WP(C) Nos.14276/2022 & 15463/2022 - The Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association v. State of Kerala; and Bhuvanendraprasad.T.R. v. State of Kerala (High Court of Kerala, Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** ## **WP(C) NO. 15463 OF 2022** ## **PETITIONER:** BHUVANENDRAPRASAD.T.R. AGED 59 YEARS S/O.P.K RAMAN, NYRMALYAM, CRA 30E, POOJAPPURA, THIRUVANANTHAPURAM - 695 012 BY ADVS. S.SUJIN N.N.SUGUNAPALAN (SR.) ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE PRINCIPAL SECRETARY DEPARTMENT OF POWER GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 3 THE CHAIR PERSON SELECTION COMMITTEE (FOR MEMBER SELECTION IN KSERC) OFFICE OF CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001 4 THE MEMBER ( CHIEF SECRETARY) SELECTION COMMITTEE (FOR MEMBER SELECTION IN KSERC) OFFICE OF CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001 5 THE MEMBER (CHAIRMAN CEA) SELECTION COMMITTEE (FOR MEMBER SELECTION IN KSERC) OFFICE OF CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001 6 SECRETARY KERALA STATE ELECTRICITY REGULATORY COMMISSION, K.P.F.C BHAVANAM, C.V. RAMAN PILLAI ROAD VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010 REPRESENTED BY ITS SECRETARY WP(C) Nos.14276/2022 & 15463/2022 2 BY ADVS. ASOK M.CHERIAN VIPIN P.VARGHESE KEVIN MATHEW GEORGE(K/1431/2020) ADARSH MATHEW(KAR/2577/2015) MEERA ELSA GEORGE(K/001893/2021) ROWENA COLETTE DIAS(K/1566/2021) SRI SANTHOSH MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, ALONG WITH WP(C).14276/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.14276/2022 & 15463/2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 WP(C) NO. 14276 OF 2022** ## **PETITIONERS:** 1 THE KERALA HIGH TENSION AND EXTRA HIGH TENSION INDUSTRIAL ELECTRICITY CONSUMERS' ASSOCIATION (REGN.NO.ER.772/86), PRODUCTIVITY HOUSE, HMT ROAD, KALAMASSERY - 683 104, ERNAKULAM DISTRICT, REPRESENTED BY THE GENERAL SECRETARY. 2 GEORGE THOMAS PAKALOMATTOM PARATHOLIL, SKYWINGS AVENUE, KEERTHI NAGAR EXTENSION, EDAPPALLY P.O., ERNAKULAM - 682 024. BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POWER, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE SELECTION COMMITTEE FOR MEMBER KERALA STATE ELECTRICITY REGULATORY COMMISSION, DEPARTMENT OF POWER AND ENERGY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 010, REPRESENTED BY THE SECRETARY. 3 KERALA STATE ELECTRICITY REGULATORY COMMISSION K.P.F.C.BHAVANAM, C.V.RAMAN PILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010, WP(C) Nos.14276/2022 & 15463/2022 4 REPRESENTED BY ITS SECRETARY. 4 B.PRADEEP 'VIPANCHIKA', ANAYARA P.O., THIRUVANANTHAPURAM - 695 029. 5 V.K.MOHANAN FORMER JUDGE, CHAIRMAN, SELECTION COMMITTEE, OFFICE OF THE SECRETARY, DEPARTMENT OF POWER AND ENERGY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 010. 6 B.K.ARYA CHAIRPERSON, CENTRAL ELECTRICITY AUTHORITY, MINISTRY OF POWER, GOVERNMENT OF INDIA, NEW DELHI - 110 001. 7 V.P.JOY, IAS CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY ADVS. SANTHOSH MATHEW ARUN THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, ALONG WITH WP(C).15463/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.14276/2022 & 15463/2022 5 ## **JUDGMENT** This order of mine shall dispose of two Writ Petitions. WP(C) No.14276 of 2022 titled as the Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association and others v. State of Kerala (hereinafter called the first petition) wherein petitioner No.2 George Thomas, a candidate is a party himself. WP(C) No.15463 of 2022 is titled as Bhuvanendraprasad.T.R. v. State of Kerala (hereinafter called the second petition). 2. George Thomas, petitioner No.2, in the first Petition and Bhuvanendraprasad.T.R. Petitioner in the second petition submitted applications in response to the notification dated 22.2.2021 inviting applications for appointment to the post of member of Kerala State Electricity Regulatory Commission to the Chief Secretary specifying certain conditions referred to therein. Having not been shortlisted for the interview have approached this Court on various grounds. 3. The facts in brief are that the Government of Kerala vide notification dated 22.2.2021 invited applications as per the provisions of Section 85 of the Electricity Act, 2003 (hereinafter referred to as “the Act”) for filling up the post of member in the WP(C) Nos.14276/2022 & 15463/2022 6 aforementioned Commission strictly in terms of the provisions of Section 84(1) of the Act specifying not only the eligibility, but ability, integrity and having adequate knowledge, capacity and acumen to deal with the problems relating to Engineering, Finance, Commerce, Economics, Law or Management. The age fixed as per the provisions of Section 89(1) of the Act was that a candidate should have not exceeded 65 years of age. The last date for receipt of the applications was 23.3.2021. The conditions required to be fulfilled by the candidates were many amongst the one, which is relevant for adjudication in the present Writ Petitions is that, a candidate if employee of a State or a Central Government, autonomous bodies, holding judicial positions etc. would forward the application form along with the vigilance clearance and Annual Confidential Report (ACR) for the last three years and in case the applicants who had already and as per condition No.