (iii) retired Chief

Executive Officer of Electricity Utilities. The applications were to be

submitted by 18.00 hours on 16.01.2019. The petitioner who retired

from the post of Secretary, Ministry of Urban Department, Government of

Maharashtra as well as the second respondent alongwith seven others had

applied for being considered for appointment to the post of Electricity

Ombudsman. On 22.03.2019 the second respondent was appointed to

the said post with effect from 25.03.2019. The petitioner sought

information under the provisions of the Right to Information Act, 2005 in

the matter of the application submitted by the second respondent. The

petitioner was provided with a statement reflecting the applications

received for consideration for appointment on the post of Electricity

Ombudsman (Nagpur). The same indicated that of the nine applications

received, three applicants including the petitioner and the second

respondent were found eligible for such appointment. It was stated that

the second respondent had retired as Member of MERC and that the

status of the Member of MERC was equivalent to that of the Principal WP 8400-19 3 Judgment

Secretary of the State Government. On receiving this information the

petitioner has filed this writ petition seeking writ of quo warranto

principally on the ground that the second respondent was ineligible to

hold the public office of Electricity Ombudsman (Nagpur) for want of

requisite prescribed qualifications.

4. Shri Ranjeet Bhuibhar, learned counsel for the petitioner

submitted that the office of Electricity Ombudsman was a public office

since the mode, manner and requirements for such appointment were

prescribed under the Electricity Act, 2003 (for short, 'the Act of 2003')

read with the Maharashtra Electricity Regulatory Commission (Consumer

Grievances Redressal Forum and Electricity Ombudsman) Regulations,

2006 (for short, 'the Regulations of 2006'). Inviting attention to Section

181(2)(r) of the Act of 2003 it was submitted that the State Commission

as defined by Section 2(64) of the Act of 2003 constituted under Section

82(1) was empowered to frame guidelines under the Act of 2003. A

distribution licensee was required to establish a forum for redressal of

grievances of consumers in accordance with guidelines specified by the

State Commission in view of Section 42(5) of the Act of 2003. A

consumer who is aggrieved by the non-redressal of his grievances under

sub-Section (5) of Section 42 could make a representation for redressal of

his grievances to the Ombudsman to be appointed or designated by the WP 8400-19 4 Judgment

State Commission in view of Section 42(6) of the Act of 2003. Attention

was invited to the Regulations of 2006 and especially Regulation 2.1(f)

which defines 'Electricity Ombudsman' to mean an Authority appointed or

designated by the Commission pursuant to Section 42(6) of the Act of

2003 who could consider grievances made to the Commission.

Regulation 10 pertaining to Constitution of Electricity Ombudsman and

Regulation 11 specifying the jurisdiction of the Electricity Ombudsman

were also referred to. By Regulation 13 of the Regulations of 2006 the

qualifications of Electricity Ombudsman were prescribed and it was

submitted that for an Electricity Ombudsman to be appointed he ought to

have the qualifications as prescribed. Inviting attention to the

information furnished under the Right to Information Act, 2005 by the

Public Information Officer, MERC it was submitted that the second

respondent did not hold any of the qualifications as prescribed by

Regulation 13 of the Regulations of 2006. He submitted that by

introducing the concept of equivalence, the second respondent had been

held qualified for such appointment. The second respondent had acted as

Member of MERC from August-2014 to May-2018. It was stated that the

status of the Member of MERC was equivalent to that of the Principal

Secretary of the State Government. On that basis, the second respondent

was held to be duly qualified and thereafter appointed. The learned

counsel submitted that it was only the qualifications prescribed by WP 8400-19 5 Judgment

Regulations of 2006 that were required to be possessed and by applying

the criteria of equivalence the second respondent could not have been

held to be duly qualified. Placing reliance on the decision in Prakash

Chand Meena & Others Versus State of Rajasthan & Others [(2015) 8

SCC 484] it was submitted that in the advertisement issued by MERC it

was not indicated that persons holding equivalent qualifications were

eligible to apply. The learned counsel also referred to the decision in

Zonal Manager, Bank of India, Zonal Office Kochi & Others Versus

Aarya K. Babu & Others [(2019) 8 SCC 587] in that regard. Acceptance

of a qualification other than the one notified would amount to denying an

opportunity to those persons who did not apply despite possessing such

equivalent qualification had the same been notified. It was then

submitted that in the reply filed by MERC support of the provisions of

Section 89(2) of the Act of 2003 was sought to be taken. By that

provision the salary, allowances and other terms and conditions of service

of the Chairperson and Members were such as prescribed by the

Appropriate Government. Merely because the Member of the Commission

was being paid monthly salary and allowances as admissible to the

Principal Secretary of the State Government, the same would not entitle

such Member of MERC to claim equivalence to the post of Principal

Secretary of the State Government. It was thus submitted that since the

second respondent did not hold the requisite qualifications as prescribed WP 8400-19 6 Judgment

