Jharkhand High Court
Girdhar Lal Tripathi vs Tenughat Vidyut Nigam Limited And Ors on 16 April, 2015
Equivalent citations: 2015 (3) AJR 361
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(s) No. 4072 of 2014
Girdhar Lal Tripathi, son of Sri Babulal Tripathi, residing at TVNL Guest House
No. 404A, Ashok Nagar, Road No.5, Post Office & Police StationArgora,
DistrictRanchi, Jharkhand ...... Petitioner
Versus
1. Tenughat Vidyut Nigam Limited (A Government of Jharkhand Undertaking),
having its Office at Hinoo, P.O. & P.S. Doranda, Distt. Ranchi, Jharkhand
2. The State of Jharkhand through the Principal Secretary, Department of Energy
Government of Jharkhand, P.O. & P.S. Doranda, Distt. Ranchi, Jharkhand
3. National Thermal Power Corporation Ltd. through its General Manager (HR),
NTPC Bhawan, Scope Complex, Institutional Area, Lodhi Road, New Delhi
4. Ramautar Sahu, son of (name not known to the petitioner), at present holding
the post of General ManagercumChief Engineer, Tenughat Thermal Power
Station, Lalpania, P.O. & P.S. Tenughat, Distt. Bokaro, Jharkhand..Respondents
with
W.P.(s) No. 5735 of 2014
Ravindra Kumar Gupta, son of Late Kashi Nath Gupta, resident of 301,
Om Shree Enclave, Airport Road, Hinoo, P.O. & P.S. Doranda,
Distt. Ranchi, PIN 834 002 ...... Petitioner
Versus
1. The State of Jharkhand through the Principal Secretary, Department of Energy
Government of Jharkhand, having its office at Project Building, Dhurwa, P.O.
& P.S. Dhurwa, District Ranchi
2. The Deputy Secretary, Department of Energy, Government of Jharkhand,
having its office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, Distt. Ranchi
3. Tenughat Vidyut Nigam Limited (TVNL) through its Managing Director having
its office at Main Road, Hinoo, P.O. & P.S. Doranda, Distt. Ranchi, Jharkhand
4. The Chairman, Tenughat Vidyut Nigam Limited (TVNL) having its office at
Main Road, Hinoo, P.O. & P.O. Doranda, Distt. Ranchi
5. Girdhar Lal Tripathi, son of Sri Babulal Tripathi, residing at TVNL Guest House
No. 404A, Ashok Nagar, Road No.5, Post Office & Police StationArgora,
DistrictRanchi, Jharkhand ..... ...... ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. UPADHYAY
For Girdhar Lal Tripathi : M/s Ritu Kumar, Samavesh Bhanj Deo &
Vikash Kumar, Advocates
For Ravindra Kumar Gupta : M/s Sumeet Gadodia &
Bibhash Sinha, Advocates
For R4 (in W.P.(S) No.4072/14) : Mr. Indrajit Sinha, Advocate
For the State : Mr. Ajit Kumar, A.A.G.
Mr. Saket Upadhyay, J.C. to A.A.G.
Mr. Rajesh Kumar, G.P.V
For TVNL : Mr. Vaibhav Kumar, Advocate
C.A.V. on : 13.02.2015 Pronounced on : 16.04.2015
O R D E R
D.N. Upadhyay, J. Writ Petition No.4072 of 2014 has been filed on behalf of Girdhar
Lal Tripathi for quashing the Office Order No.95/1415 dated 07.08.2014 issued
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under the signature of the Chairman, Tenughat Vidyut Nigam Ltd., Ranchi (for
short hereinafter referred to as 'TVNL') whereby and whereunder the petitioner
has been removed from the post of Managing Director, TVNL with immediate
effect and has been directed to report back to his parent department i.e.
National Thermal Power Corporation, New Delhi (for short hereinafter refereed
to as 'NTPC') and in the mean time Shri Ramavtar Sahu, General Manager cum
Chief Engineer, TVNL, Lalpania within the district of Bokaro shall be the in
charge, Managing Director, TVNL, Ranchi with immediate effect. It is further
prayed that by keeping the impugned Office Order dated 07.08.2014 in
abeyance the writ petitioner may be permitted to discharge his duties in the
capacity of Managing Director, TVNL in view of notification dated 09.05.2014
issued in the name of His Excellency, the Governor of Jharkhand whereby the
petitioner has been appointed on deputation basis for a period of three years or
till further order, whichever may be earlier with pay protection which the
petitioner has been getting in NTPC, New Delhi.
2. That during pendency of W.P.(s) No.4072 of 2014 another W.P.(s)
No.5735 of 2014 has been filed on behalf of Ravindra Kumar Gupta with a
prayer for issuance of appropriate writ in the nature of quo warranto calling
upon the respondents to show cause as to how and under what authority
respondent No.5 was appointed to the post of Managing Director, TVNL because
the appointment of respondent No.5 has been done in violation of Article 14
and 16 of the Constitution of India and selection process adopted by the
respondents is neither transparent nor fair. Further prayer has been made for
issuance of a declaration to the effect that appointment of respondent No.5 as
Managing Director, TVNL is illegal and void ab initio as the same was conducted
in violation of Article 14 and 16 of the Constitution of India and for issuance of
a writ(s), order(s) or direction(s) calling upon the respondents to produce
before the Hon'ble Court the records in relation to appointment of respondent
No.5 as Managing Director, TVNL.
3. That both writ petitions i.e. W.P.(s) No.4072 of 2014 and W.P.(s)
No.5735 of 2014 have been assigned to this Bench by the order of Hon'ble the
Chief Justice, Jharkhand High Court. Since the issues involved in aforesaid writ
petitions appear to be closely related, the writ petitions have been directed to be
tagged together for convenience and better appreciation and the same are
disposed of with this common order.
