Mr. Navendu Kumar and Mr. Karan Chopra, Advocates v. UNION OF INDIA AND ORS

Judgment

1. By way of this petition under Article 226 of the Constitution, the petitioner seeks a writ of quo warranto against the appointment of respondent No. 7 as Chairman and Managing Director [“CMD”] of National Hydroelectric Power Corporation Ltd. [“NHPC”]. He also seeks a declaration that the selection process undertaken by the Union of India [“UOI”] and the Public Enterprises Selection Board [“PESB”] [respondent Nos. 1 to 5 herein] was illegal. Signature Not Verified Signed By:PARUL VASHIST Signing Date:29.05.2025 13:17:51 W.P.(C) 16721/2024 Page 1 of 18 A. Facts:

2. The impugned recruitment the post of CMD, NHPC, commenced with an advertisement dated 17.06.2022, issued by PESB. For the purposes of the present litigation, the following features of the advertisement are relevant: - A) The “date of vacancy” was mentioned as 01.09.2022. B) Section III of the advertisement dealt with eligibility of candidates. It provided inter alia as follows: - “2. Employment Status: The applicant must, on the date of application, as well as on the date of interview, be employed in a regular capacity -and not in a contractual/ad-hoc capacity -in one of the followings:- (a) Central Public Sector Enterprise (CPSE) (including a full- time functional Director in the Board of a CPSE); (b) Central Government including the Armed Forces of the Union and All India Services; (c) State Public Sector Enterprise (SPSE) where the annual turnover is *Rs.2,000 crore or more; (d) Private Sector in company where the annual turnover is *Rs.2,000 crore or more. Preference would be given Companies. to candidates from listed (* The average audited annual turnover of three financial years preceding the calendar year in which the post is advertised shall be considered for applying the approved limits)” C) The advertisement also specified the following pay scales, at which candidates from Central Public Sector Enterprises [“CPSE”] must be working: Signature Not Verified Signed By:PARUL VASHIST Signing Date:29.05.2025 13:17:51 W.P.(C) 16721/2024 Page 2 of 18 “5. Pay Scale: (a) CentraI Public Sector Enterprises Eligible Scale of Pay (i) Rs. 8250-9250 (IDA) Pre 01/01/1992 (ii) Rs. 11500-13500 (IDA) Post 01/01/1992 (iii) Rs. 23750-28550 (IDA) Post 01/01/1997 (iv) Rs. 62000-80000 (IDA) Post 01/01/2007 (v) Rs. 150000-300000 (IDA) Post 01/01/2017 (vi) Rs. 22400-24500 (CDA) Pre-revised (vii) Rs. 67000-79000 (CDA) Post 01/01/2006 (viii) Rs. 182200-224100 (Level 15) CDA The minimum length of service required in the eligible scale will be one year for internal candidates, and two years for others as on the date of vacancy.”1

3. Respondent No. 7 herein, at the time of the advertisement, was working as an Executive Director of NHPC. He applied for the post of CMD and was called for an interview. A communication dated

26.12.2022, addressed by PESB to the Secretary, Ministry of Power, has been annexed to the writ petition, which shows that seven candidates were called for the interview, including six candidates who were already working in NHPC. At the time of the interview, respondent No. 7 was working as Director (Technical and Projects) at NHPC. 4. At a meeting held on 07.03.2024, PESB recommended respondent No. 7 for the said post. By notification dated 06.08.2024, respondent No. 7 was appointed. The notification states that the appointment was made upon approval of the Appointments Committee of the Cabinet [“ACC”], “in relaxation of the eligibility criteria”. His appointment was until the 1 Emphasis supplied. Signature Not Verified Signed By:PARUL VASHIST Signing Date:29.05.2025 13:17:51 W.P.(C) 16721/2024 Page 3 of 18 date of superannuation, i.e. 30.06.2025, or until further orders, whichever was earlier. B. Submissions of Counsel: 5.

I have heard Mr. Navendu Kumar, learned counsel for the petitioner, Mr. Ripu Daman Bhardwaj, learned Central Government Standing Counsel, and Mr. Avneesh Arputham, learned counsel for respondent No.7. 6. Mr. Kumar argued that respondent No. 7 was ineligible for the post on two grounds, both based upon an Office Order dated 29.09.2021, issued by NHPC, under which respondent No. 7 was promoted to the post of Executive Director, NHPC. The relevant extracts of the said Office Order are reproduced below: - “Sh. Raj Kumar Chaudhary, General Manager(Civil), Emp. No. 101344H in the IDA scale of pay of Rs.120000-3%-280000 (E08) is promoted as Executive Director in the IDA scale of pay of Rs.150000-3%-300000 (E09) with effect from 03.09.2021.

