- (1.) The petitioner, who describes himself as a retired Superintending Engineer of the Punjab State Electricity Board, challenges the appointment of the 3rd respondent as legally impermissible and would characterize the position that the 3rd respondent holds as Chairman-cum- Managing Director of the Punjab State Corporation as without authority. He, therefore, seeks for a writ of quo warranto declare the 3rd respondent as usurper of public office and for quashing of the notification issued on 7.2.2014 (Annexure P/7) by the Government of Punjab, Department of Power that has modified the age of superannuation as 65. The order extending the term of appointment of the 3rd respondent from 9.2.2014, the date when he was due for retirement, upto 8.2.2015 is also sought to be quashed as a consequence thereof.
(2.) The petition was brought on the averments that a notification issued by the Government of Punjab on 16.4.2010 stipulated the qualifications and the experience of CMDs and Directors, except for those to be nominated by the State Government, and the selection process shall be as per the enclosed annexure. The annexure set down the qualifications and the experience for the post of Chairman & Managing Directors (CMDs) and the Directors for POWERCOM as under:- " a) Basic qualification Bachelor's Degree of a recognized institution in Electrical/Mechanical/Electronics/Co mputer Science Engineering or a CA/CWA/MBA b) Age Minimum age of 50 years. Not above 60 years at the time of appointment. c) Experience The person should have served for at least twenty five (25) years in a state/central power utility out of which at least 10 years should be in the field of electricity generation/distribution. He should also have worked at least for two years at the level of CE/EIC of a power utility company or an equivalent position and for at least one year at the level of Board Director of a power utility company or an equivalent position. The Article of Association of the POWERCOM that is registered under the Companies Act contained a definition of the various chief functionaries and also details the manner of their selection, their tenure, the required qualifications etc. Some other key provisions would require to be reproduced for understanding the controversy that is involved. The definition of the CMD, Company, Controlling shareholder and Directors, as set down in the memorandum are as follows:- "CMD 1.6 "CMD" means the Chairman cum Managing Director of the Company. Company 1.7 "Company" means the Punjab State Power Corporation Limited Controlling shareholder 1.8 "Controlling shareholder" shall have the meaning set out in Article 45. Directors 1.9 "Directors" mean the directors of the Company." The appointment of CMD/Directors and the manner of filling up vacancies are contained in clauses 44, 45, 46 and 47. Clause 44 specifies the number of Directors of the Company shall not be less than 3 and not more than 9, as may be determined by the controlling shareholders. Clause 45 states that the Government of Punjab shall be designated as the "controlling shareholders" as long as it holds majority of shares in the Company, directly or indirectly. As per clause 45, part of the CMD/Directors on the Board shall be nominated by the Controlling shareholders and the remaining CMD/Directors shall be selected by a Selection Committee constituted for the purpose. Amongst the Directors, there should be non-retiring Director who would holds office for such a duration as specified by the controlling shareholders and shall be eligible for re-appointment. Clause 46 deals with procedure for removal of directors. Clause 47 (a) sets down that the CMD and the Directors appointed by the Board of Company through the Selection Committee process, shall have a minimum tenure of 2 years, subject to their attaining the age of retirement as determined by the controlling shareholders. In the notification issued by the Government on 24.5.2011, detailing a tripartite agreement that has been signed amongst the Government of Punjab, Management of two successor companies of erstwhile PSEB, namely, PSPCL and PSTCL and all unions and associations of the two successor companies, an annexure that contains the text of the agreement amongst the parties is given. It contains, inter-alia, provisions for modification in the transfer scheme could be made. To our case would be relevant Clause 5 (g); that states as under:- (g) Any modification in Transfer Scheme, Memorandum of Association, Article of Association, qualification and experience of CMDs and Directors will be made after consultation and understanding with the signatories to this Agreement. However, Government's decision will be final in this regard."
(3.) We have set forth all the relevant provisions to immediately embark on the objections taken by the petitioner and the tenability or otherwise of such objections to assess whether the 3rd respondent's appointment was erroneous and his continuation constitutes any serious impropriety since the quo warranto itself stems from the assumption that he is the holder of the public office. The preliminary objection taken by the learned Senior Counsel appearing for the 2nd respondent, before the arguments got underway, was that the post of Chairman-cum-Managing Director was not a public office and that the writ petition itself was not maintainable.;