Orissa High Court
Nirmal Maharana & Another vs State Of Odisha And Others on 17 July, 2023
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.2920 of 2014
In the matter of an application under Article 226 and 227 of the
Constitution of India
Nirmal Maharana & another .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : Mr. G.A.R Dora, Sr. Advocate
For Opposite Parties : Mr. A.K. Parija, Sr. Advocate
Mr. S.P. Sarangi, Advocate
Mr.H.K. Panigrahi, ASC
WP(C) No.21747 of 2012
Bhupati Charan Parida & .... Petitioners
others
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : Mr. B. Routray, Sr. Advocate
For Opposite Parties : Mr. A.K. Parija, Sr. Advocate
Mr. S.P. Sarangi, Advocate
Mr.H.K. Panigrahi, ASC
Page 1 of 24
WP(C) No.2920 of 2014
WP(C) No.4953 of 2017
Bishnu Mohan Panigrahi & .... Petitioners
another
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : Mr. S. Das, Sr. Advocate
For Opposite Parties : Mr. A.K. Parija, Sr. Advocate
Mr. S.P. Sarangi, Advocate
Mr.H.K. Panigrahi, ASC
CORAM: JUSTICE V. NARASINGH
Date of hearing : 13.02.2023
Date of judgment :17.07.2023
V. Narasingh, J.
1. In all the Writ Petitions the grievance relates to
cancellation of self-same selection for the post of Diploma
Engineers - Electrical (on contract) by the erstwhile CESU and
fresh advertisement by TPCODL, vide Annexure-4 and 7
respectively, Therefore, they were heard together on the consent of
the parties and disposed of by this common judgment.
1-A. On the consent of the parties, WP(C) No.2920 of 2014 is
treated as the leading case.
2. Heard Mr. G.A.R. Dora and Mr. B. Routray, learned
Senior Advocates for the Petitioners and Mr. Ashok Kumar Parija,
learned Senior Advocate for the Opposite Parties.
WP(C) No.2920 of 2014
3. The Petitioners being successful in the selection held by
the erstwhile CESU for the post of Diploma Engineer - Electrical
(on contract) assail the order at Annexure-4 dated 01.11.2012
cancelling the entire selection process. The said Annexure is quoted
hereunder for convenience of ready reference:
"The Advertisement No.20125 dated 13.06.2011
and consequential selection for the contractual
tenure post of Diploma Engineers- Electrical (on
contract) is hereby cancelled due to unavoidable
reasons."
3-A. It is the further prayer to direct the Opposite Parties 2 and
3, Central Electricity Supply Utility of Odisha (CESU) represented
through its Chief Executive Officer and General Manager, H.R.
CESU, Bhubaneswar, respectively to issue engagement orders in
their favour on the basis of select list prepared and circulated in the
website at Annexure-3.
4. It is further prayed to quash the fresh advertisement dated
26.6.2020 at Annexure-7 relating to the post of Diploma Engineers
(Electrical) issued by the Senior General Manager (HR). TPCODL,
Opposite Parties 5 and 6, Tata Power Ltd. represented through its
CEO & Managing Director and Chief Executive Officer, Tata
Power Central Odisha Distribution Ltd. Bhubaneswar, respectively.
5. For ready reference the prayer in WP(C) No.2920 of
2014 is extracted hereunder:
"xxx xxx xxx
iii) Issue a writ in the nature of mandamus or any other
appropriate writ(s), order(s) directing the Opp. Parties,
particularly Opp. Party Nos.2 and 3 to issue
engagement orders in favour of the petitioners on the
WP(C) No.2920 of 2014
basis of the select list prepared by the Opp. Party Nos.2
and 3 and circulated in the website at Annexure-3
within a reasonable time to be stipulated by this
Hon'ble Court.
iv) This matter is similar to the matter in WP(C)
No.21747/2012. Hence, both the matters may be heard
together.
xxx xxx xxx"
6. The stand of the Petitioners in short is that an
advertisement was floated by the Opposite Party Nos.2 and 3 on
13.06.2011 for selection and engagement of Diploma Engineer
(Electrical) against the advertised vacancies and in terms of
selection, the name of the Petitioners figured in the select list. But,
unfortunately without showing valid reasons whatsoever and on
extraneous consideration such selection was cancelled. It is stated
by the Petitioners that such cancellation being laced with ulterior
reasons is liable to set aside.