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4. In W.P.(s) No.4072 of 2014 contention of writ petitioner Girdhar
Lal Tripathi is that he has been appointed as Managing Director, TVNL vide
notification No.1/TVNL 0307 Urja/2012 (Khand) 1033 dated 9.5.2014 and
corrigendum vide notification No.1/TVNL 307 Urja/2012 (Khand) 1035 dated
09.05.2014and on the very same date i.e. on 9.5.2014 he has assumed charge and started discharging his duties. He had also written application (Annexure3) addressing the Chairman cum Managing Director, NTPC, New Delhi, requesting therein to relieve him with immediate effect since he has been appointed as Managing Director, TVNL. Thereafter vide Office Order dated 03.06.2014 (Annexure4) he has been relieved with effect from 03.06.2014. Since the writ petitioner has assumed charge as Managing Director, TVNL on 09.05.2014 itself, a request vide letter 117/1415 dated 11.06.2014 (Annexure5) was written by Sri P.K. Mishra, ESE (HR), TVNL to Sri U. Lal, General Manager (HR), NTPC Ltd. to amend the Office Order dated 03.06.2014 and relieve Sri G.L. Tripathi, the writ petitioner, with effect from 09.05.2014. Accordingly the request made by Sri P.K. Mishra, ESE (HR), TVNL was acceded to vide Office Order dated 05.08.2014 with partial modification in the Office Order No. 01: HRS: HRB:002771 dated 03.06.2014 (Annexure6) and writ petitioner was presumed to be relieved from 09.05.2014 instead of 03.06.2014. In order to clarify news dated 05.08.2014 published in Dainik Jagran in respect of Managing Director, TVNL, letter No.2331415 dated 06.08.2014 (Annexure7) addressed to the Principal Secretary (Urja), Department of Energy, Government of Jharkhand was again written by Shri P.K. Mishra, Electrical Superintendent Engineer, HR, TVNL and it was informed that Shri Girdhar Lal Tripathi, AGM, ERP, NTPC has been relieved from 09.05.2014.
5. That all of a sudden the writ petitioner received Office Order No.95/1415 dated 07.08.2014 (Annexure8) by which the writ petitioner has been removed from office of Managing Director, TVNL with immediate effect and has been directed to report back to his parent department i.e. NTPC, New Delhi on the following charges:
(i) that he had been relieved from his parent department with effect from 03.06.2014 but he had assumed charge as Managing Director, TVNL on 09.05.2014 and the date of his release from his parent department was not correctly disclosed,
(ii) That Sri Tripathi, as Managing Director,TVNL has promoted 4 some engineers of general category against reserved seats of ST candidates on 17.05.2014 in violation of State Reservation Policy. In spite of several directives to review the said promotions, he did not bother to comply the directives.
6. The writ petitioner has challenged impugned Office Order No.95/1415 dated 07.08.2014 on the ground that date of his release from his parent department has been modified vide Officer Order dated 05.08.2014 (Annexure6) in which it is indicated that date of release would be from 09.05.2014 instead of 03.06.2014. So far other charge that he has promoted some engineers of general category against reserved seats is concerned, the writ petitioner has neither been informed about that question prior to impugned order (Annexure8) nor he has been given opportunity to furnish show cause. According to writ petitioner no disciplinary action could be taken against him in course of his deputation as Managing Director, TVNL without the consent of his parent employer i.e. NTPC which is condition precedent for his appointment on deputation and therefore the charges levelled against him are imaginary and created for making a ground for his removal. The appointment of Managing Director, TVNL has been done by His Excellency, the Governor of Jharkhand in accordance with Clause 49(i)(c). In this context it is needless to mention that TVNL is a PSU constituted by the erstwhile State of Bihar and after creation of the State of Jharkhand it is being run by the Government of Jharkhand. The Chairman, TVNL is not empowered to remove Managing Director, TVNL as per "the Memorandum and Articles of Association" of TVNL. The wit petitioner has challenged legality of impugned order (Annexure8) and prayed to allow him to continue to discharge his duties in the capacity of Managing Director, TVNL as per notification dated 09.05.2014 and the impugned order may be kept in abeyance.
7. Respondent No.1 TVNL has filed counter affidavit and has given parawise reply. Besides the parawise reply, it is contended that on the alleged date of joining i.e. on 09.05.2014 the writ petitioner had made a request to the Chairman cum Managing Director, NTPC, New Delhi for his release but no response was received from the Chairman cum Managing Director, NTPC, New Delhi on the date on which, according to him he assumed charge of Managing Director, TVNL. According to admitted documents the writ petitioner was relieved from his parent department with effect from 03.06.2014 and therefore, he was not supposed to assume charge on 09.05.2014 i.e. on the date of 5 notification of his appointment itself. The Electrical Superintendent Engineer Shri Mishra, ESE, HR had no authority to make correspondence with the NTPC for correction in the Office Order (Annexure5) by which the writ petitioner has been relieved from his parent department with effect from 03.06.2014. Likewise, Shri Mishra was also not authorised to make correspondence with the Secretary, Department of Energy, Government of Jharkhand in this regard. The third respondent (NTPC) by its letter dated 19.05.2014 had sent a proposal for sending the writ petitioner on deputation basis as Managing Director, TVNL with a copy of NTPC standard terms and conditions of deputation for acceptance by the Energy department, Government of Jharkhand. By the said letter the third respondent also pointed out that said NTPC standard terms and conditions of deputation shall have to be made with respect to the petitioner and his posting to the first respondent on deputation basis. Therefore, question of release of the petitioner from NTPC to join the first respondent (TVNL) on deputation basis could only be arisen after receipt of an acceptance from the Energy Department, Government of Jharkhand against the said "Standard terms and conditions of deputation". It is pointed out that Department of Energy, Government of Jharkhand had never communicated any acceptance of terms and conditions stipulated and prescribed in the letter dated 19.05.2014 to the petitioner or to NTPC or to the first respondent at any point of time at all. Furthermore, the first respondent never issued any letter of appointment to the petitioner calling upon him to join as Managing Director and before assuming charge the writ petitioner had not taken permission either from the Board of Directors or from the Chairman. The decision of Search cum Selection Committee by which the writ petitioner has been appointed as Managing Director, TVNL is not in accordance with Article 49(i)(c) of 'the Articles of Associations' of the first respondent (TVNL). That article indicates that Managing Director shall be appointed by His Excellency, the Governor in consultation of the Chairman. The admitted position is that the Chairman, TVNL was never consulted with either in course of process of appointment or before finalising candidature of writ petitioner as Managing Director, TVNL or even before making recommendation to His Excellency, the Governor of Jharkhand for appointing the writ petitioner as Managing Director, TVNL. By referring above, it was submitted that the petitioner was never empowered or competent or entitled to assume the office of Managing Director of the first 6 respondent and that claims and contention in that respect preferred by him were and are bad, illegal, void ab initio and nullity. In the