he had no right to continue as Electricity Ombudsman and a writ of quo

warranto ought to follow.

5. Ms Deepa Chavan, learned counsel for the first respondent-

MERC supported the appointment of the second respondent as having

been made in accordance with law. Inviting attention to Section 82 of

the Act of 2003 and proviso thereto it was submitted that the State

Electricity Regulatory Commission established under Section 17 of the

Electricity Regulatory Commission Act, 1998 (for short, 'the Act of 1998')

and the enactments specified in the Schedule which was functioning

immediately before the appointed date was to be the State Commission

for the purposes of the Act of 2003 and the Chairperson, Members and

other Officers were to continue to hold office on the same terms and

conditions on which they were appointed under those Acts. Referring to

the provisions of Section 19(2) of the Act of 1998 it was submitted that

the salary and allowances payable and other terms and conditions of

service of Members of the State Commission were those prescribed by the

State Government. On 01.06.2000 the State Government through its

Department of Industries and Energy had issued a resolution for

establishing new posts at the State Commission. The post of Member of

the Commission was stated to be equivalent to the post of Principal

Secretary of the State Government. Referring to the provisions of Section WP 8400-19 7 Judgment

89(2) of the Act of 2003 it was urged that the Appropriate Government

namely the State Government had prescribed the salary, the allowances

and other terms and conditions of service of the Chairperson and the

Members by virtue of notification dated 16.03.2005. The same indicated

that the pay-scale admissible to the Electricity Ombudsman/Member of

the Commission was similar to the pay-scale of the Principal Secretary of

the State Government. It was thus submitted that in the light of proviso

to Section 82 and sub-Section (2) of Section 89 of the Act of 2003 MERC

had acted in accordance with law by treating the qualifications of the

second respondent to be as prescribed. Reference was also made to

Section 180(2)(d) of the Act of 2003 to submit that the State Government

was duly empowered to prescribe the salary, the allowances and other

terms and conditions of service of the Chairperson and the Members of

the State Commission under Section 89(2) of the Act of 2003.

It was then submitted that in proceedings seeking issuance of

a writ of quo warranto it was only the legality of the appointment as

made that was required to be examined and not the reason for the

appointment of the second respondent in preference to other applicants

including the petitioner. Such equivalence was being applied from

01.06.2000 and it was not for the first time that the concept of

equivalence had been applied while appointing the second respondent.

The petitioner having participated in the process of selection and having

failed to secure an appointment was disentitled to challenge the WP 8400-19 8 Judgment

appointment of the second respondent. Reliance was placed on the

decision in Ramjit Singh Kardam & Others Versus Sanjeev Kumar &

Others [(2020) 13 SCC 56] to urge that the phrase 'conditions of service'

was to be understood as having wide import. The same would encompass

a wide range of conditions relating to salary, pay-scales, suspension

amongst other conditions. Attention was also invited to the judgment of

the Constitution Bench in PTC India Limited Versus Central Electricity

Regulatory Commission [(2010) 4 SCC 603] and the decision in Sushma

Suri Versus Government of NCT of Delhi [(1999) 1 SCC 330]. It was

thus submitted that since the second respondent was found possessing the

qualifications as 'prescribed' he was duly qualified to hold the post of

'Electricity Ombudsman'. There was no case thus made out to issue a writ

of quo warranto and the writ petition was liable to be dismissed.

6. We have heard the learned counsel for the parties at length

and we have also perused the documentary material placed on record.

We have given due consideration to the submissions made by the learned

counsel. For considering the prayer for issuance of a writ of quo

warranto principally two material aspects would be required to be

examined. Firstly, whether the office held by the person concerned is a

public office and secondly whether such public office is held without any

legal authority. We may in this regard refer to a few leading judgments.