7. It is the further stand of the Petitioners that without any
decision of the Board, the H.R. (Human Resources) Department of
Opposite Party No.3 has cancelled the selection of the Petitioners so
also failed to assign any valid reason. The Petitioners stated that
being otherwise eligible in all respect as stipulated in the
advertisement dated 13.06.2011 issued by the erstwhile CESU vide
Annexure-1, they applied for the said posts and were called to
appear in the written examination. After the result of the written
examination, 617 numbers of candidates as against 245 posts were
short listed and were directed to appear for personal interview. The
Petitioners appeared before the interview Board and the final merit
list was published consisting of 203 numbers of candidates
WP(C) No.2920 of 2014
circulated in the website of CESU as against the advertised post of
"245". On the basis of aforesaid select list circulated in the website,
congratulation letters were also issued in the website to the
respective selected candidates including the present Petitioners.
8. However, instead of giving effect to such select list by
issuing appointment orders in favour of the Petitioners, the
Opposite Party Nos.2 and 3 issued impugned notice on 01.11.2012
at Annexure-4, circulating the same in the official website of CESU
that advertisement dated 13.06.2011 and the consequential selection
of the Petitioners for the post of Diploma Engineers - Electrical (on
contract) is cancelled.
9. It is stated by the Petitioners that CESU authorities had
also issued another advertisement for engagement of Junior Artisan
(Trainee) for the recruitment year 2011 inviting applications from
the qualified ITI candidates wherein the total post advertised was
1000. The interview was conducted simultaneously with the post of
Diploma Engineer (Electrical) for which the Petitioners were the
aspirants. Whereas the selected candidates for the post of Junior
Artisan (Trainee) were issued appointment letters yet the
advertisement along with select list for the post of Diploma
Engineer (Electrical) was cancelled without any rhyme and reason.
As such it is stated that the Petitioners have been subjected to
hostile discrimination, as a class.
10. Being aggrieved with the said action of the Opposite
Parties, the Petitioners submitted representations before the Office
of CEO, CESU with the hope of redressal. However, having failed
WP(C) No.2920 of 2014
to get any appropriate redressal from the authority, they were
compelled to approach this Court by assailing the cancellation of
advertisement and selection process consequential thereto on
various grounds including promissory estoppel and discrimination.
11. It is apt to note that in the meantime, with effect from
01.02.2020 CESU has been taken over by Tata Power Central
Odisha Distribution Limited (TPCODL). TPCODL has been
arrayed as Opposite Party Nos.5 and 6 in terms of the order dated
25.11.2020. The same is quoted below :
"xxx xxx xxx
This application has been filed seeking
amendment of the writ petition.
Learned counsel for the petitioner states that
the opposite parties CESU has been taken over by
Tata Power Central Odisha Distribution (TPCOD)
Ltd., therefore, he wants to amend the writ petition as
per the schedule. To which, learned counsel for the
opposite parties have no objection.
Having heard learned counsel for the parties
and considering the facts and circumstances of the
case, the prayer made in this application is allowed.
Let necessary amendments be incorporated in
the body of the writ petition as well as in cause title.
Consolidated writ petition be filed within a week. The
petitioner is permitted to implead TPCOD Ltd. and
Chief Executive Officer, TPCOD Ltd. as opposite
parties no.5 and 6
xxx xxx xxx"
12. The Petitioners have also obtained information under the
RTI Act that posts in the rank of Junior Manager (Electrical) are
still lying vacant. It is further argued by the Petitioners that on the
one hand the authorities have cancelled the advertisement and on
the other, taking into consideration the existence of vacancies, they
WP(C) No.2920 of 2014
have decided to issue fresh advertisement to fill up such posts. And
ex facie issuance of such fresh advertisement lends credence to their
assertion that cancellation of advertisement and selection is mala
fide.