circumstances, the petitioner is not entitled to any of the reliefs claimed by him in this writ petition and the same is liable to be dismissed summarily. It is denied that the Government of Jharkhand or the Governor or the Energy Department of Government of Jharkhand, acting unilaterally and without the consent and consultation of the Chairman of the first respondent could appoint any person as Managing Director of the first respondent as alleged. The energy department is solely not entitled to appoint the writ petitioner or make any proposal for appointment of writ petitioner as Managing Director, TVNL and therefore, the appointment of writ petitioner is bad, illegal and void. Since the petitioner was usurping the position of Managing Director without having been lawfully appointed to such post at all and being an interloper, the Chairman, as well as the first respondent were and still are competent and entitled to restrain the petitioner from functioning as socalled Managing Director and all his claims and contentions made in this behalf are bad, illegal and void. It is denied that the order dated 07.08.2014 is liable to be set aside for the alleged or other reasons contended by the writ petitioner. That with reference to paragraph 6 of the petition it is submitted that the same are matters of record which is required to be substantiated thereby, each and every allegation contained in the said paragraph is denied and disputed. In any event, the matters alleged therein are not within the knowledge of the first respondent and it is self evidence that none of the acts, deeds or things said to have been done as alleged in the said paragraph whereafter any reference being made to or to the knowledge of or with the consent and concurrence and acquiescence of the first respondent at all. It is manifest that all the acts alleged in the said paragraph were done behind the back of the first respondent and are therefore not binding upon or enforceable against the first respondent in any manner whatsoever. It is palpable that the first respondent as a Government company was bound to be administered in accordance with its "Memorandum of Articles of Association"
read with the provisions of the Companies Act, 1956 and other applicable statutory provisions. It is denied that the second respondent had any competence or authority or jurisdiction to initiate the processes for seeking a Managing Director in the manner purportedly done without any reference to the first respondent. Furthermore, it is expressly denied that the socalled search 7 cum Selection Committee was formed with the knowledge and consent of the first respondent or any of its activities were binding upon the first respondent in any manner whatsoever. In actual point of fact, the procedures mandatorily enjoined under the Article of Association of the first respondent were not followed and all steps purportedly taken were in gross breach and violation of the Articles and hence void ab initio and nullities.
8. Respondent No.1 has denied each and every allegation or submission contained in Para11 of the writ petition and the same is hereby disputed. The purported letter No.117 dated 11.06.2014 was issued without authority and consent of the Chairman, TVNL and the officer was not empowered to make such correspondence. As a matter of fact said letter was issued in order to create evidence in favour of the petitioner and to facilitate his usurpation in TVNL as Managing Director. That disciplinary proceeding has already been initiated against the signatory of said letter and show cause notice dated 09.08.2014 and 13.08.2014, issued against him for acting in excess of and /or without any authority or jurisdiction whatsoever. It is further contended that the petitioner who is holding no position or post in TVNL has been continuously and forcibly occupying the official guest house and official vehicles of TVNL and he has been issuing directions and letters to the officers and employees of TVNL without authority.
9. The third respondent i.e. NTPC has also filed counter affidavit admitting therein that application of petitioner was forwarded through proper channel and appointment of petitioner on the post of Managing Director, TVNL was duly communicated. Initially conceding the request, petitioner was relieved from his parent department with effect from 03.06.2014 but after receiving correspondence from first respondent the office order was modified to the extent that release of petitioner from his parent department shall be considered from 09.05.2014 instead of 03.06.2014. The correspondences so made by the petitioner and the first respondent have been disclosed. According to answering respondent No.3 it is significant that in relation to deputation, the deputationist shall be governed by NTPC, CDA Rules/ Service Rules and as such the borrowing organisation shall have no right to initiate any proceeding without consent of NTPC in case a person appointed on deputation. The impugned order, therefore, appears to have passed in absence of any disciplinary proceeding and the answering respondent has not received any communication 8 in this connection from respondent No.1. The photo copy of "the standard terms and conditions for deputation" has been annexed with the counter affidavit (AnnexureD). More or less the answering respondent No.3 has supported the case of the petitioner.
10. The respondent No.2 by filing counter affidavit has submitted that present writ petition is devoid of any merit and it is liable to be dismissed. But the appointment of petitioner on the post of Managing Director, TVNL held vide Notification No. 1/TVNL/307 Urja/2012 (Khand) 1033 dated 09.05.2014 and Corrigendum letter No. 1/TVNL/307 Urja/2012 (Khand) 1035 dated 09.05.2014 on deputation basis for a period of three years or till further order, whichever is earlier with pay protection, has been supported. The answering respondent No.2 has further supported the decision of Search cum Selection Committee. The joining of petitioner to the post of Managing Director, TVNL had been communicated by TVNL vide letter No.43/1415 dated 09.05.2014 under the signature of Sri P.K. Mishra, Electrical Superintendent Engineer (HR). It is pointed out that Sri Uttam Lal, AGM (HR), NTPC corporate office vide letter dated 19.05.2014 had submitted "the standard terms and conditions of Deputation" of NTPC employees, to the Deputy Secretary, Energy Department, Government of Jharkhand for acceptance. The relevant paragraphs of said letter are as follows:
"In this connection, please find a enclosed copy of NTPC "Standard Terms and Condition of Deputation" for your acceptance please. The same shall be applicable with respect to Shri G.L. Tripathi on his posting to TVNL, on deputation basis.
On receipt of acceptance of above enclosed NTPC "Standard Terms and Conditions of Deputation" from Energy Department, Government of Jharkhand, Shri G.L. Tripathi will be released from NTPC for joining TVNL, on deputation basis."
As per knowledge of respondent No.2, neither acceptance against "the Standard Terms and Conditions of Deputation" of NTPC employees till the date was given nor communication from the Government of Jharkhand was made in this regard. It is further stated that as per "the Standard Terms and Conditions of Deputation" of NTPC employees, the deputation would be either for a period of three years or till superannuation of the employee, whichever is earlier but as per notification No.1033 dated 09.05.2014, the appointment of 9 petitioner on the post of Managing Director, TVNL was not done in consonance with the said standard terms and conditions and it is contrary to that because the notification of appointment of petitioner on the post of Managing Director, TVNL shall be for a period of three years or till further order, whichever is earlier.
