Dismissed

Nirmal Maharana v. State and Ors.

Orissa HC17 Jul 2023WP(C)/2920/2014

Case brief

AI extract

What is this about?

The High Court dismissed writ petitions challenging the cancellation of a 2011 selection for Diploma Engineers. The court held that cancellation was bona fide based on regulatory directives for BOOT models and found no arbitrariness or discrimination.

What did the court decide?

Writ petitions dismissed with no order as to costs; employment orders not granted.

Nirmal Maharana Vs State and Ors. — Service and Employment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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WP(C) No.2920 of 2014

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In the matter of an application under Article 226 and 227 of the Constitution of India

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Nirmal Maharana & another …. Petitioners
-versus-
State of Odisha and others …. Opposite Parties
For Petitioners : Mr. G.A.R Dora, Sr. Advocate
For Opposite Parties : Mr. A.K. Parija, Sr. Advocate
Mr. S.P. Sarangi, Advocate
Mr.H.K. Panigrahi, ASC
WP(C) No.21747 of 2012
Bhupati Charan Parida & …. Petitioners
others
-versus-
State of Odisha and others …. Opposite Parties

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For Petitioners : Mr. B. Routray, Sr. Advocate

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For Opposite Parties : Mr. A.K. Parija, Sr. Advocate Mr. S.P. Sarangi, Advocate Mr.H.K. Panigrahi, ASC

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WP(C) No.2920 of 2014

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WP(C) No.4953 of 2017

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Bishnu Mohan Panigrahi & …. Petitioners another

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-versus-

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State of Odisha and others

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Opposite Parties

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For Petitioners : Mr. S. Das, Sr. Advocate

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For Opposite Parties : Mr. A.K. Parija, Sr. Advocate

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Mr. S.P. Sarangi, Advocate Mr.H.K. Panigrahi, ASC

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CORAM: JUSTICE V. NARASINGH Date of hearing : 13.02.2023 Date of judgment :17.07.2023

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V. Narasingh, J.

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In all the Writ Petitions the grievance relates to cancellation of self-same selection for the post of Diploma Engineers – Electrical (on contract) by the erstwhile CESU and fresh advertisement by TPCODL, vide Annexure-4 and 7 respectively, Therefore, they were heard together on the consent of the parties and disposed of by this common judgment.

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1-A. On the consent of the parties, WP(C) No.2920 of 2014 is treated as the leading case.

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Heard Mr. G.A.R. Dora and Mr. B. Routray, learned Senior Advocates for the Petitioners and Mr. Ashok Kumar Parija, learned Senior Advocate for the Opposite Parties.

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WP(C) No.2920 of 2014

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The Petitioners being successful in the selection held by the erstwhile CESU for the post of Diploma Engineer - Electrical (on contract) assail the order at Annexure-4 dated 01.11.2012 cancelling the entire selection process. The said Annexure is quoted hereunder for convenience of ready reference:

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“The Advertisement No.20125 dated 13.06.2011 and consequential selection for the contractual tenure post of Diploma Engineers- Electrical (on contract) is hereby cancelled due to unavoidable reasons.”

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3-A. It is the further prayer to direct the Opposite Parties 2 and 3, Central Electricity Supply Utility of Odisha (CESU) represented through its Chief Executive Officer and General Manager, H.R. CESU, Bhubaneswar, respectively to issue engagement orders in their favour on the basis of select list prepared and circulated in the website at Annexure-3.

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It is further prayed to quash the fresh advertisement dated 26.6.2020 at Annexure-7 relating to the post of Diploma Engineers (Electrical) issued by the Senior General Manager (HR). TPCODL, Opposite Parties 5 and 6, Tata Power Ltd. represented through its CEO & Managing Director and Chief Executive Officer, Tata Power Central Odisha Distribution Ltd. Bhubaneswar, respectively.

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For ready reference the prayer in WP(C) No.2920 of 2014 is extracted hereunder:

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iii) Issue a writ in the nature of mandamus or any other appropriate writ(s), order(s) directing the Opp. Parties, particularly Opp. Party Nos.2 and 3 to issue engagement orders in favour of the petitioners on the

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basis of the select list prepared by the Opp. Party Nos.2 and 3 and circulated in the website at Annexure-3 within a reasonable time to be stipulated by this Hon’ble Court.

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iv) This matter is similar to the matter in WP(C) No.21747/2012. Hence, both the matters may be heard together.