13. Petitioners by placing reliance on the decision of A.P.
Agrawal Vrs. Govt. of NCT of Delhi reported in 2000(1) SLR
(SC) 382 have tried to justify their claim wherein three Judge
Bench of the Hon'ble Apex Court in para no.14 thereof have held
that though a person in the select list has no vested right to be
appointed to the post for which he has been selected but he has a
right to be considered for appointment and at the same time the
appointing authority cannot ignore the select list or decline to make
an appointment. The said paragraph is extracted hereunder:
"14. In R.S. Mittal v. Union of India 1995 Supp. (2)
S.C.C. 230 : 1995(2) SLR 437 (SC) the question arose
with regard to selection of candidates to the post of
Judicial Member, Income-tax Appellate Tribunal. The
selection was made by a Selection Board consisting of
a sitting Judge of this Court. The Selection Board
prepared a panel of selected candidates which
included the name of the appellant before this Court
and sent its recommendations. The candidates who
were at numbers I and 2 in the panel did not accept
the appointment. The Bench observed that though a
person on the select panel has no vested right to be
appointed to the post for which he has been selected
has a right to be considered for appointment and at the
same time the appointing authority cannot ignore the
select panel or decline to make an appointment on its
whims. The Court said that when a person has been
selected by the Selection Board and there is a vacancy
which can be offered to him, keeping in view his
merit position, ordinarily there is no justification to
ignore him for appointment and that there has to be a
justifiable reason to decline to appoint a person who is
WP(C) No.2920 of 2014
on the select panel. However, on the facts of the case,
the Bench did not give any relief to the appellant as he
was only No.4 and no information was available
about the stand of the person who was at No.3 of the
select panel. While reversing the findings given by the
Central Administrative Tribunal to the extent
indicated in the judgment, the Bench dismissed the
appeal but direct the Government to pay cost of the
proceedings to the appellant which was quantified at
Rs.30.000/-."
14. It is argued by the Petitioners that when a person has
been selected by the selection board and there is vacancy which can
be offered to him, there is no justification to ignore him for
appointment. Since the Petitioners appeared in the written test and
came out successful, were called for personal interview and
accordingly after being selected they were issued with
congratulatory letters, it is the bounden duty of the authorities to
issue appointment orders to the Petitioners, particularly in terms of
clause-4 of the advertisement stipulating that on selection they
shall be appointed as Diploma Engineers.
15. The Opposite Party Nos.2 to 4 filed counter affidavit
justifying the stand in cancelling the advertisement and the
selection process and they prayed for dismissing the writ petition.
16. Placing reliance on the counter, it is submitted that the
advertisement published on 13.6.2011 specifically reflected that the
authority concerned reserved/preserved the right to cancel the entire
recruitment and candidate had/has taken part in the selection on
their own will being conscious of such condition. In view of such
clear stipulation in the advertisement, they have the power to cancel
the advertisement at any stage. Therefore, the Petitioners after
WP(C) No.2920 of 2014
participating in the selection pursuant to the advertisement,
especially after accepting such conditions denuded of their right to
challenge the order of cancellation, more particularly on the ground
for non-assigning any reason or the allegations like ulterior motive
etc.
17. Such clause in Annexure-1 (advertisement) vesting the
authority to cancel the selection is quoted hereunder:
".....The management reserves the right to
accept/reject any application on the basis of
prescribed criteria to increase or decrease the number
of positions advertised or cancel the entire recruitment
process and to restrict the number of candidates to be
called for Written Test/Interview, raising the
eligibility standard."
18. It is the further submission of the Opposite Party No.3
that the impugned order under Annexure-4 cancelling the
advertisement is a communication of decision of the Board of
Management through website. It is contended that the Petitioners
have deliberately misled the Court with bald allegations by not
referring to the decision of the Board of Management in its 37th
meeting held on 18.10.2012 where such a decision to cancel the
advertisement and consequential selection process was taken.
19. It is further submitted to justify the necessity to cancel
the selection process that during the selection process, the Apex
Board of the Opposite Party to give effect to electricity reforms
took certain measures to control the loss of different divisions
working in the field of distribution system including the policy of
WP(C) No.2920 of 2014
installation of smart meter etc. which resulted in reducing the
manpower necessitating the impugned cancellation.
20. When the decision in respect of such reforms was
underway, the Opposite Parties went ahead with the selection
process for engagement of Diploma Engineers (Electrical) on
contractual basis. Such selection process of candidates was carried
out simultaneously as per the past experience of utility. However,
Odisha Regulatory Commission in its order dt.23.03.2012 in case
No.93,94,95 and 96 of 2011 while considering the annual revenue
recruitment and retail supply tariffs for the financial year 2012-13
issued direction to the distribution utility to entrust work during
2012-13 to appropriate and suitable BOOT (Build Own Operate
Transfer) operators as per the principle decided by the Commission.