The Department of Energy, Government of Jharkhand has written letter to TVNL to submit the details regarding the allegations levelled against the petitioner but it was not communicated. In the supplementary counter affidavit it is contended that for selection of Managing Director, TVNL, Search cum Selection Committee was constituted vide notification bearing Memo No.2468 dated 11.09.2012 (AnnexureB) and the Committee was headed by the Chief Secretary, Government of Jharkhand whereas Principal Secretary, Finance Department, Chairman, JSEB, Chairman cum Managing Director, HEC, Ranchi, CMD, NTPC or any person nominated by him and Principal Secretary Energy Department shall be the members.
On the point of consultation, as required under Article 49(i)(c) of the Article of Association of TVNL, it is submitted that on the date on which name of petitioner was finalised and recommendation was made for his appointment, i.e. 31.05.2013, Sri Bimal Kirti Singh, Principal Secretary, Energy Department, Government of Jharkhand, Ranchi was also the Chairman of TVNL. The person so selected by the Search cum Selection Committee was finally appointed by the competent authority. So far removal of any part time Director from his office is concerned, the absolute discretion is with the Governor under Article 49(iv). The Chairman and whole time Director may be removed from office in accordance with the terms of appointment.
W.P.(S) No.5735 of 201411. W.P. (S) No.5735 of 2014 has been filed by Ravindra Kumar Gupta who discloses his identity that he is citizen of India and a social worker. He does not have any interest in the post of Managing Director, TVNL but then appointment of respondent No.5 as Managing Director, TVNL has been done in a manner violating of the principles enshrined under Article 14 and 16 of the Constitution of India. The appointment of respondent No.5 is an arbitrary and unfair act of the Government of Jharkhand, therefore, the petitioner has filed this petition for issuance of a writ of quo warranto for ousting an usurper or 10 may be for declaring the appointment of respondent No.5 on the post of Managing Director, TVNL illegal and void ab initio.
12. It is contended that TVNL is a company originally formed at the instance of erstwhile State of Bihar and presently an undertaking of the Government of Jharkhand. TVNL, being a public sector undertaking in the State of Jharkhand has important bearing to the economy of the State of Jharkhand and functioning of TVNL is a matter of concern for the people of Jharkhand. The post of Managing Director, TVNL is a public post which plays a vital role in the functioning of the organisation and therefore, it is imperative that a competent person is appointed as Managing Director and for choosing a competent Managing Director, sufficient opportunity is required to be given to all the citizens who are deserving and having eligible qualification and experience for the post of Managing Director, TVNL. Needless to mention that transparency and fairness in such appointment is essence and the Government is always expected to do the same with all integrity, correctness and accountability.
The Energy Department, Government of Jharkhand had initially published advertisement on 26.05.2006 and 05.10.2009 for appointment of Manging Director, TVNL and the requisites qualifications/experience was stipulated in the advertisements. Thereafter, one Anil Kumar, General Manager, NTPC was appointed and served the TVNL till September, 2012. After repatriation of Sri Anil Kumar, the post remained vacant and Mr. S.N. Verma, Chairman, JSEB had been given the additional charge of Managing Director, TVNL which he held till 08.05.2014. For smooth functioning of TVNL, the Government has decided to initiate process for regular appointment on the post of Managing Director, TVNL and the Energy Department, on 11.09.2012 notified constitution of a Search cum Selection Committee for appointment/deputation of Managing Director, TVNL. The Search cum Selection Committee, instead of advertising the post for inviting applications from eligible candidates has changed the criteria and decided to receive applications from public sector undertakings of Central as well as State Governments who are involved in generating electrical energy. The Search cum Selection Committee has relaxed the eligibility criteria and invited applications from the persons holding post of Additional General Manager in place of General Manager having managerial skill and experience in public sector. At this juncture too, opportunity was not given to other PSUs run by other State Governments or Central Government and 11 the Search cum Selection Committee has taken decision to invite applications only from Damodar Valley Corporation (for short hereinafter referred to as "DVC") and NTPC. The advertisement was not uploaded on Internet nor opportunity has been given to other private companies who have been functioning in power sector.
13. The petitioner has stated that he could learn that vide Office Order bearing No.95/201415 dated 07.08.2014 issued by the Chairman, TVNL, respondent No.5 has been removed from the post of Managing Director, TVNL and repatriated to his parent department. Respondent No.5 instead of honouring the order passed by Chairman, TVNL, challenged said order before this Hon'ble Court vide W.P.(S) No.4072 of 2014 and prayed to allow him to continue on the post of Managing Director, TVNL. Since the petitioner could come to know about the removal order passed by Chairman, TVNL and filing of W.P.(S) No.4072 of 2014 by respondent No.5, the petitioner thought it better to file present writ petition for issuance of writ of quo warranto/declaration that appointment of respondent No.5 on the post of Managing Director, TVNL is void ab initio and illegal and also violating of Articles 14 and 16 of the Constitution of India. It is contended that respondent No.5 is still considering him to be the Managing Director, TVNL and has been occupying the official vehicle, official guest house of TVNL and has also been issuing directions to the staffs and officers of TVNL in the capacity of Managing Director, TVNL. It is contended that TVNL being a public sector undertaking, the post of Managing Director is a public post and therefore has to be filled up in accordance with law and after following fair and transparent process for making such appointment. It is humbly submitted that process of selection by which respondent No.5 has been selected will stand vitiated as because there was no advertisement and due publicity for inviting applications from the eligible candidates at large. The petitioner further submits that it is settled law that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment and any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained. The petitioner further submits that in appointment of Managing Director, TVNL, the respondents cannot deny the equality of opportunity to all eligible candidates, as has been done in the instant case, whereby the entire process has been carried out discreetly in a nontransparent manner. The petitioner further 12 submits that it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates.