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The stand of the Petitioners in short is that an advertisement was floated by the Opposite Party Nos.2 and 3 on 13.06.2011 for selection and engagement of Diploma Engineer (Electrical) against the advertised vacancies and in terms of selection, the name of the Petitioners figured in the select list. But, unfortunately without showing valid reasons whatsoever and on extraneous consideration such selection was cancelled. It is stated by the Petitioners that such cancellation being laced with ulterior reasons is liable to set aside.

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It is the further stand of the Petitioners that without any decision of the Board, the H.R. (Human Resources) Department of Opposite Party No.3 has cancelled the selection of the Petitioners so also failed to assign any valid reason. The Petitioners stated that being otherwise eligible in all respect as stipulated in the advertisement dated 13.06.2011 issued by the erstwhile CESU vide Annexure-1, they applied for the said posts and were called to appear in the written examination. After the result of the written examination, 617 numbers of candidates as against 245 posts were short listed and were directed to appear for personal interview. The Petitioners appeared before the interview Board and the final merit list was published consisting of 203 numbers of candidates

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circulated in the website of CESU as against the advertised post of “245”. On the basis of aforesaid select list circulated in the website, congratulation letters were also issued in the website to the respective selected candidates including the present Petitioners.

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However, instead of giving effect to such select list by issuing appointment orders in favour of the Petitioners, the Opposite Party Nos.2 and 3 issued impugned notice on 01.11.2012 at Annexure-4, circulating the same in the official website of CESU that advertisement dated 13.06.2011 and the consequential selection of the Petitioners for the post of Diploma Engineers - Electrical (on contract) is cancelled.

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It is stated by the Petitioners that CESU authorities had also issued another advertisement for engagement of Junior Artisan (Trainee) for the recruitment year 2011 inviting applications from the qualified ITI candidates wherein the total post advertised was 1000. The interview was conducted simultaneously with the post of Diploma Engineer (Electrical) for which the Petitioners were the aspirants. Whereas the selected candidates for the post of Junior Artisan (Trainee) were issued appointment letters yet the advertisement along with select list for the post of Diploma Engineer (Electrical) was cancelled without any rhyme and reason. As such it is stated that the Petitioners have been subjected to hostile discrimination, as a class.

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Being aggrieved with the said action of the Opposite Parties, the Petitioners submitted representations before the Office of CEO, CESU with the hope of redressal. However, having failed

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to get any appropriate redressal from the authority, they were compelled to approach this Court by assailing the cancellation of advertisement and selection process consequential thereto on various grounds including promissory estoppel and discrimination.

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It is apt to note that in the meantime, with effect from 01.02.2020 CESU has been taken over by Tata Power Central Odisha Distribution Limited (TPCODL). TPCODL has been arrayed as Opposite Party Nos.5 and 6 in terms of the order dated 25.11.2020. The same is quoted below :

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This application has been filed seeking amendment of the writ petition.

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Learned counsel for the petitioner states that the opposite parties CESU has been taken over by Tata Power Central Odisha Distribution (TPCOD) Ltd., therefore, he wants to amend the writ petition as per the schedule. To which, learned counsel for the opposite parties have no objection.

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Having heard learned counsel for the parties and considering the facts and circumstances of the case, the prayer made in this application is allowed.

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Let necessary amendments be incorporated in the body of the writ petition as well as in cause title. Consolidated writ petition be filed within a week. The petitioner is permitted to implead TPCOD Ltd. and Chief Executive Officer, TPCOD Ltd. as opposite parties no.5 and 6

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The Petitioners have also obtained information under the RTI Act that posts in the rank of Junior Manager (Electrical) are still lying vacant. It is further argued by the Petitioners that on the one hand the authorities have cancelled the advertisement and on the other, taking into consideration the existence of vacancies, they

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have decided to issue fresh advertisement to fill up such posts. And ex facie issuance of such fresh advertisement lends credence to their assertion that cancellation of advertisement and selection is mala fide.