WP 8400-19 9 Judgment

The Constitution Bench in University of Mysore Versus C.D. Govinda

Rao [AIR 1965 SC 491] has observed as under:

"7. .... Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called uon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the executive or by reason of its apathy. It will, thus be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not."

Another Constitution Bench of the Hon'ble Supreme Court in B.R. Kapur

Versus State of Tamil Nadu [(2001) 7 SCC 231] has in paragraph 79

observed as under:

"79. ..... A writ of quo warranto is a writ which lies against the person, who according to the relator 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 possessor of the office does not fulfill the WP 8400-19 10 Judgment

required qualifications or suffers from any disqualification, which debars the person to hold such office..... "

In Mahesh Chandra Gupta Versus Union of India [(2009) 8 SCC 273] it

has been held that "eligibility" is a matter of fact while "suitability" is a

matter of opinion. In a case involving lack of "eligibility" writ of quo

warranto would certainly lie. This legal position has been reiterated

recently in Bharati Reddy Versus State of Karnataka & Others [(2018) 6

SCC 162]. Keeping the aforesaid position in mind the challenge as raised

to the appointment of the second respondent can be considered.

7. On considering the first requirement that the office in

question ought to be a public office, it has been held in Dr. P.S.

Venkataswamy Versus University of Mysore [AIR 1964 Mysore 159] that

a public office is a one created by the Constitution of India or by any

Statute and invested with the power or charged with the duty of acting in

execution or in enforcement of law. Such office may either be an elective

office or one in respect of which a nomination is made or appointment is

made under a Statute. The question as to issuance of quo warranto in

the context of the post of Electricity Ombudsman under the Act of 2003

need not detain us for the reason that the Hon'ble Supreme Court in

Rajesh Awasthi Versus Nandlal Jaiswal & Others [(2013) 1 SCC 501]

considered the correctness of the judgment of the Allahabad High Court

of issuing a writ of quo warranto holding that the appellant therein had WP 8400-19 11 Judgment

no authority to continue as Chairperson of the Uttar Pradesh State

Electricity Regulatory Commission on the ground that the selection

committee had failed to comply with the provisions of Section 85(5) of

the Act of 2003. It is thus clear from the aforesaid that the office of

Electricity Ombudsman is a public office under the Act of 2003 and

therefore the first requirement for considering the prayer for issuance of

writ of quo warranto stands satisfied.

8. The second requirement as to whether the office held by the

second respondent is without legal authority or has been made contrary

to the statutory provisions would be the material question in these

proceedings. To consider the same a brief reference to the relevant

statutory scheme would be required to be made. Section 2(64) of the Act

of 2003 defines the expression 'State Commission' to mean the State

Electricity Regulatory Commission constituted under Section 82(1) of the

Act of 2003. Section 82 of the Act of 2003 provides for constitution of State

Commission to be known as the Electricity Regulatory Commission and it

is a body corporate having perpetual succession. Under Section 42(5) of

the Act of 2003 every distribution licensee is required to establish a forum

for redressal of grievances of consumers in accordance with the guidelines

as may be specified by the State Commission. Under Section 42(6) of the

Act of 2003 any consumer who is aggrieved by non-redressal of his WP 8400-19 12 Judgment

grievances under sub-Section (5) can make a representation for the

redressal of his grievance to the Authority to be known as Ombudsman to

be appointed or designated by the State Commission. Under Section 180

of the Act of 2003 the State Government is empowered to make rules for

carrying out the provisions of the Act of 2003 while under Section 181 of

the Act of 2003 powers are conferred on the State Commission to make

regulations consistent with the Act of 2003 and the rules generally to

carry out provisions of the Act of 2003. Such powers include the power

to make guidelines under Section 42(5) in view of the provisions of

Section 181(2)(r) of the Act of 2003. Under Section 181(2)(s) of the Act

of 2003 the State Commission is also required to prescribe the time and

manner for settlement of grievances under Section 42(7).

9. Acting under the aforesaid powers, MERC has made the

Regulations of 2006. Regulation 2.1(f) defines 'Electricity Ombudsman'

to mean an Authority appointed or designated by MERC in pursuance of

Section 42(6) to whom any consumer who is aggrieved by the non-

redressal of his grievances by the Forum may make a representation.

