C. P. George v. State of Kerala

W.P(C).9483/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** **WP(C) NO. 9483 OF 2021** ## **PETITIONER/S:** C.P.GEORGE, AGED 56 YEARS S/O. PROTHASIS P.T., RESIDING AT CHANDRAPURAYIL, MOOZHIKULANGARA P.O., NEENDOOR VIA, KOTTAYAM DISTRICT. BY ADVS. GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POWER AND ENERGY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE SELECTION COMMITEE FOR MEMBER, KERALA ELECTRICITY REGULATORY COMMISSION, K.P.F.C. BHAVANAM, C.V.RAMAN PILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010. (C0RRECTED) (ADDRESS OF R2 IS CORRECTED AS THE SELECTION COMMITTEE FOR MEMBER, KERALA ELECTRICITY REGULATORY COMMISSION, OFFICE OF THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POWER AND ENERGY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001, AS PER ORDER DATED 22/07/2021 IN IA 1/2021) BY ADVS. GOVERNMENT PLEADER VIPIN P.VARGHESE DHANYA T MALLAR KEVIN MATHEW GEORGE 2 W.P(C).9483/2021 ## **OTHER PRESENT:** GP V .VENUGOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).9483/2021 3 ## **JUDGMENT** The writ petitioner retired from the Kerala State Electricity Board as Deputy Chief Engineer and Deputy Safety Commissioner (Generation) Moolamattom, after 34 years of service. He retired on 31.05.2020. The Government, by Ext.P1 notification invited applications to fill up the post of Member of the Kerala State Electricity Regulatory Commission. The Regulatory Commission is constituted under the provisions of the Electricity Act 2003. Section 84 provides the qualification of the Chairperson and Members of the State Commission. According to the petitioner, State Regulatory Commission has got multifarious functions to perform, which under the Electricity Act includes, determination of tariff for generation, supply, transmission and distribution of electricity, regulate electricity purchase and procurement process, facilitate interstate transmission etc. The commission consists of a Chairperson and members. Section 84(1) provides that the Chairperson and members of the State Commission shall be persons of ability, integrity and who have adequate knowledge of, and have shown capacity in dealing with problems relating with Engineering, Finance, Commerce, Economics, Law or Management. 2. Pursuant to the notification, the petitioner had submitted an application. It was alleged by the petitioner that, he apprehends W.P(C).9483/2021 4 that the selection process was not likely to be fair and transparent. It was contended that, under section 85 of the Electricity Act, a selection committee was constituted for selecting a member. It is chaired by a former High Court Judge and two members constituting the committee. They have to recommend two persons for every vacancy. The petitioner alleged that, several proposals mooted by the Kerala Electricity Board were pending before the Regulatory Committee, most of which were proposed by the Deputy Chief Engineer, who was named in the writ petition. It was alleged that the entire process of selection pursuant to Ext.P1 was designed to select the said person as the next member in the above vacancy. To the information of the petitioner, that Deputy Chief Engineer has also submitted his application. It was alleged that the attempt of the Government was to obtain a panel of two persons from the applicants, without undertaking the process of selection by verifying the applications and bio-data. Selection was not proposed to be conducted in a transparent way, bypassing all procedural fairness, which were given a go by. Alleging that the process of selection was not likely to be transparent, the writ petition was filed arraying the committee constituted for the selection of the member, as the second respondent. The main relief sought was to issue a writ of mandamus directing the second respondent selection committee to undertake a meaningful process of selection by interacting with the applicants, W.P(C).9483/2021 5 instead of appointing persons based on bio-data provided by the applicants. 3. Pursuant to the notice, first and second respondents appeared and have filed separate counter affidavits. Government, through its counter affidavit and statement, took up the contention that the entire allegations were false. It was also submitted that the selection process was to be conducted strictly in compliance with the statutory mandate as contemplated under the Electricity Act. 4. According to the Government, applications were invited to the post of member Kerala State Electricity Regulatory Commission and the selection committee was about to start its process. It was stated that the qualifications for appointment of Chairperson of the State Commission were provided under section 84(1) of the Act. Under section 85(1), the State Government was authorized to constitute a committee for selecting the member of the State Commission. The committee consists of a retired Judge as Chairperson, the Chief Secretary of the State and the Chairperson of the Central Electricity Authority/Central Regulatory Commission. It was pursuant to the constitution of above, Ext.P1 notification was issued. 95 applications were received within the prescribed time. They were tabulated in the manner suitable for screening by the selection committee, indicating the name, age, qualifications and experience. It was stated that, usually on the perusal of the entire W.P(C).9483/2021 6 applications with reference to section 84(1) of the Electricity Act, 2003 and after having a detailed discussion in the meeting, the selection committee itself will decide to recommend a panel of two names for the post of Member – KSERC, as per sections 85(4) and 85(5) of the Electricity Act. The contention of the petitioner that the post was reserved for the named Deputy Chief Engineer and the Government was interested to post him as a member bypassing all procedures, was baseless and not true to facts. It was stated that, selection process was continuing, entirely in a free and fair manner. 5. Heard the learned Senior Counsel for the writ petitioner and the learned Government Pleader on behalf of respondent No.1. 6. Vehemently opposing the contentions set up by the learned senior counsel, learned Government Pleader contended that the writ petition was premature, experimental in nature and to pre-empt the selection process. It was also contended that, it was filed to sabotage the process of selection of the candidates in an appropriate manner and to prejudice the court by making reckless allegations. It was further contended that, selection process was transparent and it was done by a high power committee and the process is expected to be transparent. It was also contended that, wild allegations are made by the writ petitioner without any basis. 