(iii) under the notes, retired from the service of the State/Central Government or autonomous body within the last two years are also required to arrange to submit the ACR for the last three years of service. The pith and substance of the notification for the working or the retired employees was the same viz.a. viz. submission of the ACR for the WP(C) Nos.14276/2022 & 15463/2022 7 last three years. Both the applicants i.e., petitioner No.2 in first Petition and petitioner in the second Petition, had submitted applications. The apprehension expressed by the petitioner in the second Petition primarily was on the ground that he had completed the age of 60 and therefore, he would not be considered for a candidature. Besides the aforementioned ground, it was also alleged that the Committee was not fully constituted as the Chairman did not participate in the proceedings and many candidates selected for final interview had also not complied with the submission of the ACRs which is now evident from the counter affidavit filed by the Kerala State Electricity Board. 4. It was submitted on behalf of Mr.George Poonthottom, learned Senior Counsel that the Selection Committee does not have the power to fix the criteria by shortlisting the candidates as procedure has already been specified in the statute i.e., Section 85 of the Act wherein as per sub-section (5), Selection Committee is required to record its satisfaction whether the candidate have any financial or other interest which is likely to affect prejudicially functions as a chair person or as a member. 5. Sri.B.Pradeep, a candidate who has been brought under WP(C) Nos.14276/2022 & 15463/2022 8 the list of selection for the final interview was already an employee of the Kerala State Electricity Board who had been filing petitions as per Ext.P3 information received under the RTI Act wherein O.P.No.9 of 2020 has been filed by giving approval while exercising the power of Dy. Chief Engineer (Commercial & Planning) on 5.5.2021 and therefore, being the member of the Board was not eligible for having submitted the application for being selected as a member, much less, shortlisted for the interview. Considering the predicament of the petitioner, this Court in the first Petition issued notice to the other side and on 6.5.2022 ordered that the selection process shall not be completed in the second Petition. 6. The Under Secretary to Government, Department of Power has filed an affidavit on behalf of respondents 1 and 2 refuting the contentions of the petitioner and submitted that the Selection Committee consisted of a former Judge of this Court, the Chief Secretary of the Government of Kerala and Chair Person of Electricity Board. A meeting was convened by the Selection Committee through video conferencing on 15.2.2021 whereby the draft notification Ext.P1 was perused and decided to publish the same in one English and one Malayalam newspaper having vide WP(C) Nos.14276/2022 & 15463/2022 9 circulation. 95 applications were received after 23.3.2021. Selection committee convened six meetings on the following dates; 15.2.2021, 23.12.2021, 28.12.2021, 1.4.2022, 12.4.2022 and 5.5.2022. The Selection Committee carved out the criteria for the purpose of recording satisfaction on the basis of the suggestions noted by the Chairman as well as the members as reflected in Ext.R1(d) wherein the chairperson suggested to list out the applications received as list A and list B under the heads candidates having a (i) maximum age limit fixed as 54 years - 61 years, (ii) experience in respective fields to be not less than 25 years and (iii) ACRs/vigilance clearance and having all under list B. It was also decided that the chairperson owing to his ailment was not able to physically attend the meeting and in unison agreed to convene the meeting through online mode/video conferencing. 