14. The Government of Jharkhand respondent No.1 and the Deputy Secretary, Department of Energy, Government of Jharkhand, respondent No.2 have filed their counter affidavit through Madan Mohan Pati Tripathy, Under Secretary, Energy Department, Government of Jharkhand. The stand of the Government of Jharkhand as well as Energy Department is almost same as has been taken by them in W.P.(S) No.4072 of 2014. Almost same fact has been repeated that Search cum Selection Committee was constituted by a notification bearing memo no.2468 dated 11.09.2012 (AnnexureA) and the Search cum Selection Committee by taking all precaution and care and with all fairness and also complying provisions contained under Article 49(i)(c) of "the Memorandum of Article of Associations" of TVNL has appointed Sri Girdhar Lal Tripathi, respondent no.5 as Managing Director, TVNL. It is contended that in course of process of appointment Sri Vimal Kirti Singh, Principal Secretary, Energy Department was also acting as Chairman, TVNL and he was also member in the Search cum Selection Committee and therefore, appointment of respondent No.5 has been done in accordance with Article 49(i)(c) of the Memorandum of Article of Associations of TVNL. The Department of Energy, Government of Jharkhand vide its letter dated 09.02.2013 (AnnexureD) requested DVC and NTPC to suggest name of suitable candidates for the post of Managing Director, TVNL. In reply to the above letter, the NTPC sent a panel of 23 names in the rank of Additional General Manager vide its letter No. 01: HR EB : TVNL : 63 dated 19.03.2013 and the DVC suggested only one name in the rank of Chief Engineer vide its letter No. PLPIS/Deputation (Vol1)/1088, dated 22.03.2013. The Committee shortlisted 8 candidates and held interview of those candidates on 31.05.2013 and unanimously recommended the name of Sri Girdhar Lal Tripathi, Additional General Manager, NTPC for his appointment on deputation for the post of Managing Director, TVNL (AnnexureH).
15. The answering respondent No.1 and 2 have denied the allegations levelled by writ petitioner and submitted that transparency and fairness have always been taken care of during entire selection process. After notification, Sri Girdhar Lal Tripathi has joined on 09.05.2014 as Managing Director, TVNL and the joining was duly communicated to the Government. The answering 13 respondent No.1 and 2 have also given parawise reply in the counter affidavit.
16. That answering respondent No.3 TVNL, and respondent No.4, the Chairman, TVNL have filed their counter affidavit and more or less they have supported the stand taken by the writ petitioner. It is submitted that entitlement of respondent No.5 for the post of Managing Director, TVNL is to be decided by this Hon'ble Court. Since it is a public post, it is to be occupied in accordance with constitutional and statutory provisions/rules. It is contended that Article 49(i)(c) of "the Memorandum of Article of Associations" of TVNL has not been complied with. There was long gap between final selection of respondent No.5 to the post of Managing Director, TVNL and the notification done in this regard. Sri Chamra Linda has been notified as Chairman, TVNL prior to the recommendation made by Energy Department was given final seal by His Excellency, the Governor. It is pointed out that notification to the appointment of respondent No.5 was issued on 09.05.2014 whereas the Chairman, TVNL has started officiating since from 23.11.2013 but he was never consulted with. Thus, it is clear that appointment of respondent No.5 as Managing Director, TVNL has not been done in accordance with "the Memorandum and Articles of Association" of TVNL. It is submitted that rules of game cannot be changed after the game has begun. The Committee has no right to change the eligibility criteria while appointment process had begun. It is submitted that post of Managing Director, TVNL being a public post which can only be filled pursuant to public advertisement following the mandate of Article 14 of the Constitution of India affording equal opportunity to all eligible candidates to apply for the post. It is pointed out in the counter affidavit that despite the order of removal issued by the Chairman, TVNL respondent No.5 in an illegal manner consciously and continuously has been using the official vehicle bearing registration No.JH 01 AB 9705 and also sending orders/threatening emails to the officials of TVNL (email sent Annexure B series).
17. Sri Girdhar Lal Tripathi, writ petitioner in W.P.(S) No.4072 of 2014 has been impleaded as respondent No.5 in the present writ petition and he has filed counter affidavit stating therein that he has been appointed as Managing Director, TVNL, vide notification No.1033 dated 09.05.2014 and on the date of notification itself he has assumed the charge. He has been appointed after due process and he is quite eligible for the said post. The vacancy was widely published in the internet website of NTPC and DVC and after perusing the same 14 several candidates had applied and after shortlisting the names forwarded through proper channel, the Search cum Selection Committee had shortlisted eight names including name of answering respondent. He had appeared before the Interview Board and after considering his eligibility, qualification and experience, the Committee has recommended his name for his appointment on the post of Managing Director, TVNL and after getting final seal from His Excellency, the Governor of Jharkhand, he has been appointed. It is contended that Public Enterprises Selection Board (for short hereinafter referred to 'PESB'), Government of India (Department of Personnel Training) makes selection for almost all board level posts of Central Public Sector Enterprises and there also vacancy are filled up by inviting applications from targeted groups only. It is submitted that answering respondent No.5 fulfilled the eligibility criteria for appointment to the post of Chairman cum Managing Director and ScheduleB CPSE's including CCL, WCL, MCL etc. These organisations are much larger than TVNL. The selection process has been done in conformity with "the Articles of Association" through Search cum Selection Committee. It is pointed out that present writ is not maintainable in its present form and the writ petitioner has given his incorrect identity. As a matter of fact, he is supplier of TVNL and he has no right to file present writ application making prayer to quash the appointment of answering respondent No.5. So far experience of respondent No.5 is concerned, he has stated that he is having more than four years of experience in a grade superior to General Manager, TVNL. In fact, on the basis of pay scale only the PESB appoints person on the post of Managing Director. The advertisement given by PESB for filling up a post has been annexed to show the criteria and procedure of appointment. In reply to paragraph No.14 of the writ application, it is contended that it is misconceived. The salary and perks are in line with NTPC and since the respondent is high rank officer in NTPC in the basic pay of Rs.51,30073,000/, as such, his salary is also high. In support of such contention, photo copy of last pay certificate issued from NTPC has been annexed (AnnexureC). So far his removal is concerned, the Chairman, without any authority abruptly and arbitrarily issued Officer Order No.95/201415 dated 07.08.2014 though power to remove the Director is indicated in Article 49(iv) of "the Articles of Association" of TVNL and it is only the Governor of Jharkhand who is having authority to remove a Director from his office. The Government of Jharkhand is still recognising the respondent as Managing 15 Director, TVNL in their official correspondences which is evident from letter No.2107 dated 30.09.2014 and in that view of the matter, the order dated 07.08.2014 issued under signature of Chairman is illegal and not sustainable in the eye of law. The answering respondent No.5 has given parawise reply in his counter affidavit.