As the Opposite Parties have already entrusted the work to the
franchisees' workers to implement the BOOT model, there was no
necessity on the part of these Opposite Parties to proceed further
with the selection process as per the advertisement dated 13.6.2011
at Annexure-1.
21. Such decision to cancel the advertisement and the
consequential selection process was a conscious decision by the
Opposite Parties which was placed before the Board of
Management for consideration and the Board also concurred with
such decision not to proceed with the selection process for
recruitment to the post of Diploma Engineer (Electrical) (on
contract).
22. Reasons behind taking such decision was due to
introduction of BOOT model and consequently resulted in handing
WP(C) No.2920 of 2014
over almost every aspect of distribution system to franchisees.
Hence, there is no illegality or irregularity or any oblique motive on
the part of the Opposite Parties in cancelling the selection process
of recruitment to the post of Diploma Engineer (Electrical). It was
further stated that even otherwise since posts were to be filled up on
contractual basis, the Petitioners cannot have any vested claim.
23. Opposite Parties have also rebutted the allegation of any
discriminatory approach by giving appointment to Junior Artisan-A
(Trainee) in terms of advertisement where selection process was
allowed to continue simultaneously with that of the process of
recruitment for the post of Diploma Engineer (Electrical) by
submitting that the appointments under Junior Artisan-A (Trainee)
is altogether a separate class by themselves involving a different
procedure of selection holding a base level post where the existence
of such post is highly essential along with franchise holder in tune
with BOOT model and under no circumstances their engagement
can be equated with the present Petitioners who are claimants to the
post of Diploma Engineer (Electrical). The Petitioners and the
appointees under Junior Artisan-A (Trainee) being on a distinctly
different plane keeping in view the nature and requirement of job in
the present system, the allegation of discrimination is without any
substance and liable to be rejected in limine.
24. Similarly, with respect to the engagement of 42 persons
excluding the Petitioners, it has been made clear that such persons
were continuing in different Divisions since long, prior to issuance
of advertisement under Annexure-1 and their selection process as
well as regularization and appointment being not the subject-matter
WP(C) No.2920 of 2014
of dispute in the present case, that cannot have any bearing upon
effective adjudication of the matter.
25. It is apt to state that the said 42 persons have admittedly
not been impleaded as parties to the present lis.
26. In response to the aforesaid grounds raised in the counter
by the Opposite Parties 2 to 4, the Petitioners have submitted a
rejoinder affidavit stating therein that in terms of 27th meeting held
on 20.9.2010, the Board of Management had decided for creation of
245 posts of Junior Engineer/Junior Manager (Electrical) at 2nd
level. Hence, the plea that for implementation of BOOT Model, the
selection process had to be aborted does not stand to reason.
27. The Petitioners questioned that once a decision was taken
by the Board Management of CESU to recruit 245 numbers of
Diploma Engineers (Electrical) by creating the said additional posts
considering its necessity, how the same Board can take a decision to
cancel the recruitment in the subsequent meeting held on
18.10.2012 particularly without assigning any reasons and
cancelling the recruitment without even adverting to the earlier
decision of the Board dated 20.09.2010.
28. Therefore, the Petitioners have alleged malafide and
labelled the impugned cancellation as a colourable exercise
warranting interference. It is further alleged by the Petitioners that
implementation of BOOT model is a serious failure in today's
scenario.
29. They further alleged that 42 candidates appointed in
Diploma Engineer (Electrical) do not have requisite qualifications
WP(C) No.2920 of 2014
and they are the back door entrants with the tacit connivance of the
then authorities of CESU.
30. Such stand was refuted by the Opposite Parties in their
counter. It is stated that in exercise of power conferred under
Section 22 of the Electricity Act, 2003, the Odisha Electricity
Regulatory Commission (OERC) has formulated a scheme for
operation and smooth management of Central Electricity Supply
Utility of Odisha (CESU). The said scheme is in force since
8.09.2006 till date with necessary amendment being carried out
from time to time in terms of the direction of the OERC.