7. The petitioner, after raising few objections against the selection process and expressing the anxiety that it was not likely to W.P(C).9483/2021 7 be transparent, contended that, under the statute, wide discretion is conferred on the selection committee to select a person without following any procedure. In the absence of specific guidelines laid down by the statute, the Committee was proceeding to exercise their discretion by an objective assessment and to favour person of their choice. Learned Senior counsel contended that, a mere recommendation of two names without proper application of mind can only be an unfair method of selection process. It was contended by the learned senior counsel that the process has to be transparent and it should be patent from the records. 8. The functions of the Regulatory Committee as evident from the Act discloses that, it is vested with multifarious complex functions, which may have considerable bearing on the economy of the State and the generation and distribution policy of the Government. Since they are vested with very crucial function, the selection to the post has also to be done carefully. Consequently, legislature in its wisdom has vested the duty of selecting an appropriate candidate on a high power committee. The constitution of the Committee itself as evident from Section 85(i) of the Act discloses that, it is to be headed by a retired judge of the High Court and the members are the Chief Secretary and also the member of the Central Regulatory Authority of Commission or the Chairman of the authority. Having regard to this, the onerous responsibility that is vested on the selection committee, cannot be W.P(C).9483/2021 8 lightly seen. 9. The petitioner who challenges the process, has based his ground of challenge essentially on his apprehensions and presumptions. Definitely, it is not substantiated by any cogent, definite material. Even though a vague attempt was made to contend that, in identical selections, there has been certain controversial selections, this Court should not be guided by such allegations, unsupported by any material. 10. The learned Government Pleader vehemently contended that, under section 85(5) of the Act, the responsibility cast on the Committee was to ensure that the persons so selected does not have any financial or other interest, which is likely to affect prejudicially his functions. Definitely, though the Statute has specifically referred to this aspect, that does not in any manner reduce further responsibility of the committee to ensure that the qualifications for appointment of a member as provided under section 84(1) are also satisfied. It provides that the Chairperson and members of the State Commission shall be persons of ability, integrity and have adequate knowledge of, and have shown capacity in dealing with problems relating with Engineering, Finance, Commerce, Economics, Law or Management. The Legislature, in its wisdom, by using these terms has thereby prescribed the factors which shall govern the committee in arriving at its conclusion. Definitely, the attempt of the committee should always W.P(C).9483/2021 9 be to select the best two candidates from among the applicants having regard to S.84(1) and S.85(4) and to leave it open to the Government to choose one among them. 11. Definitely, the above exercise is not restricted by any other restriction. The Legislature, in its wisdom, has left it to the discretion of the high power committee to select the most appropriate two persons from among the candidates. This Court in exercise of its Constitutional powers is not expected to sit in appeal over the exercise of that discretion. However, at the same time, the selection process is subject to the judicial review, on grounds of being actuated by malafides, gross violation of Rules and Regulations. 12. In this regard, learned senior counsel for the writ petitioner heavily placed reliance on the decision reported in **Rajesh** ## **Awasthi v. Nand Lal Jaiswal and Others (2012 KHC 4631)** wherein, an identical situation under section 85(5) of the Electricity Act 2003, came in question. In that case, the committee recommended the names of two persons. However, as against one candidate, it was added that the Government shall ensure that the above persons has no financial or other interest which was likely to affect prejudicially his functions as contemplated under section 85(4). The selection was challenged on the ground that, at the time of choice, the candidate was working in an establishment and hence his financial and other interest in that company would prejudicially affect W.P(C).9483/2021 10 his functions. It was further contended that, the delegation and the exercise of this application of mind by the committee to the Government, was a clear case of abdication of function by the high power committee. 13. The Supreme Court after referring to the various provisions of the statute, held that, under the provisions of the statute, the high power committee was bound to select any person of their choice, on a proper evaluation of the entire materials. The Court ultimately concluded that, it had no doubt that the selection of the Chairperson or a member was extremely important, more so, when there is a statutory prescription about the manner in which the committee was required to act. The Supreme Court held that, section 85(1) which provides for the constitution of selection committee to select members of the State Committee indicates that, it is a high powered committee which has been authorized to adjudge all aspects. Regarding the obligation of satisfaction to be arrived at, in the context of Section 85(4), the satisfaction of mind to be arrived at by the Court shall be in relation to the parameters laid down in section 84(1) also. While analyzing the comparative merits of each candidate, section 84(1) also obliges the committee to ensure that the Chairperson and members of the State Commission shall be persons of ability, integrity and who have adequate knowledge of, and have shown capacity in dealing with problems relating with Engineering, Finance, Commerce, W.P(C).9483/2021 11 Economics, Law or Management. Evidently, it is not that any of the above parameters is of prime importance and all are equally important. Definitely, even if the evaluation process is confined to the comparative evaluation on the basis of the bio-data of each candidate, that has to be objectively evaluated and the conclusion arrived at by the authority should reflect that, each of the above parameters were considered by the committee and a comparative evaluation arrived at. Definitely, this has to be borne from the records. It is not the mere objective satisfaction by the committee arrived at in identifying a person, but the process of selection has to be transparent and clear and it should be patent from record that the committee has arrived at its conclusion after proper evaluation of ability, integrity, standing and the knowledge of the person and that, such person has shown the capacity in dealing with problems in relation to the specified fields mentioned in section 84(1). 