Himachal Pradesh HC quashes State rejection of HPERC Chairman panel, orders appointment by 10 November

A Division Bench of Justice Vivek Singh Thakur and Justice Bhupesh Sharma held that the Electricity Act vests suitability in the Selection Committee headed by a retired High Court judge, that the Government may only pick one of the two names recommended, and that rejecting the panel for want of apex-scale seniority was arbitrary and a case of legal mala fide.

The Himachal Pradesh Government cannot throw out a panel recommended by the statutory Selection Committee for the post of Chairman of the Himachal Pradesh Electricity Regulatory Commission because it would have preferred a more senior officer, a Division Bench of the High Court held on 28 October 2026. Justice Vivek Singh Thakur, writing for himself and Justice Bhupesh Sharma, quashed the decision of 16 September 2025 by which the panel of two names was rejected and the notification that followed it, and directed the State to complete the appointment on the basis of the Committee's recommendation of 14 September 2025 on or before 10 November 2026. The petitioner, Pankaj Rai, an IAS officer of the 2014 batch, was one of the two names on the panel. The other was Rajiv Sood. The panel was rejected the day after it was made, on a file that had passed through a Government whose own Chief Secretary had applied for the post and lost.

Sixteen applicants, twelve interviews, two names, one day

The Department of Multipurpose Power Projects and Power advertised one post of Chairman of the State Commission on 14 August 2025 under Sections 82(5) and 89 of the Electricity Act, 2003, with a closing date of 30 August 2025. The advertisement reproduced Section 84: the Chairman and Members shall be persons of ability, integrity and standing with adequate knowledge of, and shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management. Sixteen people applied. Twelve, including Rai, appeared before the Selection Committee on 14 September 2025.

The Committee was chaired by Justice V.K. Sharma (Retd.), with Jishnu Barua as co-member. The third member under Section 85(1), the Chief Secretary, was Prabodh Saxena. The minutes record that Saxena had himself applied for the post and had therefore withdrawn from the Committee, and that under Section 85(6), which says no appointment is invalid merely by reason of a vacancy in the Committee, the body would function with two members. After reading the applications, examining qualifications and experience, interacting with the candidates and deliberating, the two members unanimously recommended Rai and Sood, in no order of preference, as suitable under Section 84(1). The minutes also record the Committee's satisfaction under Section 85(5) that neither man had a financial or other interest likely to prejudice his functions.

The recommendation went to the Chief Minister. On 16 September 2025, on the basis of file notes N-141 to N-145, which the petitioner obtained under the Right to Information Act, the Chief Minister concluded that the panel was not acceptable and rejected it. A notification followed, which the judgment records as dated 30 September 2025.

Rai's career, as set out in his application, ran from Senior Engineer at Ambuja Cement (1993 to 1998) and Assistant Engineer with the Himachal Pradesh State Electricity Board (1998 to 2000), through the Himachal Administrative Service as Block Development Officer at Pooh and Sub Divisional Magistrate at Keylong, Sundernagar, Ghumarwin and Hamirpur, to Additional District Magistrate, Mandi, Commissioner of the Shimla Municipal Corporation, Managing Director of the National Health Mission, Managing Director of Shimla Smart City Ltd, Deputy Commissioner of Lahaul and Spiti and then Bilaspur, and Special Secretary (Education). He holds a Bachelor of Engineering (Mechanical) and an MBA in Finance. Since 18 December 2023 he has been Deputy Director (Administration) at PGIMER, Chandigarh, handling service matters of about 9,000 employees, acting as appellate authority under the RTI Act and as Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act. PGIMER forwarded his application to the Himachal Secretary (Personnel) on 28 August 2025 with a copy to the Union Health Ministry.