18. Learned counsel appearing for Mr. G.L. Tripathi, respondent No.5 in W.P.(S) No.5735 of 2014 has raised following primary objection:
(i) That petitioner Ravindra Kumar Gupta was not the aspirant for the post and he has no locus standi to file a petition for issuance of writ of quo warranto to quash the appointment of respondent No.5. He is not a social worker but a supplier of goods in TVNL, and
(ii) That the petitioner has shown his knowledge about office Order No.95/201415 dated 07.08.2014, issued under the signature of Chairman, TVNL by which Sri Girdhar Lal Tripathi has been removed from the post of Managing Director, TVNL and directed to report to his parent department. If that being so, writ of quo warranto praying to quash the appointment of Sri Girdhar Lal Tripathi is not maintainable and in this regard judgment report in 1965 AIR (SC) page 491 (Para 6 and 7), (2014) 1 SCC page 161 and (2013) 1 SCC page 501 have been referred.
19. Before answering this question, it is reiterated that Sri Girdhar Lal Tripathi has challenged the Office Order dated 09.05.2014 issued by the Chairman, TVNL by which he has been removed from the post of Managing Director, TVNL in W.P.(S) No.4072 of 2014 and during pendency of it writ petition W.P.(S) No.5735 of 2014 has been filed by Sri Ravindra Kumar Gupta by which the petitioner has challenged the appointment of Sri Girdhar Lal Tripathi to the post of Managing Director, TVNL and prayed to issue writ of quo warranto and both the writ applications have been tagged together for better appreciation in the matter.
To answer the objection raised, the very first para of the counter affidavit filed by R5 in W.P.(S) No.5735 of 2014 is required to be referred in which Sri Girdhar Lal Tripathi says that he is presently posted and working as Managing Director, TVNL. In the later part of the counter affidavit it is contended by him that R1 and R2, the State of Jharkhand and Department of Energy, Government of Jharkhand have been recognising him as Managing Director, TVNL even after issuance of impugned office order No.95/201415 16 dated 07.08.2014. Besides the above, R3 and R4 i.e. TVNL and its Chairman in their counter affidavit have annexed letters and copy of emails issued by Sri G.L. Tripathi, R5 in which he has shown him Managing Director, TVNL and had given directions in that capacity. He has also given directions to bank authorities in the month of January, 2015, during pendency of these writ petitions and issuance of these letters and directions has not been denied by him. In that view of the matter, he has still been pretending himself to be the Managing Director, TVNL and if it is so, the first objection raised by R5 has no leg to stand. At the same time he cannot breath hot and cold.
So far locus standi of petitioner Sri Ravindra Kumar Gupta against filing of writ of quo warranto is concerned, the Apex Court in number of decisions have observed that action of Government is always accountable to public at large. The filling up of public post, if done against statutory provisions/rules, any citizen has right to challenge the appointment by way of writ of quo warranto. In this regard in the judgment reported in (2013) 1 SCC 501 in the case of Rajesh Awasthi Vrs. Nand Lal Jaiswal at paragraph 31 it has been held as under: "31. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi V. Speaker."
In view of the above, the primary objections regarding maintainability of W.P.(S) No.5735 of 2014 stands overruled.
W.P.(S) No.5735 of 201420. Since the primary objection raised by R5 has been ruled out, I feel it desirable to deal with merits of W.P.(S) No.5735 of 2014 at first. Now, I would like to place admitted facts and circumstances available on record and the same are as follows:
(i) The post of Managing Director, TVNL became vacant from September, 2012 when the then Managing Director Sri Anil Kumar left the post and returned to his parent department i.e. NTPC.
(ii) For filling the post of Managing Director, TVNL, Search cum 17 Selection Committee vide notification No.2468 dated 11.09.2012 was constituted.
(iii) The post of Managing Director, TVNL has not been advertised in the news papers having wide circulation nor it was uploaded on the internet.
(iv) The Search cum Selection Committee invited applications from the candidates eligible for the post as per the criteria through proper channel only from NTPC and DVC.
(v) The Committee received applications from 23 candidates through proper channel from NTPC and one application from DVC. The Committee shortlisted applications of seven candidates out of 23 candidates received from NTPC and single application received from DVC and invited those eight candidates including Sri Girdhar Lal Tripathi to appear for interview. After concluding process, the Committee unanimously decided to recommend name of Sri Girdhar Lal Tripathi for the post of Managing Director, TVNL on 31.05.2013.
(vi) Sri Chamra Linda has been appointed as Chairman, TVNL vide official notification No.2985 dated 20.11.2013 and he had assumed charge on 23.11.2013.
21. The file no.1/TVNL0307/Urja/2012 has been opened by Energy department, Government of Jharkhand in the context of appointment of Managing Director, TVNL. Considering the request, respondentState has been directed to place aforesaid file before this Court which is available on record. The notesheet, which are important for just decision are required to be referred. As per the notesheet appearing at page 38 the file was placed before Hon'ble the Chief Minister and after perusing the note given by Principal Secretary Vimal Kirti Singh, Hon'ble the Chief Minister has made following query: "bl in ij fu;qfDr ds fy, fu/kkZfjr izfdz;k rFkk vgZrk ls lacaf/kr fu;e@ ifji=@ladYi dh izfr yxkdj lafpr ;kfpdk iqu% mifLFkr dh tk;A "
18Thereafter, on the subsequent page i.e. at page 39 Article 49(i)(c) of "Memorandum of Articles of Association" of TVNL find mentioned and in the notesheet appearing at page 41 it is indicated that for appointment of Managing Director, TVNL, as per "Memorandum of Articles of Association", consultation with the Chairman is essential and appointment of Chairman vide notification No.2985 dated 20.11.2013 (as per page 155/5) has been done and as per page 156/4 Sri Chamra Linda, MLA has assumed charge of Chairman, TVNL with effect from 23.11.2013.