Regulation 10 prescribes for the constitution of Electricity Ombudsman

and the Electricity Ombudsman as appointed is entitled to hold office for

a period not exceeding three years. It is permissible to extend the tenure

of the Electricity Ombudsman for a further period not exceeding two

years subject to the age limit of seventy years. Regulation 13 of the WP 8400-19 13 Judgment

Regulations of 2006 prescribes the qualifications of the Electricity

Ombudsman and said Regulation reads thus:

"13: Qualification:

The Electricity Ombudsman shall be constituted from amongst a retired Judge of a High Court, a retired Secretary to the Government, or retired Chief Executive Officer of an electricity sector utility. "

It is seen from Regulation 13 of the Regulations of 2006 that the

Electricity Ombudsman should be from amongst a retired High Court

Judge or a retired Secretary to the State Government or retired Chief

Executive Officer of an Electricity Sector Utility. According to the

petitioner, the second respondent does not possess any of the three

requirements as prescribed since the second respondent is neither a

retired Judge of a High Court, a retired Secretary to the State

Government or a retired Chief Executive Officer of an Electricity Sector

Utility. As per the information provided to the petitioner under the Right

to Information Act, 2005 experience of the second respondent in the

context of Regulation 13 of the Regulations of 2006 is stated to be as

under:

"1) Retired as Member at Maharashtra Electricity Regulatory Commission (From Aug 2014 - May 2018)

2) Electrical Consultant - CIDCO (From Nov 2013 -

         Aug 2014)
         3)          Advisor Contract Management - Orange City
         Water Pvt. Ltd. Nagpur (From July 2013 - Oct 2013)
         4)          Retired as Chief Engineer at MSEDCL (From 1974
         to 2011)"
 WP 8400-19                                   14                       Judgment

It is thus evident from the experience gained by the second respondent

that he was Member of MERC from August-2014 to May-2018. It is this

experience that has been taken into consideration by MERC while

appointing the second respondent. In the remarks column against the

name of the second respondent it has been stated as under:-

"Eligible Shri D.J. Lad was Retired as Member of Maharashtra Electricity Regulatory Commission. The Status of the Member of the Commission is equivalent to that of the Principal Secretary of the State Government.

As per the Section 89(5)(a) and (b) of EA, 2003, retired member of the Commission shall not accept any commercial employment for a period of two years from the date of he ceases to hold such office and not represent any person before the Central Commission or any State Commission in any manner."

10. According to the petitioner, the second respondent does not

possess the requisite experience/qualification prescribed under

Regulation 13 of the Regulations of 2006. This position is sought to be

countered by MERC by stating that it has proceeded to consider the

position/status of the Member of the Commission to be equivalent to that

of the Principal Secretary of the State Government. The further fact that

the petitioner was Secretary at the Ministry of Urban Development of the

State Government from April-2008 to June-2010 is also not disputed. It

would therefore be necessary to consider whether MERC by treating the

status of the Member of the Commission to be equivalent to the Principal WP 8400-19 15 Judgment

Secretary of the State Government is legally justified in doing so. To

substantiate its stand in that regard, MERC has sought to rely upon the

provisions of Section 19(2) of the Act of 1998. As per that provision, the

salary and the allowances payable to and other terms and conditions of

service of Members of the State Commission would be such as may be

prescribed by the State Government. With the coming into force of the

Act of 2003, the Act of 1998 stood repealed by virtue of Section 185(1) of

the Act of 2003. Section 89(2) of the Act of 2003 provides for the term of

office and conditions of service of Members of the Commission. It reads

as under:-

"89(2): The salary, allowances and other terms and conditions of service of the Chairperson and Members shall be such as may be prescribed by the Appropriate Government:

Provided that the salary, allowances and other terms and conditions of service of the Members, shall not be varied to their disadvantage after appointment. "

Reliance was placed on the proviso to Section 82(1) of the Act of 2003 to

contend that the State Commission established under the Act of 1998 and

the enactments specified in the Schedule that was functioning before the

appointed date would be the State Commission for the Act of 2003 and

the Chairperson and Members would continue to hold the office on the

same terms and conditions on which they were appointed under those WP 8400-19 16 Judgment

Acts. Under Section 180(2)(d), the salary, the allowances and other

terms and conditions of service of the Chairperson and the Members of

the State Commission under Section 89(2) of the Act of 2003 can be

provided for by the State Government by making rules. In that context,

reference is made to Government Resolution dated 01.06.2000 issued by

the Industries and Energy Department of the State Government.