7. The applicants included in the list A were 53 and list B, 42. On examination of the details i.e. experience in power sector, Annual Confidential Reports and vigilance clearance certificate, 28 applicants were shortlisted. Only 5 among the 28 had furnished both annual confidential reports for three years and vigilance clearance certificate. The Controlling Officers of the applicants WP(C) Nos.14276/2022 & 15463/2022 10 were requested to make available the ACRs for the last three years and vigilance clearance certificate and on the basis of the information received by the Controlling Authority as well as on behalf of the applicants, 17 candidates were shortlisted. The petitioners' names were considered in the list A and list B, but after having examined the details, the names were not included in the list of 17 persons. The reason for not including them was of having not submitted the ACRs for three years. It is further contended that on perusal of the material placed on record vide counter, B.Pradeep had also not submitted the ACR for 1.1.2021 to 30.4.2021 and Kesavadas who retired had also submitted ACR of two years as per the list Ext.R1(E). List of 17 applicants were approved in the fourth meeting of the Selection Committee held on 1.4.2022. The schedule and format of online interview was fixed in the fifth meeting held on 12.4.2022. All the 17 candidates were invited for online interview held on 23.4.2022. On the basis of the interview, a list of five candidates were prepared to be called for interview scheduled to be held on 20.5.2022, but, owing to the interim order passed by this Court, the said exercise had been kept in abeyance. WP(C) Nos.14276/2022 & 15463/2022 11 8. There was no delegation by the Chairman to any third party as the Chairman Sri.V.K.Mohanan owing to ill health had expressed his consent for conducting the online interview as evident from the email dated 17.5.2022 Ext.R1(f). He was very much present in the online meeting held on 5.5.2022 and approved the report of the online interview along with the list of shortlisted candidates. As per Section 85(6) of the Act, no appointment of Chairperson or other member shall be invalid merely by reason of any vacancy in the selection committee, thus the apprehension expressed by petitioner No.2 in the first Petition is far-fetched and a figment of imagination. 9. As far as the allegations of the petitioner in the second Petition that he was not called for the interview on the ground that he had crossed the age of 60 years is only misconceived as no minimum age is prescribed under the Act. Only prescription is of a maximum tenure of five years and maximum age of 65 years to become a member and Chairman of KSERC as per the provisions of Section 89(1) of the Act. The provisions of Section 84 (5) clearly provided that it is in the domain of the Selection Committee to fix the suitable criteria to select a best candidate for the said posts WP(C) Nos.14276/2022 & 15463/2022 12 which has been followed in the present case. Both the petitioners had not fulfilled the criteria of submitting ACRs for a period of three years and thus urged this Court for dismissal of the Writ Petitions. Similar is the argument of Mr.Santhosh Mathew appearing for both the respondents in the petitions No.1 and 2. 10. Mr.George Poonthottam, learned senior counsel, would, in rebuttal, submit that controlling authority of petitioner No.2 in the first petition had submitted/forwarded ACRs of three years to the selection committee on 28.01.2022, but there is no reference of any deliberation or proceedings, thus, entire procedure/steps taken for initiation of interview are vitiated in law. 11. I have heard the counsel for the parties and apprised the paper book. 12. On the last date of hearing, this Court had directed the Government to produce the proceedings of the Selection Committee to ascertain and verify as to whether the allegations in the Writ Petitions are backed by any documentary evidence or otherwise. On examination of the record produced, with the able assistance of the counsel representing the State, this Court has been able to go through the same and of the view that there is no WP(C) Nos.14276/2022 & 15463/2022 13 force or merit in this Writ Petitions. The reason is not one but many. Both the parties have not denied the conditions enumerated in the notification Ext.P1 requirment to fulfill the criteria of having submitted ACRs for the last three years. The aforementioned condition applies to both sitting and retired employees. 