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Petitioners by placing reliance on the decision of A.P. Agrawal Vrs. Govt. of NCT of Delhi reported in 2000(1) SLR (SC) 382 have tried to justify their claim wherein three Judge Bench of the Hon’ble Apex Court in para no.14 thereof have held that though a person in the select list has no vested right to be appointed to the post for which he has been selected but he has a right to be considered for appointment and at the same time the appointing authority cannot ignore the select list or decline to make an appointment. The said paragraph is extracted hereunder:

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“14. In R.S. Mittal v. Union of India 1995 Supp. (2) S.C.C. 230 : 1995(2) SLR 437 (SC) the question arose with regard to selection of candidates to the post of Judicial Member, Income-tax Appellate Tribunal. The selection was made by a Selection Board consisting of a sitting Judge of this Court. The Selection Board prepared a panel of selected candidates which included the name of the appellant before this Court and sent its recommendations. The candidates who were at numbers I and 2 in the panel did not accept the appointment. The Bench observed that though a person on the select panel has no vested right to be appointed to the post for which he has been selected has a right to be considered for appointment and at the same time the appointing authority cannot ignore the select panel or decline to make an appointment on its whims. The Court said that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, ordinarily there is no justification to ignore him for appointment and that there has to be a justifiable reason to decline to appoint a person who is

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on the select panel. However, on the facts of the case, the Bench did not give any relief to the appellant as he was only No.4 and no information was available about the stand of the person who was at No.3 of the select panel. While reversing the findings given by the Central Administrative Tribunal to the extent indicated in the judgment, the Bench dismissed the appeal but direct the Government to pay cost of the proceedings to the appellant which was quantified at Rs.30.000/-.”

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It is argued by the Petitioners that when a person has been selected by the selection board and there is vacancy which can be offered to him, there is no justification to ignore him for appointment. Since the Petitioners appeared in the written test and came out successful, were called for personal interview and accordingly after being selected they were issued with congratulatory letters, it is the bounden duty of the authorities to issue appointment orders to the Petitioners, particularly in terms of clause-4 of the advertisement stipulating that on selection they shall be appointed as Diploma Engineers .

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The Opposite Party Nos.2 to 4 filed counter affidavit justifying the stand in cancelling the advertisement and the selection process and they prayed for dismissing the writ petition.

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Placing reliance on the counter, it is submitted that the advertisement published on 13.6.2011 specifically reflected that the authority concerned reserved/preserved the right to cancel the entire recruitment and candidate had/has taken part in the selection on their own will being conscious of such condition. In view of such clear stipulation in the advertisement, they have the power to cancel the advertisement at any stage. Therefore, the Petitioners after

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participating in the selection pursuant to the advertisement, especially after accepting such conditions denuded of their right to challenge the order of cancellation, more particularly on the ground for non-assigning any reason or the allegations like ulterior motive etc.

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Such clause in Annexure-1 (advertisement) vesting the authority to cancel the selection is quoted hereunder:

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“…..The management reserves the right to accept/reject any application on the basis of prescribed criteria to increase or decrease the number of positions advertised or cancel the entire recruitment process and to restrict the number of candidates to be called for Written Test/Interview, raising the eligibility standard.”

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It is the further submission of the Opposite Party No.3 that the impugned order under Annexure-4 cancelling the advertisement is a communication of decision of the Board of Management through website. It is contended that the Petitioners have deliberately misled the Court with bald allegations by not referring to the decision of the Board of Management in its 37^th meeting held on 18.10.2012 where such a decision to cancel the advertisement and consequential selection process was taken.

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It is further submitted to justify the necessity to cancel the selection process that during the selection process, the Apex Board of the Opposite Party to give effect to electricity reforms took certain measures to control the loss of different divisions working in the field of distribution system including the policy of

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installation of smart meter etc. which resulted in reducing the manpower necessitating the impugned cancellation.

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When the decision in respect of such reforms was underway, the Opposite Parties went ahead with the selection process for engagement of Diploma Engineers (Electrical) on contractual basis. Such selection process of candidates was carried out simultaneously as per the past experience of utility. However, Odisha Regulatory Commission in its order dt.23.03.2012 in case No.93,94,95 and 96 of 2011 while considering the annual revenue recruitment and retail supply tariffs for the financial year 2012-13 issued direction to the distribution utility to entrust work during 2012-13 to appropriate and suitable BOOT (Build Own Operate Transfer) operators as per the principle decided by the Commission. As the Opposite Parties have already entrusted the work to the franchisees’ workers to implement the BOOT model, there was no necessity on the part of these Opposite Parties to proceed further with the selection process as per the advertisement dated 13.6.2011

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at Annexure-1.