31. In this context it would be apposite to extract paras- 7 and
8 of the counter of the Opposite Parties 2 to 4.
"7 That it is worthwhile to mention here that after the
issuance of the advertisement for commencement of
process of selection, the Commission had also issued
a Notification in its usual course of business for
determination of tariff for the year 2012-13 initiating
a proceeding bearing Case No.93, 94, 95 & 96 of
2011 inviting objections for the above purposes. The
order of which was pronounced on 23.03.2012 after
hearing all the parties participated in the proceeding
and the order of the said proceeding was pronounced
on 23.03.2012 holding/directing the utility and all
other distribution companies in the state for
IMPLEMENTATION OF SMART GRID
SOLUTION (AMR & AMI) IN DISCOMS UNDER
THE BOOT MODEL and was further directed the
order shall be effective on and from 01.04.2012. In
the above context, it is pertinent to draw the attention
of the Hon'ble Court to the relevant paragraphs the
order passed by the Commission in the aforesaid tariff
order, which is quoted herein below for ready
reference.
WP(C) No.2920 of 2014
IMPLEMENTATION OF SMART GRID
SOLUTION (AMR &AMI) IN DISCOMS UNDER
THE BOOT MODEL
"532. While involvement of franchise may continue
particularly in rural and Semi-Urban areas on input
basis with annual pre-defined performance parameters
in terms of AT & C loss reduction and increase in per
input realisation. BOOT model on revenue sharing
basis has to be extended to the loss making divisions,
division being taken as unit. The BOOT model
franchise operator will be responsible for smart
metering replacement by AB cables etc. The details
modalities are to be worked out by the respective
DISCOMs in consultation with the Commission as
per the broad guidelines contained in letter No.DIR
(T)-390/11/2457 dated 30.12.2011 of the
Commission. Each DISCOMS is directed to entrust 3
divisions during 2012-13 to appropriate and suitable
BOOT operators in accordance with broad principles
issued by the Commission in their letter No.DIR (T)-
390/11/2457 dated 30.12.2011"
533. As decided in the meter held on 29.01.2011 for
implementation Smart Grid Operation in BOOT
model in the State, the agencies, organizations willing
to supply install smart meters which can connect/dis-
connect, enhance load remotely, and facilitate meter
reading along with other standard meter features
should be entrusted with supply, installation, billing
and collection and increase in the revenue per input
should be appropriately shared keeping in view their
requirement to recover the cost of capital. Preferably
one or more division should be entrusted to such of
the willing agencies on Build-Own-Operate-Transfer
(BOOT) modality with revenue sharing basis so that
they will have economy of scale to ensure economy in
operation and better performance.
8. That, in view of the order passed by the Hon'ble
Commission as quoted hereinabove, the Board of
Management of the utility have no option except to
implement the order of the Commission which
resulted in cancelling the recruitment process for
adoption of BOOT model which is an effective
WP(C) No.2920 of 2014
measure control the distribution loss of the
Distribution Companies."
32. It is on record that some of the aspiring candidates like
the present Petitioners had approached this Court challenging the
very process of cancellation of advertisement impugned herein.
And withdrew their cases (W.P.(C) Nos.3292/2013, 3293/2013 and
3294/2013) after being convinced that the process of cancellation is
based on relevant consideration. It is stated that no recruitment has
been made in CESU in any cadres after 2011. Further, for the
financial year 2016-17, 2017-18, 2018-19, the CESU has directed
that no fresh appointment and new induction shall take place.
(Reply affidavit by Opposite Parties 2 to 4 in the connected WP(C)
No.21747 of 2012).
33. In support of their submission with regard to right of
participants to claim appointment, Opposite Parties 2 to 6 placed
reliance on the decision of Apex Court in the case of Mohammad
Rasid vrs. Director, Local Bodies, New Secretariat and others
reported in 2020 (2) SCC 582 wherein the Apex Court relying on a
Constitutional Bench decision in the case of Shankarsan Das vrs.
Union of India reported in 1991 (3) SCC 47 held that the persons
aspiring for direct recruitment have no right for appointment merely
because at one point of time the vacancies were advertised. The
candidates cannot claim any right of appointment merely for the
reason that they responded to an advertisement.