2. He will be on probation for a period of one year, which may be extended, if found necessary.”2

7. Mr. Kumar submitted that the petitioner was on probation for a period of one year with effect from 03.09.2021, and thus did not satisfy the eligibility condition, which specifically required candidates to be employed in the stated categories of organizations, “in a regular capacity – and not in a contractual/ad-hoc capacity”.

8. Mr. Kumar further submitted that the petitioner’s appointment to a post in the IDA scale of pay of Rs. 1,50,000-3%-3,00,000 was effective 2 Emphasis supplied. Signature Not Verified Signed By:PARUL VASHIST Signing Date:29.05.2025 13:17:51 W.P.(C) 16721/2024 Page 4 of 18 from 03.09.2021. He had therefore been in the eligible pay scale, in terms of Clause 5(a) of the advertisement, for less than the minimum stipulated period of one year, as prescribed for internal candidates. Mr. Kumar drew my attention to Clause 15 of the Compendium of Guidelines in Board Level Appointments in CPSE [“the Guidelines”], issued by Department of Personnel and Training, which provides that the cut-off date for deciding eligibility of candidates is the date of occurrence of the vacancy which, in the present case, was 01.09.2022.

9. Mr. Kumar contended that PESB had no power to relax the eligibility criteria, as it had sought to do by an Office Memorandum dated

02.07.2024, relied upon by respondent Nos. 1 to 5, which reads as follows: - “The undersigned is directed to invite a reference to Ministry of Power's O.M. No. 9/10/2021-NHPC dated 22/06/2024 and to state that the shortlisting for the post of CMD, NHPC was discussed in the Board on 01.12.2022. Out of the 7 applications received under internal category, 5 candidates (including Sh. Raj Kumar Chaudhary) were promoted the pay scale, of Rs. 1,50,000-3,00,000/- w.e.f. 03.09.2021. As on the date of vacancy i.e. 01.09.2022, the aforesaid 5 candidates were falling short of the required one year of service in the eligible scale by 2 days. However, the date of vacancy i.e. 01.09.2022 had elapsed at the time of discussion of the above matter in the Board (PESB) and the candidates had completed more than 1 year of service in the eligible scale as on date of discussion i.e. 01.12.2022.

2. The matter was deliberated by the Board and it was decided that the criteria of completion of 1 year service in the eligible scales may be relaxed by 30 days/ 1 month maximum for internal candidates in order to enlarge the pool of candidates for the interview.

3. Accordingly, the 5 candidates, including Sh. Raj Kumar Chaudhary, were given relaxation in the shortfall of service in the eligible scale by 2 days and subsequently called for the interview dated 07.03.2024. Signature Not Verified Signed By:PARUL VASHIST Signing Date:29.05.2025 13:17:51 W.P.(C) 16721/2024 Page 5 of 18

4. This issues with the approval of the competent authority.”3

10. Mr. Kumar argued that PESB’s decision to relax the eligibility criteria was ultra vires its powers, as the power of relaxation has been vested only in ACC under Clause J of the Guidelines. Learned counsel further contended that in any event, PESB could not have changed the eligibility criteria in the course of the recruitment process. He relied upon the judgments in Rakesh Kumar Sharma v. State (NCT of Delhi)4, Bedanga Talukdar v. Saifudaullah Khan5 and Ankita Thakur v. H.P. Staff Selection Commission6, in support of this contention. 11. Learned counsel for the respondents raised a preliminary objection as to the maintainability of the writ petition in its present form, at the instance of the petitioner herein. They submitted that the petitioner had not demonstrated, or even averred, any connection with the grievance ventilated, and therefore lacks locus standi. They alleged that the petition was instituted mala fide. It was further submitted that, even in the writ petition, the petitioner has stated that the petition has been filed in public interest. However, the petitioner has not complied with the rules of this Court relating to Public Interest Litigation [“PIL”], notified on

25.11.2010. 12. On merits, learned counsel for the respondents proceeded on the basis that the appointment of respondent No. 7 was made in relaxation of the rules by ACC, in exercise of a power which it admittedly possesses. It was contended that PESB had relaxed the eligibility criteria only for