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Such decision to cancel the advertisement and the consequential selection process was a conscious decision by the Opposite Parties which was placed before the Board of Management for consideration and the Board also concurred with such decision not to proceed with the selection process for recruitment to the post of Diploma Engineer (Electrical) (on contract).

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Reasons behind taking such decision was due to introduction of BOOT model and consequently resulted in handing

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over almost every aspect of distribution system to franchisees. Hence, there is no illegality or irregularity or any oblique motive on the part of the Opposite Parties in cancelling the selection process of recruitment to the post of Diploma Engineer (Electrical). It was further stated that even otherwise since posts were to be filled up on contractual basis, the Petitioners cannot have any vested claim.

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Opposite Parties have also rebutted the allegation of any discriminatory approach by giving appointment to Junior Artisan-A (Trainee) in terms of advertisement where selection process was allowed to continue simultaneously with that of the process of recruitment for the post of Diploma Engineer (Electrical) by submitting that the appointments under Junior Artisan-A (Trainee) is altogether a separate class by themselves involving a different procedure of selection holding a base level post where the existence of such post is highly essential along with franchise holder in tune with BOOT model and under no circumstances their engagement can be equated with the present Petitioners who are claimants to the post of Diploma Engineer (Electrical). The Petitioners and the appointees under Junior Artisan-A (Trainee) being on a distinctly different plane keeping in view the nature and requirement of job in the present system, the allegation of discrimination is without any substance and liable to be rejected in limine.

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Similarly, with respect to the engagement of 42 persons excluding the Petitioners, it has been made clear that such persons were continuing in different Divisions since long, prior to issuance of advertisement under Annexure-1 and their selection process as well as regularization and appointment being not the subject-matter

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of dispute in the present case, that cannot have any bearing upon effective adjudication of the matter.

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It is apt to state that the said 42 persons have admittedly not been impleaded as parties to the present lis.

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In response to the aforesaid grounds raised in the counter by the Opposite Parties 2 to 4, the Petitioners have submitted a rejoinder affidavit stating therein that in terms of 27^th meeting held on 20.9.2010, the Board of Management had decided for creation of 245 posts of Junior Engineer/Junior Manager (Electrical) at 2^nd level. Hence, the plea that for implementation of BOOT Model, the selection process had to be aborted does not stand to reason.

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The Petitioners questioned that once a decision was taken by the Board Management of CESU to recruit 245 numbers of Diploma Engineers (Electrical) by creating the said additional posts considering its necessity, how the same Board can take a decision to cancel the recruitment in the subsequent meeting held on 18.10.2012 particularly without assigning any reasons and cancelling the recruitment without even adverting to the earlier decision of the Board dated 20.09.2010.

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Therefore, the Petitioners have alleged malafide and labelled the impugned cancellation as a colourable exercise warranting interference. It is further alleged by the Petitioners that implementation of BOOT model is a serious failure in today’s scenario.

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They further alleged that 42 candidates appointed in Diploma Engineer (Electrical) do not have requisite qualifications

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and they are the back door entrants with the tacit connivance of the then authorities of CESU.

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Such stand was refuted by the Opposite Parties in their counter. It is stated that in exercise of power conferred under Section 22 of the Electricity Act, 2003, the Odisha Electricity Regulatory Commission (OERC) has formulated a scheme for operation and smooth management of Central Electricity Supply Utility of Odisha (CESU). The said scheme is in force since 8.09.2006 till date with necessary amendment being carried out from time to time in terms of the direction of the OERC.

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In this context it would be apposite to extract paras- 7 and 8 of the counter of the Opposite Parties 2 to 4.

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“7 That it is worthwhile to mention here that after the issuance of the advertisement for commencement of process of selection, the Commission had also issued a Notification in its usual course of business for determination of tariff for the year 2012-13 initiating a proceeding bearing Case No.93, 94, 95 & 96 of 2011 inviting objections for the above purposes. The order of which was pronounced on 23.03.2012 after hearing all the parties participated in the proceeding and the order of the said proceeding was pronounced on 23.03.2012 holding/directing the utility and all other distribution companies in the state for IMPLEMENTATION OF SMART GRID SOLUTION (AMR & AMI) IN DISCOMS UNDER THE BOOT MODEL and was further directed the order shall be effective on and from 01.04.2012. In the above context, it is pertinent to draw the attention of the Hon'ble Court to the relevant paragraphs the order passed by the Commission in the aforesaid tariff order, which is quoted herein below for ready reference.