34. It is trite law that a candidate seeking appointment to a
civil post cannot be regarded to have acquired an indefeasible right
to appointment to such post merely because of inclusion of his
WP(C) No.2920 of 2014
name in the merit list. Ordinarily the notification merely amounts to
an invitation to qualified candidates to apply for recruitment and on
their selection they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the employer is under no
legal duty to fill up all or any of the vacancies. However, it does not
mean that the prospective employer has the licence of acting in an
arbitrary manner. The decision not to fill up the vacancies has to be
taken bona fide for appropriate reasons. If the vacancies or any of
them are filled up, the employer is bound to respect the comparative
merit of the candidates as reflected in the recruitment and no
discrimination can be permitted.
35. In this context, the Opposite Parties also relied upon the
principle laid down in the case of Jatindra Kumar & others Vs.
state of Punjab and others reported in (1985) 1 SCC 122 wherein
the Apex Court have held as follows:
"........ The notification issued by the Board in this
case was only an invitation to candidates possessing
specified qualifications to apply for selection for
recruitment for certain posts. It did not hold out any
promise that the selection would be made or if it was
made the selected candidates would be appointed. The
candidates did not acquire any right merely by
applying for selection or for appointment after
selection. When the proposal for disbandment of the
Punjab Armed Police Battalion and instead creation of
additional posts for the district police was turned
down by the State Government, the appellants were
duly informed of the situation and there was no
question of any promissory estoppel against the
State".
36. On a conspectus of the materials on record and in the
light of the submission of learned Senior Counsel Mr. Dora and
WP(C) No.2920 of 2014
learned Senior Counsel Mr. Routray for the Petitioners and Mr.
Parija, learned Senior Counsel for the Opposite Parties, the hub of
issues to be resolved are as follows:
A. Whether it is within the judicial purview to
evaluate the action of the authority in cancelling the
advertisement and selection process?
B. Whether in the peculiar facts and circumstances
the action of the Opp. Parties in cancelling the
advertisement as per Annexure 4 decision is correct
when the Opp. Parties have issued another
advertisement on 26.06.2020 under Annexure 7 ?"
37. There cannot be any qualm about the law laid down by
the Constitution Bench of the Supreme Court in Shankarsan Dash's
case (supra), in which it has been held that ordinarily a notification
merely amounts to an invitation to qualified candidates to apply for
recruitment and on their selection, they do not acquire any right to the
post. Unless the relevant recruitment rules so indicate no legal duty is
cast upon the employer to fill up all or any of the vacancies.
38. Though this is the ratio of the case in Sankarsan Dash
(supra), it is indeed hedged with certain further observations which
cannot be overlooked. The Constitution Bench was cognizant of the
fact that there may be certain circumstances in which recruitment
process may not be required to be cancelled. Conscious of this fact,
the Constitution Bench, held and at the cost of repetition it is
reiterated that ordinarily notification merely amounts to an invitation
and the candidates who apply for recruitment do not acquire any right
to the post. However, it does not mean that the employer has the
licence of acting in an arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for appropriate reasons. And if the
WP(C) No.2920 of 2014
vacancies or any of them are filled up then comparative merits of the
candidates has to be taken into account and no discrimination can be
permitted.
39. The law, therefore, is well settled that mere inclusion in
the select list does not confer upon the selectee an indefeasible right to
appointment, but that is only one aspect of the matter. The other is the
obligation of the employer to act in a discernible manner. The whole
exercise cannot be reduced to a farce. The authorities cannot
surreptitiously and without valid reasons nullify the whole exercise
and tell the candidates who have gone though the rigors of selection
that they have no legal right to be appointed since every such
candidate would have the legitimate expectation for being appointed.
40. The order of cancellation of the recruitment process can
never be insulated so as to render it inviolable or beyond the pale of
scrutiny. The law is, if an order has been passed to set at naught the
entire selection process, it has to conform to the twin test of
reasonableness and fairness.
41. The order should be passed bonafide and must be passed
on some concrete and tangible material and certainly it cannot be the
outcome of an arbitrary act imbued with subjectivity.
42. The Constitutional Courts as understood in the common
legal parlance certainly have the power and authority to consider the
efficacy and sufficiency of the grounds and the material in the wake of
which an order of cancellation came into being. In the backdrop of the
WP(C) No.2920 of 2014
above legal position, the sequence of events which resulted in
scrapping the recruitment process has to be scrutinized.