13. Petitioner No.2 in the first Petition is working whereas the petitioner in the second Petition had retired. The record produced before this Court reveals that both the petitioners have not fulfilled the criteria prescribed in the notification of having submitted three years of ACR. There is no justification given in the Writ Petitions as to how and in what manner they have not been able to even submit the ACRs. Record do not reveal any submission or receipt of ACRs by the controlling authority of petitioner No.2 in the first petition. The report of the Chairman & Managing Director of KSEB Ext.R1(e) reveals that the petitioner in the second Petition has not submitted Annual Performance Appraisal Report for the period 1.8.2015 to 31.7.2018. The allegation that B.Pradeep had also not submitted the ACR for the period 1.1.2021 to 30.4.2021 as evident from Ext.R1(E) in my view is also no ground to stand for the reason that the notification clearly mentioned WP(C) Nos.14276/2022 & 15463/2022 14 three years that would end on 31.12.2020 whereas he has submitted the ACR for the period 1.1.2018 to 31.12.2020. As regards the allegation viz. a. viz Kesavadas is concerned he had also submitted ACR for the period 1.1.2020 to 31.5.2020. This Court had been given the original copy of the application submitted by George Thomas. Against column 10 the information with regard to ACR is conspicuously absent. The apprehension of the petitioners of having not been shortlisted amongst the other candidates for selection of the member, in my view, is only a figment of imagination and based upon surmises and conjectures. The Division Bench of this Court in _**Venugopalan Nair.K.R. v. State of Kerala in [2015 KHC 638]**_ has held that there is no bar for a member of a Board for submission of the application and for consideration as the member of the Kerala State Electricity Regulatory Commission. 14. The Writ Petitions are devoid of merit and accordingly dismissed. The stay granted by this Court is vacated. Selection Committee is at liberty to initiate the process of selection. This Court confronted Sri.George Poonthottom, learned Senior Counsel regarding the maintainability of W.P(C).14276/22 on behalf WP(C) Nos.14276/2022 & 15463/2022 15 of petitioner No.1. In view of various judgments of the Supreme Court and Division Bench judgment of this Court reported in **Justitia vs. State of Kerala** (W.P(C).36372 of 2017), an association cannot file writ on behalf of any of its members. Hence the writ petition on behalf of petitioner No.1 is dismissed with costs of Rs.15,000/- to be deposited with the Legal Services Committee of High Court. **Sd/-** **AMIT RAWAL JUDGE** csl WP(C) Nos.14276/2022 & 15463/2022 16 ## **APPENDIX OF WP(C) 14276/2022** PETITIONERS' EXHIBITS |Exhibit P1|TRUE COPY OF THE NOTIFICATION| |---|---| ||NO.A1/8/2020/PD DATED 22/02/2021 ISSUED| ||BY THE GOVERNMENT.| |Exhibit P2|TRUE COPY OF THE APPLICATION DATED| ||13/03/2021 GIVEN BY THE 2ND PETITIONER IN| ||RESPONSE TO EXHIBIT P1.| |Exhibit P3|TRUE COPY OF THE DETAILS OF PETITIONS| ||SUBMITTED BY THE BOARD BEFORE THE| ||COMMISSION FOR THE PERIOD FROM 01/01/2016| ||TO 15/06/2021 ALONG WITH COVERING LETTER| ||DATED 08/07/2021 AND OBTAINED UNDER RIGHT| ||TO INFORMATION ACT.| |Exhibit P4|TRUE COPY OF THE ORDER PASSED BY THE| ||HON'BLE SUPREME COURT IN CIVIL APPEAL| ||NO.2 7467-7468/2021 DATED 25/02/2022.| |Exhibit P5|TRUE COPY OF THE ORDER PASSED BY THIS| ||HON'BLE COURT ON 30/06/2021 IN WP(C)| ||NO.9483 OF 2021.| |Exhibit P6|TRUE COPY OF THE COUNTER AFFIDAVIT IN| ||WP(C) NO.9483 OF 2021 FILED BEFORE THIS| ||HON'BLE COURT.| |Exhibit P7|TRUE COPY OF THE JUDGMENT PASSED BY THIS| ||HON'BLE COURT ON 12/11/2021 IN WP(C)| ||NO.9483 OF 2021.| |Exhibit P8|TRUE COPY OF THE COMMUNICATION| ||NO.A1/8/2020/PD DATED 12/04/2022 ISSUED| ||BY THE GOVERNMENT FOR AN ONLINE INTERVIEW| ||WHICH IS SCHEDULED ON 23/04/2022.| WP(C) Nos.14276/2022 & 15463/2022 17 ## **APPENDIX OF WP(C) 15463/2022** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.A1/8/2020/PD DATED 22/02/2021 INVITING APPLICATION FOR APPOINTMENT TO THE POST OF MEMBER OF THE KERALA STATE ELECTRICITY REGULATORY COMMISSION TO THE PRINCIPAL SECRETARY - Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 19.4.2022 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF SECRETARY. - Exhibit P3 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.9483 OF 2021 DATED 12/11/2021. RESPONDENTS' EXHIBITS - Exhibit R1 A True copy of the Go(Rt) No 59/2021/ Power Dtd 22/4/2021 issued by Power (A) Department - Exhibit R1 B True copy of Go (Rt) No 125/2021 PD Dtd 9/9/2021 issued by Power (A) Department - Exhibit R1 C True copy of Go(Rt) No 11/2022 / Power Dtd 19/1/2022 issued by Power (A) Department Exhibit R1 D True copy of the minutes of the second meeting of the selection committee prescribing the criteria for selection of Member, KSERC held over VC on 23/12/2021 at 12:30 p.m Exhibit R1 E True copy of the report along with covering letter No.CMD/106/KSERC/2021-22 dated 12.1.2022, issued by the Chairman and Managing Director of KSEB Ltd. WP(C) Nos.14276/2022 & 15463/2022 18 Exhibit R1 F True copy of Email Dtd 17/5/2022, send by PPS to Chairperson, CEA Exhibit R1 G True copy of the list of short listed appliants for the post of Member, KSERC based on their experience in power sector.