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IMPLEMENTATION OF SMART GRID SOLUTION (AMR &AMI) IN DISCOMS UNDER THE BOOT MODEL

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“532. While involvement of franchise may continue particularly in rural and Semi-Urban areas on input basis with annual pre-defined performance parameters in terms of AT & C loss reduction and increase in per input realisation. BOOT model on revenue sharing basis has to be extended to the loss making divisions, division being taken as unit. The BOOT model franchise operator will be responsible for smart metering replacement by AB cables etc. The details modalities are to be worked out by the respective DISCOMs in consultation with the Commission as per the broad guidelines contained in letter No.DIR (T)-390/11/2457 dated 30.12.2011 of the Commission. Each DISCOMS is directed to entrust 3 divisions during 2012-13 to appropriate and suitable BOOT operators in accordance with broad principles issued by the Commission in their letter No.DIR (T)390/11/2457 dated 30.12.2011”

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As decided in the meter held on 29.01.2011 for implementation Smart Grid Operation in BOOT model in the State, the agencies, organizations willing to supply install smart meters which can connect/disconnect, enhance load remotely, and facilitate meter reading along with other standard meter features should be entrusted with supply, installation, billing and collection and increase in the revenue per input should be appropriately shared keeping in view their requirement to recover the cost of capital. Preferably one or more division should be entrusted to such of the willing agencies on Build-Own-Operate-Transfer (BOOT) modality with revenue sharing basis so that they will have economy of scale to ensure economy in operation and better performance.

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That, in view of the order passed by the Hon'ble Commission as quoted hereinabove, the Board of Management of the utility have no option except to implement the order of the Commission which resulted in cancelling the recruitment process for adoption of BOOT model which is an effective

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measure control the distribution loss of the Distribution Companies.”

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It is on record that some of the aspiring candidates like the present Petitioners had approached this Court challenging the very process of cancellation of advertisement impugned herein. And withdrew their cases (W.P.(C) Nos.3292/2013, 3293/2013 and 3294/2013) after being convinced that the process of cancellation is based on relevant consideration. It is stated that no recruitment has been made in CESU in any cadres after 2011. Further, for the financial year 2016-17, 2017-18, 2018-19, the CESU has directed that no fresh appointment and new induction shall take place. (Reply affidavit by Opposite Parties 2 to 4 in the connected WP(C) No.21747 of 2012).

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In support of their submission with regard to right of participants to claim appointment, Opposite Parties 2 to 6 placed reliance on the decision of Apex Court in the case of Mohammad Rasid vrs. Director, Local Bodies, New Secretariat and others reported in 2020 (2) SCC 582 wherein the Apex Court relying on a Constitutional Bench decision in the case of Shankarsan Das vrs. Union of India reported in 1991 (3) SCC 47 held that the persons aspiring for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates cannot claim any right of appointment merely for the reason that they responded to an advertisement.

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It is trite law that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment to such post merely because of inclusion of his

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name in the merit list. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the employer is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the prospective employer has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. If the vacancies or any of them are filled up, the employer is bound to respect the comparative merit of the candidates as reflected in the recruitment and no discrimination can be permitted.

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In this context, the Opposite Parties also relied upon the principle laid down in the case of Jatindra Kumar & others Vs. state of Punjab and others reported in (1985) 1 SCC 122 wherein the Apex Court have held as follows:

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“ …….. The notification issued by the Board in this case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts. It did not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. When the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of additional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State”.

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On a conspectus of the materials on record and in the light of the submission of learned Senior Counsel Mr. Dora and

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learned Senior Counsel Mr. Routray for the Petitioners and Mr. Parija, learned Senior Counsel for the Opposite Parties, the hub of issues to be resolved are as follows:

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A. Whether it is within the judicial purview to evaluate the action of the authority in cancelling the advertisement and selection process?

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B. Whether in the peculiar facts and circumstances the action of the Opp. Parties in cancelling the advertisement as per Annexure 4 decision is correct when the Opp. Parties have issued another advertisement on 26.06.2020 under Annexure 7 ?”

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There cannot be any qualm about the law laid down by the Constitution Bench of the Supreme Court in Shankarsan Dash's case (supra), in which it has been held that ordinarily a notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate no legal duty is cast upon the employer to fill up all or any of the vacancies.