43. The most controversial and at the same time most
fascinating and daunting role of the Court is the exercise of the power
of judicial review. It is commonly viewed with almost "equal amount
of reverence and suspicion". Briefly stated, the Judicial review is the
power of the Court to uphold constitutional values by striking down
any illegal, arbitrary, unreasonable and capricious action of the
authorities. It is a cardinal principle of our constitution that no one,
howsoever, highly placed and no authority, however, lofty, can claim
to be the sole Judge of its power. The judiciary is the interpreter of the
constitution and it is for the judiciary to uphold not only constitutional
values but the ethos and enforce the same being conscious of the
contours of limitation in exercising such power of judicial review. The
power of judicial review is an integral part of our constitutional
system. As repeatedly stated by the Apex Court that if there is one
feature of our Constitution which, more than any other, is basic and
fundamental to democracy and the rule of law, it is the power of
judicial review and it is unquestionably, part of the basic structure of
the Constitution.
44. To arrive at a decision on reasonableness, the Court has
to find out if the authorities have left out relevant factors or allowed
its decision to be clouded by irrelevant factors. The decision has to
conform to the four corners of the law, and not one which no sensible
person could have reasonably arrived at. The decision could be one of
WP(C) No.2920 of 2014
many choices open to the authority but it was for that authority to
decide upon the choice and not for the Court to substitute its view.
45. In this lis, Opposite Parties have justified their action for
necessity to cancel the advertisement and the selection process more
specifically taking a stand that during the selection process, the Apex
Board of the State in the line of the Electricity Act took certain
measures to control the loss of working of different Divisions working
in the field of distribution system including the policy introducing the
installation of smart meter through an operation known as "BOOT"
model. When the decision in this respect was at a fluid stage, the
Opposite Parties went ahead with the selection process for
engagement of Diploma Engineer (Electrical) on contractual basis.
Such selection process of candidates was carried out in right earnest as
per the past experience of utility.
46. However, Odisha Regulatory Commission in its order
dt.23.03.2012 in case No.93,94,95 and 96 of 2011 while considering
the annual revenue requirement and retail supply tariffs for the
financial year 2012-13 passed the direction to the distribution utility to
entrust work division during 2012-13 to appropriate and suitable
BOOT operators as per the principle decided by the Commission and
extracted hereunder:
IMPLEMENTATION OF SMART GRID
SOLUTION (AMR &AMI) IN DISCOMS UNDER
THE BOOT MODEL
"532. While involvement of franchise may continue
particularly in rural and Semi-Urban areas on input
basis with annual pre-defined performance parameters
in terms of AT & C loss reduction and increase in per
WP(C) No.2920 of 2014
input realisation. BOOT model on revenue sharing
basis has to be extended to the loss making divisions,
division being taken as unit. The BOOT model
franchise operator will be responsible for smart
metering replacement by AB cables etc. The details
modalities are to be worked out by the respective
DISCOMs in consultation with the Commission as
per the broad guidelines contained in letter No.DIR
(T)-390/11/2457 dated 30.12.2011 of the
Commission. Each DISCOMS is directed to entrust 3
divisions during 2012-13 to appropriate and suitable
BOOT operators in accordance with broad principles
issued by the Commission in their letter No.DIR (T)-
390/11/2457 dated 30.12.2011"
533. As decided in the meter held on 29.01.2011 for
implementation Smart Grid Operation in BOOT
model in the State, the agencies, organizations willing
to supply install smart meters which can connect/dis-
connect, enhance load remotely, and facilitate meter
reading along with other standard meter features
should be entrusted with supply, installation, billing
and collection and increase in the revenue per input
should be appropriately shared keeping in view their
requirement to recover the cost of capital. Preferably
one or more division should be entrusted to such of
the willing agencies on Build-Own-Operate-Transfer
(BOOT) modality with revenue sharing basis so that
they will have economy of scale to ensure economy in
operation and better performance.
8. That, in view of the order passed by the Hon'ble
Commission as quoted hereinabove, the Board of
Management of the utility have no option except to
implement the order of the Commission which
resulted in cancelling the recruitment process......"