The State's six reasons

Rajiv Atma Ram, Senior Advocate, with Brijesh Khosla and Shalabh Thakur, Assistant Advocate General, defended the rejection on several fronts. Selection confers no right to appointment, so there was no right to enforce by writ; the decision was a bona fide policy decision and no mala fides had been pleaded against anyone by name. Rai lacked “standing” within Section 84 because he was not a senior officer in the apex scale, and the Chairman must deal on equal terms with the heads of HPSEBL, HPPCL and HPTCL, who rank with the Chief Secretary. The selection was procedurally flawed because the Committee was constituted after the advertisement rather than before it and never ratified the advertisement. The Committee gave no reasons and ignored senior IAS officers with more power-sector experience, namely Ram Shubag Singh, Sanjay Gupta and Prabodh Saxena of the 1987, 1988 and 1990 batches. The Committee had not recorded its Section 85(5) satisfaction, a defect that Rajesh Awasthi v. Nand Lal Jaiswal, (2013) 1 SCC 501, treats as incurable. Rai's application should have been routed through the Government of India. Rai is a mechanical engineer when an electrical engineer would have been relevant. And the Government, counsel said, is not a post office.

The State also relied on Shailender Kumar Patel v. State of Chhattisgarh, 2026 INSC 902, for the proposition that an appointing authority retains discretion and may decline to appoint a recommended candidate on verification of eligibility; on Jitender alias Kalla v. State (NCT of Delhi), 2025 AIR SC 3124, and Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 275, on the meaning of standing and the distinction between eligibility and suitability; and on Union of India v. Maj. Gen. Manomoy Ganguly, (2018) 9 SCC 65, on inter se suitability. Suitability, the State argued, is subjective satisfaction of the appointing authority and not justiciable.

P.S. Patwalia and Shrawan Dogra, Senior Advocates, with Tejasvi Dogra, Harshika and Ridhima Karol for Rai, answered that Sections 82, 84 and 85 make selection the Committee's function and leave the Government only the constitution of the Committee and the choice between the two names. Seniority is nowhere in Section 84(1); had it been essential, there was no need to call anyone else when a retired Chief Secretary and the sitting one were in the fray. The reasons in the file were, in counsel's phrase, “beautifully vague”. The ratification objection had been clarified by the Law Department and the process continued; the Committee's interviewing of candidates who answered the advertisement was an implied ratification. The notings leading to the rejection must have originated with the Chief Secretary, himself an unsuccessful candidate, who had used his position to scuttle the process. Counsel relied on Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305, on courts not sitting in appeal over expert selection committees; East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678, on public orders being judged by contemporaneous reasons; Shankarsan Dash v. Union of India, (1991) 3 SCC 47, R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230, Tej Prakash Pathak v. Rajasthan High Court, (2025) 2 SCC 1, and State of Assam v. Arabinda Rabha, (2025) 7 SCC 705, on the State's duty to give justifiable reasons for not appointing from a select list; and K. Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512, on changing the rules after the game.

Ratification, reasons and Section 85(5): the grounds that did not survive

The bench took the State's grounds one at a time. On ratification, it found that Section 85 contains no requirement that the Committee be constituted before the post is advertised; the section only obliges the Government to refer a vacancy to the Committee within set time limits and the Committee to finalise its selection within three months. Even if the sequence was irregular, the Government itself had let the process continue, the Law Department had advised that the defect was curable by ratification, and the Committee had ratified the advertisement by conduct when it considered the applications placed before it. If the State still thought the defect serious it should have withdrawn the advertisement and let the Committee issue a fresh one. Raising a curable defect after the selection was complete, and only because the Government did not like the names, was a vague excuse and arbitrary.

The plea that the Committee applied no criteria and gave no reasons was contrary to the record. The minutes show the Committee examined educational qualifications and experience, interacted with the twelve candidates, assessed their abilities and knowledge and deliberated with Section 84(1) in view. Section 85(4) asks the Committee to recommend a panel of two names for each vacancy; it does not require a comparative merit sheet for every applicant. As for Section 85(5), the minutes record that all applicants had filed declarations that they had no prejudicial financial or other interest, and separately record the Committee's satisfaction on that score for the two recommended persons. The bench added that this ground appeared for the first time in the State's reply; it is in neither the decision of 16 September 2025 nor the notification, and was an afterthought.

The proper-channel objection fared no better. Rai had applied through his immediate controlling authority at PGIMER, which forwarded the application to the Secretary (Power); the Secretary accepted it as properly routed and placed it before the Committee with the others. Having accepted and processed the application, the State could not use its routing to justify rejecting the panel.