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Though this is the ratio of the case in Sankarsan Dash (supra) , it is indeed hedged with certain further observations which cannot be overlooked. The Constitution Bench was cognizant of the fact that there may be certain circumstances in which recruitment process may not be required to be cancelled. Conscious of this fact, the Constitution Bench, held and at the cost of repetition it is reiterated that ordinarily notification merely amounts to an invitation and the candidates who apply for recruitment do not acquire any right to the post. However, it does not mean that the employer has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the

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vacancies or any of them are filled up then comparative merits of the candidates has to be taken into account and no discrimination can be permitted.

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The law, therefore, is well settled that mere inclusion in the select list does not confer upon the selectee an indefeasible right to appointment, but that is only one aspect of the matter. The other is the obligation of the employer to act in a discernible manner. The whole exercise cannot be reduced to a farce. The authorities cannot surreptitiously and without valid reasons nullify the whole exercise and tell the candidates who have gone though the rigors of selection that they have no legal right to be appointed since every such candidate would have the legitimate expectation for being appointed.

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The order of cancellation of the recruitment process can never be insulated so as to render it inviolable or beyond the pale of scrutiny. The law is, if an order has been passed to set at naught the entire selection process, it has to conform to the twin test of reasonableness and fairness.

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The order should be passed bonafide and must be passed on some concrete and tangible material and certainly it cannot be the outcome of an arbitrary act imbued with subjectivity.

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The Constitutional Courts as understood in the common legal parlance certainly have the power and authority to consider the efficacy and sufficiency of the grounds and the material in the wake of which an order of cancellation came into being. In the backdrop of the

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above legal position, the sequence of events which resulted in scrapping the recruitment process has to be scrutinized.

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The most controversial and at the same time most fascinating and daunting role of the Court is the exercise of the power of judicial review. It is commonly viewed with almost “equal amount of reverence and suspicion”. Briefly stated, the Judicial review is the power of the Court to uphold constitutional values by striking down any illegal, arbitrary, unreasonable and capricious action of the authorities. It is a cardinal principle of our constitution that no one, howsoever, highly placed and no authority, however, lofty, can claim to be the sole Judge of its power. The judiciary is the interpreter of the constitution and it is for the judiciary to uphold not only constitutional values but the ethos and enforce the same being conscious of the contours of limitation in exercising such power of judicial review. The power of judicial review is an integral part of our constitutional system. As repeatedly stated by the Apex Court that if there is one feature of our Constitution which, more than any other, is basic and fundamental to democracy and the rule of law, it is the power of judicial review and it is unquestionably, part of the basic structure of the Constitution.

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To arrive at a decision on reasonableness, the Court has to find out if the authorities have left out relevant factors or allowed its decision to be clouded by irrelevant factors. The decision has to conform to the four corners of the law, and not one which no sensible person could have reasonably arrived at. The decision could be one of

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many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.

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In this lis, Opposite Parties have justified their action for necessity to cancel the advertisement and the selection process more specifically taking a stand that during the selection process, the Apex Board of the State in the line of the Electricity Act took certain measures to control the loss of working of different Divisions working in the field of distribution system including the policy introducing the installation of smart meter through an operation known as “BOOT” model. When the decision in this respect was at a fluid stage, the Opposite Parties went ahead with the selection process for engagement of Diploma Engineer (Electrical) on contractual basis. Such selection process of candidates was carried out in right earnest as per the past experience of utility.

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However, Odisha Regulatory Commission in its order dt.23.03.2012 in case No.93,94,95 and 96 of 2011 while considering the annual revenue requirement and retail supply tariffs for the financial year 2012-13 passed the direction to the distribution utility to entrust work division during 2012-13 to appropriate and suitable BOOT operators as per the principle decided by the Commission and extracted hereunder:

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IMPLEMENTATION OF SMART GRID SOLUTION (AMR &AMI) IN DISCOMS UNDER THE BOOT MODEL

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input realisation. BOOT model on revenue sharing basis has to be extended to the loss making divisions, division being taken as unit. The BOOT model franchise operator will be responsible for smart metering replacement by AB cables etc. The details modalities are to be worked out by the respective DISCOMs in consultation with the Commission as per the broad guidelines contained in letter No.DIR (T)-390/11/2457 dated 30.12.2011 of the Commission. Each DISCOMS is directed to entrust 3 divisions during 2012-13 to appropriate and suitable BOOT operators in accordance with broad principles issued by the Commission in their letter No.DIR (T)390/11/2457 dated 30.12.2011”

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As decided in the meter held on 29.01.2011 for implementation Smart Grid Operation in BOOT model in the State, the agencies, organizations willing to supply install smart meters which can connect/disconnect, enhance load remotely, and facilitate meter reading along with other standard meter features should be entrusted with supply, installation, billing and collection and increase in the revenue per input should be appropriately shared keeping in view their requirement to recover the cost of capital. Preferably one or more division should be entrusted to such of the willing agencies on Build-Own-Operate-Transfer (BOOT) modality with revenue sharing basis so that they will have economy of scale to ensure economy in operation and better performance.