(Paras-7 & 8 of the counter of O.Ps. 2 to 4)
47. As the Opposite Parties have already entrusted the work
to the franchise workers to implement the BOOT model, therefore, the
Opposite Parties decided not to go further with the selection process
as per the advertisement dated 13.6.2011 at Annexure-1. Such
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decision to cancel the advertisement and the consequential selection
process was a conscious decision by the Opposite Parties which action
was placed before the Board of Management for their consideration
and the Board also was of the same opinion not to proceed with the
selection process for recruitment to the post of Diploma Engineer
(Electrical) which has been set in motion. Such decision as stated in
Annexure-A is extracted hereunder:
"Extract of the Minutes of the 37th Meeting of the
Management Board of Central Electricity Supply
Utility of Orissa (CESU) held on 18.10.2012 at 3.30
P.M. in the conference hall of CESU at IDCO
Towers, 2nd Floor, Janpath Bhubaneswar
xxx xxx xxx"
10. Recruitment of Diploma Engineers -
Electrical.
The members perused the memorandum and
after deliberation decided to annul the entire
recruitment process in view of re-organization of
business because of implementation of Smart Grid
Solution for Energy Management & Energy Efficiency
(SGS - EMEE) through engagement of input based
franchisees with incremental revenue sharing (IBF-
IRS) basis under BOOT model"
48. Reasons behind taking such conscious decision was due
to introduction of the BOOT model and consequential handing over of
almost all areas of distribution system except few areas to franchises.
As the decision of the authorities in the considered view of this Court
is ex facie reasonable and does not suffer from any arbitrariness and
the Petitioners have not been able to fortify their accusation of any
oblique motive, there is hardly any scope of this Court to interfere
with such decision. Although the order at Annexure-4 cancelling the
WP(C) No.2920 of 2014
advertisement and consequential selection though refers to the
decision of the Board does not contain such details with regard to the
reason behind cancellation. But the clarification by the Opposite
Parties on record, in the considered view of this Court cannot be said
to be an afterthought.
48-A. The Petitioners have also not taken such stand.
49. As such this Court is persuaded to hold that the Opposite
Parties have acted without any arbitrariness or discrimination contrary
to the claim(s) by the Petitioners, while issuing Annexure 4, the
impugned order of cancellation.
50. Now coming to the citation relied upon by the Petitioners in the
case of A.P. Agrawal Vrs. Govt. of NCT of Delhi reported in
2000(1) SLR (SC) 382, it is evident that the same is distinguishable
on facts. In the case at hand after cancellation of the selection process
together with the advertisement the then Managing Authority of
CESU had never attempted till 2020 to fill up the vacancies against
which the Petitioners had participated the recruitment process.
However, in the case of A.P. Agrawal (supra) the select list was
acted upon in a selective manner. As such the reliance on the said
decision by the Petitioners is misconceived.
51. The challenge of the Petitioners to the fresh
advertisement dated 26th June, 2020 at Annexure-7 relating to the
recruitment for the post of Diploma Engineer (Electrical) issued by the
TPCODL (Opposite Party No.6) is untenable. It was very much within
the domain of TPCODL to take appropriate steps to manage the
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activities as per its own strategy as rightly stated in the additional
counter affidavit filed by Opposite Party No.6. The stand of the
Opposite Party No.6 that it has no liability consequential to the
impugned cancellation of the advertisement also cannot be faulted.
52. It is worth noting that no claim is advanced by the
Petitioners that the CESU had taken any decision to fill up the
vacancies before 01.02.2020, date of TPCODL coming into being.
Therefore, the advertisement at Annexure-7 dated 26th June 2020
issued by the TPCODL cannot revive the right or legitimate
expectation of the Petitioners who had participated in the selection
process during 2011-2012 under the erstwhile CESU.
53. The Writ Petitions being devoid of merit stand dismissed.
There shall be no order as to costs.
(V. NARASINGH)
Judge
Orissa High Court, Cuttack
Dated the 17th of July, 2023/ Pradeep
Signature Not Verified
Digitally Signed
Signed by: PRADEEP KUMAR SWAIN
Reason: Authentication
Location: Orissa High Court
Date: 18-Jul-2023 13:46:44
WP(C) No.2920 of 2014