22. The file was placed before His Excellency, the Governor of Jharkhand for giving approval against appointment of Sri Girdhar Lal Tripathi on the post of Managing Director, TVNL. The Office of His Excellency, the Governor of Jharkhand, returned the file with following query vide i=kad & oS/kk & 50@2002 332 jk0 l0 jkWaph dated 12.02.2014: " iz'uxr fu;qfDr gsrq [kqys foKkiu ds ek/;e ls vkosnu vkeaf=r djus dh izfdz;k dk ikyu gqvk Fkk ;k ugha "
The matter was again placed before His Excellency, the Governor of Jharkhand and the Department of Energy succeeded to obtain approval and then presented the format of notification. Consent of the Minister concern has also been obtained vide notesheet at page 48 and finally vide notification No.1033 dated 09.05.2014 Sri Girdhar Lal Tripathi has been appointed on the post of Managing Director, TVNL for three years or till further order.
23. From the reference of admitted facts, notesheets and documents appearing in the concerned file of the State, it is very clear that the post was not advertised in the news papers having wide circulation and persons eligible for the post have not been given opportunity to appear for the competition. In the judgment rendered in the case of University of Mysore Vrs. C.D. Govinda Rao reported in AIR 1965 SC 491 while dealing with the nature of quo warranto it was observed as under: "7. ..... Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding any independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the 19 relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
24. In the case of R.K. Jain Vrs. Union of India reported in (1993) 4 SCC 119 it was observed as under: " ........ that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction. We do not wish to multiply the authorities on this point."
25. In the case of State of Orissa Vrs. Mamata Mohanty reported in (2011) 3 SCC 436 it has been held as under: "35. At one time, this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of Constitution."
26. Respondent No.5 has submitted that it is always not necessary to issue public/open advertisement for filling up the public post. He has referred constitution and object of PESB, a body constituted by Government of India. It 20 is submitted that PESB also accepts application for selection for the post of Chairman and Managing Directors from the selected/target groups as per the requirement indicated in the job description. In order to put force to the submission, appointment process for selecting Chairman and Managing Director, Mahanadi Coalfields Ltd. (MCL) has been filed as AnnexureB with the counter affidavit. I do agree that the PESB is a high power body constituted by the Government of India resolution dated 03.03.1987 which was subsequently amended from time to time, the latest being on 11.11.2008. The PESB has been set up with the objective of evolving a sound managerial policy for the Central Public Sector Enterprises, in particular, to advice Government on appointments to third type management posts. The PESB shall not be mere interview board and it shall, also, constitute itself into a Search Committee to look out for and identify suitable persons who can be appointed to levelI and levelII post in PESB. The policy of Government is to appoint through a fair and objective selection procedure outstanding provisional managerial to levelI and levelII posts and post containing other level, somebody decided by the Government from time to time. Government have also recognized the need to develop a cadre of provisional managers within the public sector. Hence, unless remarkably better candidates are available from outside, internal candidates, employed in the PSEs will be preferred for appointment to board level posts. However, if internal candidates are not available, preference will be given to candidates working in other PSEs either in the same area of business or in other areas. Mobility of managerial personnel among PSEs within the same sector or group with mobility within the public sector as a whole will be encouraged subject to certain limitations. However, in special cases, requirements may be made from the organised services under the Central Government.
The respondent No.5 has referred AnnexureB i.e. the process initiated for selecting suitable candidate for the post of Chairman and Managing Director in Mahanadi Coalfields Ltd. (MCL). Even it is presumed that selection from target group is to be made, the application from eligible candidates could not be restricted to any particular PSEs rather opportunity to other PSEs and if necessary private companies dealing in the field having officious to fulfill the criteria and eligibility, should also be informed for fair and healthy competition to fulfill the post. AnnexureB also indicates that the post was advertised among all Chief Executives of other Central PSUs (including 21 subsidiaries for circulation among the eligible candidates and all Chief Secretaries of State Govt.s / UT's (for circulating the vacancy among Govt. Officers).
Here in the instant case the admitted position is, the applications to fulfill the post of Managing Director, TVNL have been invited only from NTPC and DVC and that do not appear to be in consonance with the policy and object of PESB and therefore, it is well be observed that other enterprises who are having employee of that target group, have not been given opportunity to put forth their candidature.
TVNL being a public sector undertaking of the State Government, the post of Managing Director is a public post and therefore, it has to be filled up in accordance with the law and statutory rules after following fair and transparent process for making such appointment. Admittedly, the post was not advertised in news papers nor it was uploaded on the internet. Due publicity for inviting applications from the eligible candidates at large has not been done. The note sheets appearing from the Government file indicates query on the point of advertisement of the post in news papers was made by His Excellency, the Governor but the reply given by the Department of Energy was not proper. The PSUs of other states dealing in power sector have not been informed for sending applications from suitable candidates. The Chief Secretaries of other State Governments have not been informed to advertise the post in the PSUs dealing in the power sector. Therefore, it could well be said that adherence of Articles 14 and 16 of the Constitution of India which is must in the process of public employment has not been honoured and the process adopted by Search cum Selection Committee and selection of respondent No.5 to the post of Managing Director, TVNL has been made in violation of mandate of Articles 14 and 16 of the Constitution and therefore, it is illegal and cannot be sustained.
27. Now, coming to the next point whether appointment of respondent No.5 has been done in accordance with "the Memorandum of Articles of Association" of TVNL ? Article 49(i) (c) of "the Memorandum of Articles of Association" of TVNL deals with the matter and according to that article appointment of Managing Director/Directors can be done in consultation with the the Chairman, TVNL. The reference of the note sheet of the Government file, as made above in paragraph 21 of this order, indicates that the Hon'ble the Chief Minister had made query whether the required procedure and statutory 22 rules have been complied with or not? Whether selected candidate is eligible and fulfill the criteria or not? In reply to the query further note sheet was given in which reference of Article 49(i)(c) of "the Memorandum of Articles of Association" of TVNL was referred. In the subsequent note sheet it was also indicted that Sri Chamra Linda has assumed charge of the Office of Chairman, TVNL but before recommending the name to His Excellency, the Governor, the Chairman was not consulted with.