Thereunder, sanction was granted to the creation of twenty seven posts at

MERC. It was stated that as regards the post of Chairperson, the same

was with the status of Principal Secretary while the post of Member of the

Commission was of the status of Chief Secretary. It is on the aforesaid

statutory basis that MERC seeks to sustain the appointment of the second

respondent as Electricity Ombudsman. To reiterate, while appointing the

second respondent the State Commission found that the status of the

Member of the Commission was equivalent to that of the Principal

Secretary of the State Government.

11. In our view, MERC has misdirected itself by considering the

aspect of equivalence of the status of Member of the Commission to that

of the Principal Secretary of the State Government as satisfying the

qualification as prescribed for the post of Electricity Ombudsman for

reasons more than one:

(a) Firstly, as per Regulation 13 of the Regulations of 2006 the

qualification prescribed for being appointed as Electricity Ombudsman WP 8400-19 17 Judgment

has been clearly spelt out. The appointment can only be from persons

who were either a retired Judge of a High Court, a retired Secretary to

the State Government or a retired Chief Executive Officer of the

Electricity Sector Utility. Regulation 13 does not permit consideration of

any other post as equivalent to those named therein. The use of the

expression "from amongst" is a clear indicator of the fact that said

Regulation is worded in a restrictive nature and does not permit any

other person from categories not mentioned therein to seek appointment

as Electricity Ombudsman. For consideration of a post to be equivalent to

the one indicated in the provision the same should find reference in the

provision itself. Regulation 13 of the Regulations of 2006 does not give

any scope to import the concept of equivalence since it is silent in that

regard.

(b) The advertisement dated 21.12.2018 issued on behalf of

MERC seeks to invite applications from interested persons who satisfy the

qualification prescribed by Regulation 13 of the Regulations of 2006. The

advertisement does not state that the aspect of equivalence would also be

taken into consideration while determining the suitability for

appointment as Electricity Ombudsman. Failure to indicate the likely

adoption of the principle of equivalence in the advertisement is another

reason to hold that it was not permissible for MERC to have considered

the aspect of equivalence. Moreover, Regulation 13 uses the expression WP 8400-19 18 Judgment

"from amongst" which would clearly indicate that said Regulation did not

intend operation of the principle of equivalence. In this regard the

learned counsel for the petitioner is justified in placing reliance on the

decision in Aarya K. Babu & Others (supra). In paragraph 13 thereof it

has been observed as under:-

"13. We are of such opinion in view of the well-

established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the Notification by the employer. Further the Rules as referred to by the learned Counsel for the Respondents is pointed out to be a Rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the Notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the Notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified."

Reliance has also been rightly placed on the decision in Prakash Chand

Meena & Others (supra) where it was held that the advertisement inviting

applications ought to indicate that equivalent qualification holders were

also eligible to apply.

WP 8400-19 19 Judgment

Assuming the applicability of the principle of equivalence, it

goes without saying that if MERC in its advertisement would have

indicated that the principle of equivalence was to be adopted, applicants

possessing such equivalent qualification would have responded to the

same;

(c) The emphasis of MERC in equating the status of the Member

of the Commission to be equivalent to that of the Principal Secretary of

the State Government for the present purpose is flawed. MERC has

sought to rely upon the provisions of Section 82(1) proviso and Section

89(2) of the Act of 2003 which provisions relate to the terms and

conditions of service. The notification dated 16.03.2006 and the

Government Resolution dated 21.03.2009 also would not come to the aid

of MERC for the reason that the same pertain to grant of similar pay-

scales and other emoluments as that being granted to the Chief Secretary

of the Government of Maharashtra. Reliance has also been placed on the

Maharashtra Electricity Regulatory Commission (Conditions of Service of

Chairperson and Members) Rules 2005.

In this regard it is required to be noted that the basic criteria

for determination of equivalence is the nature of duties and

responsibilities attached to the post and not the pay admissible to the post

- E.P. Royappa Versus State of Tamil Nadu & Another AIR 1974 SC 555.