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That, in view of the order passed by the Hon'ble Commission as quoted hereinabove, the Board of Management of the utility have no option except to implement the order of the Commission which resulted in cancelling the recruitment process……”

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(Paras-7 & 8 of the counter of O.Ps. 2 to 4)

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As the Opposite Parties have already entrusted the work to the franchise workers to implement the BOOT model, therefore, the Opposite Parties decided not to go further with the selection process as per the advertisement dated 13.6.2011 at Annexure-1. Such

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decision to cancel the advertisement and the consequential selection process was a conscious decision by the Opposite Parties which action was placed before the Board of Management for their consideration and the Board also was of the same opinion not to proceed with the selection process for recruitment to the post of Diploma Engineer (Electrical) which has been set in motion. Such decision as stated in Annexure-A is extracted hereunder:

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“ Extract of the Minutes of the 37^th Meeting of the Management Board of Central Electricity Supply Utility of Orissa (CESU) held on 18.10.2012 at 3.30 P.M. in the conference hall of CESU at IDCO Towers, 2^nd Floor, Janpath Bhubaneswar

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xxx xxx xxx”
10. Recruitment of Diploma Engineers –
Electrical.

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The members perused the memorandum and after deliberation decided to annul the entire recruitment process in view of re-organization of business because of implementation of Smart Grid Solution for Energy Management & Energy Efficiency (SGS - EMEE) through engagement of input based franchisees with incremental revenue sharing (IBFIRS) basis under BOOT model ”

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Reasons behind taking such conscious decision was due to introduction of the BOOT model and consequential handing over of almost all areas of distribution system except few areas to franchises. As the decision of the authorities in the considered view of this Court is ex facie reasonable and does not suffer from any arbitrariness and the Petitioners have not been able to fortify their accusation of any oblique motive, there is hardly any scope of this Court to interfere with such decision. Although the order at Annexure-4 cancelling the

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advertisement and consequential selection though refers to the decision of the Board does not contain such details with regard to the reason behind cancellation. But the clarification by the Opposite Parties on record, in the considered view of this Court cannot be said to be an afterthought.

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48-A. The Petitioners have also not taken such stand.

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As such this Court is persuaded to hold that the Opposite Parties have acted without any arbitrariness or discrimination contrary to the claim(s) by the Petitioners, while issuing Annexure 4, the impugned order of cancellation.

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Now coming to the citation relied upon by the Petitioners in the case of A.P. Agrawal Vrs. Govt. of NCT of Delhi reported in 2000(1) SLR (SC) 382, it is evident that the same is distinguishable on facts. In the case at hand after cancellation of the selection process together with the advertisement the then Managing Authority of CESU had never attempted till 2020 to fill up the vacancies against which the Petitioners had participated the recruitment process. However, in the case of A.P. Agrawal (supra) the select list was acted upon in a selective manner. As such the reliance on the said decision by the Petitioners is misconceived.

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The challenge of the Petitioners to the fresh advertisement dated 26^th June, 2020 at Annexure-7 relating to the recruitment for the post of Diploma Engineer (Electrical) issued by the TPCODL (Opposite Party No.6) is untenable. It was very much within the domain of TPCODL to take appropriate steps to manage the

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activities as per its own strategy as rightly stated in the additional counter affidavit filed by Opposite Party No.6. The stand of the Opposite Party No.6 that it has no liability consequential to the impugned cancellation of the advertisement also cannot be faulted.

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It is worth noting that no claim is advanced by the Petitioners that the CESU had taken any decision to fill up the vacancies before 01.02.2020, date of TPCODL coming into being. Therefore, the advertisement at Annexure-7 dated 26^th June 2020 issued by the TPCODL cannot revive the right or legitimate expectation of the Petitioners who had participated in the selection process during 2011-2012 under the erstwhile CESU.

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