In this context, the Energy Department and State Government have taken a plea that Sri Vimal Kirti Singh, Principal Secretary, Energy Department prior to the appointment of Chairman Sri Chamra Linda was acting as Chairman, TVNL but I do not find that in any of the meeting of Search cum Selection Committee, he had represented him as Chairman, TVNL. Even after completing the Selection process i.e. on 31.05.2013 no correspondence or consultation was ever made by the Search cum Selection Committee with Chairman, TVNL. Therefore, it is very clear from the Government file and documents available on record that at no point of time Chairman, TVNL was consulted with for appointment of Sri Girdhar Lal Tripathi as Managing Director, TVNL. It would not be out of place to mention here that before name of Sri Girdhar Lal Tripathi was notified as Managing Director, TVNL, the Chairman Sri Chamra Linda had assumed the Office on 23.11.2013 i.e. much prior to the date of notification. Therefore, the appointment of Sri Girdhar Lal Tripathi to the post of Managing Director, TVNL has not been done in accordance with statutory provisions as according to Article 49(i)(c) of "the Memorandum of Articles of Association".
W.P. (S) No.4072 of 201428. Sri Girdhar Lal Tripathi, petitioner in W.P.(S) No.4072 of 2014 has challenged the Office Order No.95/1415 dated 07.08.2014. Before giving concluding finding, I would like to refer certain events as well as facts and circumstances available on records. It is not disputed that appointment of Managing Director, TVNL could be made in accordance with Article 49(i)(c) of "the Memorandum of Articles of Association" of TVNL.
In the preceding paragraph while dealing with the issue, considering the pleadings and documents available in W.P.(S) No.5735 of 2014, I have mentioned that Chairman, TVNL was never consulted with for the 23 appointment of Sri Girdhar Lal Tripathi on the post of Managing Director, TVNL; be it may either Sri Vimal Kirti Singh the then Principal Secretary, Energy Department, who has claimed that he was also incharge Chairman, TVNL while the post was vacant or be that Sri Chamra Linda, who was appointed as Chairman, TVNL vide notification No. 1 TVNL0102 Urja/20112985, Ranchi dated 20.11.2013 and assumed the Office of Chairman on 23.11.2013, no specific reply to the query made by Hon'ble the Chief Minister was given by the Energy Department in the note sheet. Thus, the situation available on record is leading to a conclusion that the Chairman, TVNL was never consulted with for the appointment of Sri Girdhar Lal Tripathi as Manging Director, TVNL.
29. The NTPC, respondent No.3 had forwarded standard terms and conditions for appointment on deputation to the Government for its acceptance and the condition was, that officers of NTPC could only be relieved after acceptance of aforesaid standard terms and conditions by the borrowing Company/Department/Government. According to counter affidavit filed by the government of Jharkhand, said standard terms and conditions was never accepted. Since the condition precedent was not fulfilled, the presumption would be that Sri Girdhar Lal Tripathi was not relieved, if he was not relieved as per the condition referred above, his joining to the post was without authority. In other words, it could be said that contract for appointment of Sri Girdhar Lal Tripathi to the post of Managing Director, TVNL was not completed between the lending and borrowing company. According to further terms of the lending company, the officer can be appointed on deputation in the borrowing company either for three years or till his superannuation but in the case at hand, appointment of Sri Girdhar Lal Tripathi was for a period of three years or till further order as per notification No. 1033 dated 09.05.2014. Therefore, the period of appointment of Sri Girdhar Lal Tripathi to the post of Managing Director, TVNL is also contrary to the standard terms and conditions of the lending company.
30. It is admitted situation that no formal letter of appointment was issued by TVNL to Sri Girdhar Lal Tripathi to join in the company. The joining was also not communicated by Sri Girdhar Lal Trtipathi to the Chairman, TVNL. The writ petitioner claims that he assumed charge on the date of notification itself i.e. on 09.05.2014 but the admitted position is that he was not relieved from his parent company on that date and therefore, the act committed by him 24 also appears to be in violation of standard terms and conditions of the borrowing/lending company. A request was made by the petitioner to his parent department for relieving him from 09.05.2014 but he has been relieved from 03.06.2014. In this context, correspondence made by ESE (HR) appears to be without authority because on that very date the superior authority i.e. Chairman, TVNL was already officiating. The modification in the relieving order is also without consideration of documents on record. Again, the standard terms and conditions of the lending company would come in picture because standard terms and conditions of the borrowing company was not accepted either by the TVNL or by the Government.
31. I have gone through Article 49(iv) of "the Memorandum of Articles of Association" of TVNL. I feel no hesitation to observe that order impugned is not in accordance with said rule. If the Chairman had had grievance against the functioning of petitioner as Managing Director, TVNL and he wanted to remove him or wanted to point out illegality, if committed by him, that should have been brought to his notice and he should have been given opportunity to explain. For removing the petitioner from post of Managing Director, TVNL, recommendation should have been made to the Governor but it was not done, as required under Article 49 (iv) but then appointment of petitioner was also not done in accordance with statutory rules i.e. according to Article 49(i)(c) of the Articles of Association.
32. I have discussed the pleadings of the parties and documents available in W.P.(S) No.4072 of 2014 and W.P.(S) No.5735 of 2014 in the preceding paragraphs. It is very clear from the discussions made above that appointment of Sri Girdhar Lal Tripathi is violative of Articles 14 and 16 of the Constitution of India and against the statutory rules. The process of appointment adopted by Search cum Selection Committee do not appear to be fair, just and transparent. The correct picture was not brought to the notice of Hon'ble the Chief Minister or His Excellency, the Governor. The Search cum Selection Committee has not adopted the object and principles for which guideline is available in PESB. The contract between lending and borrowing company has not been completed on the alleged date of assuming of charge by writ petitioner. The writ petitioner was not legally relieved by the parent company NTPC. It could well be observed that appointment of Sri Girdhar Lal Tripathi to the post of Managing Director, TVNL is void ab initio. In the 25 judgment rendered in the case of State of Orissa Vrs. Mamata Mohanty reported in (2011) 3 SCC 436 it has been held as under: "37. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
33. Placing reliance on the verdict and considering the facts and circumstances available, the appointment of Sri Girdhar Lal Tripathi to the post of Managing Director vide notification No.1033 dated 09.05.2014 and corrigendum letter No. 1035 dated 09.05.2014 stand quashed. Accordingly, both the writ petitions stand disposed of.
(D. N. Upadhyay, J.)
Jharkhand High Court, Ranchi
A.F.R.
NKC // Dated : 16.04.2015