In Vice-Chancellor, Lalit Narain Mithila University Versus Dayanand Jha WP 8400-19 20 Judgment

[AIR 1986 SC 1200], the question considered was whether the post of

Principal and Reader carrying the same pay-scale could be treated to be

equivalent. It was held that the true criterion for equivalence is the status

and nature as well as the responsibility of duties attached to the post.

Even if both the posts carried the same pay-scale, if the responsibilities

and the duties were different they could not be treated to be equivalent.

It was held that since the post of Principal carries higher responsibilities

and duties it cannot be treated to be equivalent to the post of Reader. Yet

again in S.I. Rooplal & Another Versus Lt. Governor Through Chief

Secretary Delhi & Others [1999 Supp.(5) SCR 310], the Hon'ble Supreme

Court after referring to the decision of the Constitution Bench in Union of

India & Another Versus P.K. Roy & Others [(1968) 2 SCR 186] held that

equivalence cannot be judged by the sole fact of equal pay. Ordinarily

four factors which are (i) nature of duties; (ii) responsibilities and powers

exercised by the Officer holding the post; (iii) minimum qualifications

prescribed and (iv) salary of the post are required to be considered. If the

first three factors are fulfilled then merely because the salary admissible

to both the posts is different, the same would not make the post 'not

equivalent'.

12. From the aforesaid settled legal position it becomes clear that

the nature of duties, responsibilities and powers exercised while holding a

post in question is more relevant and determinative than similarity of pay-

WP 8400-19 21 Judgment

scales. MERC by seeking to rely upon the conditions of service and the

similarity of pay-scales and other allowances has sought to apply the

principle of equivalence which in our view would not be sufficient to hold

that such principle of equivalence is attracted. We however clarify that

the larger question as to whether the post of Member of the State

Commission is infact equivalent to the post of Principal Secretary of the

State Government is not being finally determined in these proceedings

and the aforesaid observations are made in the context of the statutory

provisions that were referred to us by the learned counsel for MERC and

especially Regulation 13. It is thus held that for adopting the principle of

equivalence there ought to be statutory support for the same which is

absent in the present case. For these reasons, we find that the decision in

PTC India Limited and Sushma Suri (supra) do not assist the case of

MERC. Moreover, the petitioner is not estopped from challenging the

appointment of the second respondent after participating in the selection

process since he has not challenged the advertisement as issued. His

challenge is to the eligibility of the second respondent in the context of

his qualifications and as held in Mahesh Chandra Gupta (supra) in a case

involving lack of eligibility, writ of quo warranto can be issued. Hence,

the ratio of the decision in Ramjit Singh Kardam & Others (supra) is not

at all applicable to the case in hand.

WP 8400-19 22 Judgment

13. Thus from the aforesaid discussion it becomes clear that the

second respondent does not possess the requisite qualification prescribed

by Regulation 13 of the Regulations of 2006. In absence of there being

any statutory support to apply the principle of equivalence and the same

not being indicated in the advertisement issued by MERC it is found that

the second respondent is not entitled to hold the office of Electricity

Ombudsman under the Act of 2003 and the Regulations of 2006. It is

clear that the appointment of the second respondent as Electricity

Ombudsman is contrary to the aforesaid statutory provisions. The

petitioner is thus entitled for the relief sought by him. A writ of quo

warranto is thus liable to be issued. Accordingly, the following order is

passed:-

(I) It is declared that the second respondent is ineligible to hold the post of Electricity Ombudsman (Nagpur) and his appointment as such by the order dated 22.03.2019 is set aside.

(II) The writ of quo warranto is accordingly issued nullifying the appointment of the second respondent.

14. The writ petition is allowed. Rule is made absolute in

aforesaid terms with no order as to costs.

           (SMT. M.S. JAWALKAR, J.)          (A.S. CHANDURKAR, J.)


APTE
 WP 8400-19                                   23                         Judgment

At this stage, the respondent no.1 prays that the effect of the

judgment be stayed for a period of four weeks. The request is opposed by

the learned counsel for the petitioner. In view that we have taken, we do

not find any ground to stay the operation of the judgment.

The request is therefore rejected.

        (SMT. M.S. JAWALKAR, J.)             (A.S. CHANDURKAR, J.)


APTE




                                                        Signed By: Digitally signed
                                                        byROHIT DATTATRAYA
                                                        APTE
                                                        Signing Date:15.03.2022 16:05