14. Any one among the above qualification cannot be singularly taken out and given predominance. Definitely, higher qualification and higher experience may prompt the high power committee to choose any candidate to be the best. However, high power committee has to take into consideration the other parameters also, the evaluation of which, should be transparent from the proceedings, to enable the Court to ensure that the process has been fair and transparent. W.P(C).9483/2021 12 15. Though the learned senior counsel for the petitioner vehemently attacked the process contending that, from the counter affidavit it emerges that the committee only proposes to verify the biodata and to evaluate from it, and that the high power authority does not propose to have an interaction with each candidate, this Court leaves it open to the wisdom of the committee, though a proper interaction with the candidate may also help the high power committee in evaluating the comparative merits of the candidate. 16. Regarding the consideration of suitability of a candidate, in **Rajesh Awasthis case** (supra), the Honourable Supreme Court has held as follows: “The high power committee was obliged to satisfy itself, when the legislature has used the word “satisfied”, it has mandated the committee to perform an affirmative act. There has to be recording of reasons indicating satisfaction, may be a reasonable one. Absence of recording of satisfaction is contrary to the mandate/command of the law and that makes the decision sensitively susceptible. It has to be borne in mind that in view of the power conferred on the State Commission, responsibility of section has been conferred on the State Selection Committee. The selection committee is legally obliged to record that it has been W.P(C).9483/2021 13 satisfied that the candidate does not have any financial or other interest which is likely to affect prejudicially his functions as Chairman or Member, as the case may be. The said satisfaction has to be reached before recommending any person for appointment. It would not be an exaggeration to state the abdication of said power tantamounts to breach of Rule of Law because it not only gives a go by to the warrant of law but also creates a dent in the basic index of law.” 17. Having regard to the selection process, the Supreme Court also held that, there was an absence of intellectual objectivity in the process undertaken by the high power committee in that case. It held as follows: “it is manifest in the selection of the appellant that there is absence of “intellectual objectivity” in the decision making process. It is to be kept in mind a constructive intellect brings in good rationale and reflects conscious exercise of conferred power. A selection process of this nature has to reflect a combined effect of intellect and industry. It is because when there is a combination of the two, the recommendations as used in the provision not only serves the purpose of a “lamp in the study” but also as a “light house” which is shining, clear and transparent.” 18. The learned senior counsel further relied on the decision of the Supreme Court in **Union Public Service Commission v.** W.P(C).9483/2021 14 **M.Sathiya Priya and Others (2018 KHC 6280)** wherein the appointment to the cadre of IPS was under the question. The Court, while referring to the significance of the selection process noticed that the Central Administrative Tribunal and High Court while considering the question of suitability of the candidates relied on the grading given in the Annual Confidential Report of the officers at the State level for coming to its conclusion. It was held that the selection committee consists of experts in the field. They have to have an evaluation of the individual merits of the candidates and shall not be governed by the ACRs alone. 19. Having considered the composition of the committee, I have no hesitation in holding that, the high power committee in the nature of it, with its rich experience in the respective fields and expertise on the subjects, will definitely keep the above factors in mind while selecting the ideally suited persons. Having considered the fact that, no specific malafides has been made out in writ petition, nor any definite sustainable ground has been made out and essentially the contention of the petitioner is based on the apprehensions, I do not propose to issue any directions, except drawing the attention of the high power committee to the above, on the firm belief that the committee will keep these factors in its mind in the process of selection of the most appropriate persons. W.P(C).9483/2021 15 20. Pending the proceedings, the petitioner had filed I.A.No.2 of 2021 to bring on record the Chairman of the high power committee as an additional respondent. Even in the affidavit in support of the allegation, no specific allegation is made against the integrity and competence of the chairman. There is nothing also on record as to what prompted the petitioner to file such a petition much after the filing of the writ petition. Nothing new has been brought out in the course of the proceedings which persuaded the petitioner to file that application. I find no basis in seeking an impleadment of the Chairman, which is absolutely unnecessary in the facts of the case. Accordingly, the above interlocutory application is dismissed. Writ petition fails and it is dismissed, however, with the above observations. **Sd/SUNIL THOMAS JUDGE** **Sbna/** W.P(C).9483/2021 16 ## **APPENDIX OF WP(C) 9483/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.A1/8/2020/PD DATED 22.2.2021 ISSUED BY THE GOVERNMENT WITH ENCLOSURES. EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 16.3.2021 WITH COVERING LETTER GIVEN BY THE PETITIONER.