Standing is not seniority, and the power sector is not the only field

The heart of the judgment is its reading of Section 84(1). The provision does not confine knowledge or capacity to electricity generation, transmission or supply; it lists engineering, finance, commerce, economics, law and management as alternative fields. Had Parliament wanted only power-sector experience, it would have said so, and in that event no sitting or former High Court judge could ever have been appointed Chairman under Section 84(2), whereas, as the bench was told during arguments, several States have appointed former judges, whose qualification is drawn from “law” as one of the listed fields. Nor does the section say that only apex-scale IAS officers possess ability, integrity and standing; if it did, the advertisement would have invited applications from them alone. Whether such officers would necessarily have adequate knowledge of the power sector was, the bench remarked, another question.

The Supreme Court decisions the State cited on standing and seniority were distinguished because each turned on specific statutory rules that made seniority relevant; here eligibility had to be determined strictly under Section 84(1). The note in the file that earlier Chairmen had been apex-scale IAS officers with policy experience or senior technocrats, and that the last Chairman had headed the Bhakra Beas Management Board, was held to be an arbitrary excuse rather than a lawful ground, since neither the Act nor the advertisement carried any such requirement. Applications were invited from the open market, and it is wrong to presume that longer service means more knowledge or capacity. Length of experience, the bench said, is not a standalone metric in the field of knowledge; what matters is how far the subject has been understood. It illustrated the point with the exchange between Ashtavakra and King Janaka in the Ashtavakra Geeta, in which wisdom is measured by the clarity of understanding rather than the greyness of hair.

Who decides suitability under the Electricity Act

The bench then set out the scheme. Section 82(4) caps the Commission at three members including the Chairman; Section 82(5) says the Chairman and Members are appointed by the State Government on the recommendation of the Selection Committee under Section 85. Section 85(1) composes that Committee of a person who has been a High Court judge as Chairman, the Chief Secretary, and the Chairman of the Central Electricity Authority or of the Central Commission. Section 85(4) requires a panel of two names per vacancy. Nothing in the Act provides for rejecting a panel made after due process, or for referring it back because the Government believes senior people, including its own former or present Chief Secretaries, were left out. The appointing authority is the Government, but selection has been entrusted to the Committee, and by placing a former judge at its head the Legislature attached statutory sanctity to its work.

From this the bench drew the line that decides the case: “the Government has no role in determining the suitability of a candidate”. The Government may question a recommendation if an ineligible person is recommended, but suitability under Section 84(1) involves a subjective satisfaction that the Act vests exclusively in the Committee. Had the Legislature intended the Government to judge suitability, there would have been no point in a high-powered Committee recommending two names and leaving the Government only the choice between them. The Government's discretion extends to choosing either name, not to rejecting the panel because other applicants were, in its opinion, more suitable, more capable or more senior. The State had treated itself as an appellate authority over the Committee and redetermined suitability by reference to seniority, pay scale and past positions, which the Act does not permit. The Committee's own recommendation was valid despite the Chief Secretary's recusal, because Section 85(6) saves appointments from any vacancy in the Committee.

Because the grounds of rejection were flimsy, arbitrary and vague, the line of authority that selection confers no indefeasible right to appointment was not attracted. No personal mala fides had been alleged, but the bench characterised the decision as a case of “legal mala fide”: the Act had been misread and a power the State does not have had been presumed and exercised. To accept the State's position would be to rewrite the statute and insert a power to accept or reject panels that Section 82(5) excludes by confining the Government to appointing on the Committee's recommendation. The action was arbitrary, and arbitrariness, the bench said, is the antithesis of the equality clause in Article 14.

Order

The writ petition, CWP No. 19625 of 2025, was allowed. The decision dated 16 September 2025 (Annexure P-6) and the notification (Annexure P-4), which the operative part of the judgment describes as dated 3 October 2025, were quashed and set aside. The respondents were directed to complete the process of appointment of the Chairperson of the Himachal Pradesh Electricity Regulatory Commission on the basis of the Selection Committee's recommendations dated 14 September 2025 (Annexure P-5) on or before 10 November 2026. Pending miscellaneous applications were disposed of. The petition was reserved on 1 October 2026 and decided on 28 October 2026.