PETITIONER:
STATE OF HIMACHAL PRADESH AND ANR.
Vs.
RESPONDENT:
KAILASH CHAND MAHAJAN AND ORS.
DATE OF JUDGMENT20/02/1992
BENCH:
MOHAN, S. (J)
BENCH:
MOHAN, S. (J)
SAHAI, R.M. (J)
CITATION:
1992 AIR 1277 1992 SCR (1) 917
1992 SCC Supl. (2) 351 JT 1992 (2) 144
1992 SCALE (1)454
ACT:
Constitution of India, 1950-Article 136-Appeal-Whether
Supreme Court to decide a case on ethics-Retirement age of
Chairman/Member of Electricity Board-Policy-Need for
legislation-Whether the Court to interfere.
Electricity (Supply) Act, 1948-Section 5(6) (as amended
by the Himachal Pradesh Act 10 of 1990)- "Shall be
disqualified from being appointed," "or being"-Meaning of.
Electricity (Supply) Act, 1948-Sections 5,8 and sections
14 and 16 of the General Clauses Act-Period of appointment-
Time to time extension-Whether amounts to re-appointment-
Whether section 5 (6) deals only with initial appointment.
Electricity (Supply) Act, 1948-Section 10-Whether
punitive in nature-Reappointment-Person removed whether
eligible.
Electricity (Supply) Act, 1948-Section 5 (6)-(as amended
by the Himachal Pradesh Act 10 of 1990)-Effect of amendment-
Cessation from holding office of Chairman/Member of the
Board on attaining the age of 65 years whether automatic-
Right to continue in office-Legitimate expectation-Legality
of-Superannuation age-Introduction-Object of.
Interpretation of Statutes-Object of legislation and
legislative intention-Distinction of-`Object and Reasons' of
a Bill-Importance of-The Himachal Pradesh Act, 10 of 1990-
Sections 3,5-Object of.
Constitution of India, 1950-Article 14-Amending Act (the
Himachal Pradesh Act 10 of 1990) introducing the age of
superannuation affecting one person-Whether enactment ultra
vires.
Constitution of India, 1950-Article 226-Writ petition
challenging vires of the Himachal Pradesh Act 10 of 1990-
Non-impletion of a person who was appointed in the place of
the writ-petitioner-Effect of.
HEADNOTE:
Respondent No. 1, on his retirement from the post of
Chief Engineer from the State of Punjab was appointed as
a Member of Himachal Pradesh State Electricity Board on
24.7.1981 and thereafter appointed as Chairman of the Board
for a period of two years. On 13.8.82 by a notification the
period was extended to five years, w.e.f. 25.7.1981. On
12.5.86, the term as Chairman was extended for another
period of three years. There was a further extension on
12.6.89 for a period of 3 years. His appointment was to
continue upto 25.7.92.
Respondent No. 3, the Chief Minister of Himachal Pradesh
was alleged to have made speeches that should he come to
power in the January 1990 elections he would have the
respondent No. 1 removed from the Chairmanship of the
Electricity Board.
On 5.3.90, the respondent No. 3 became the Chief
Minister. A notification dated 6.3.90 was issued in
supersession of the notification dated 12.6.89 that the
appointment of the respondent No. 1 as Chairman of the
Electricity Board was extended from 25.7.89 to 6.3.90.
Another notification dated 6.3.90 was issued directing that
one Mr. Chauhan function as Chairman of the Electricity
Board w.e.f. 7.3.90.
The respondent No. 1 preferred a writ petition
challenging the validity of the notification dated 6.3.90.
While the writ petition was pending, on 30.3.90, another
notification was issued terminating the appointment of the
respondent No. 1 as Member of the Electricity Board.
On 30.3.90, the High Court while admitting the writ
petition (CWP No. 123 of 1990) ordered that no appointment
to the post of Chairman of the Electricity Board be made
till further orders of the Court. When the matter was heard
on 22.5.90, the Advocate General requested the Court that
the judgment not to be pronounced since he desired to seek
instructions from the Government to reconsider its
notification dated 6.3.90. On 11.6.90, the Advocate General
submitted to the Court that the notifications dated 6.3.90
and 30.3.90 would be withdrawn and an undertaking to that
effect was given. Accordingly the writ petition was disposed
of.
By notification dated 11.6.90, the Government withdrew
its notification dated 6.3.90 and 30.3.90.
919
On 11.6.90, a show cause notice was issued to the
respondent No. 1 for having abused his petition as Chairman
of the Electricity Board and also ex-offcio Secretary,
M.P.P. Power, asking him to submit his explanation within 21
days as to why action should not be taken under Section 10
of the Electricity (Supply) Act, 1949. He was also placed
under suspension with immediate effect. Consequent upon the
suspension of the respondent No.1, the notification dated
16th July, 1990 issued placing one Mr. R.S.S. Chauhan,
Member (Operations) as the Chairman of the Electricity Board
with immediate effect.
On 22.6.90, the Chief Secretary of the State Government
requested the Secretary, Government of India, Ministry of
Home Affairs to grant permission to promulgate Electricity
(Supply H.P. Amendment) Ordinance, 1990, as no age limit was
prescribed for holding office of the Member of the State
Electricity Board, it was necessary to prescribe an upper
age limit and it was proposed through the Ordinance that no
person above the age of 65 years could be appointed and
continued as Chairman or Member of H.P. State Electricity
Board.
On 9.7.90, the Government of India pointed to the State
Government that it was desirable for it to examine the
matter with reference to the relevant provisions of the Act
and the Constitution of India.
On 13.7.90, the Governor issued the H.P. Ordinance Rule
of 2/90, amending Section 5 (6) of the Electricity (Supply)
Act.
A notification was issued on 16.7.90, that as the
respondent No.1, having already attained the age of more
than sixty-five years, was ceased to be consequently
Chairman of the Board.
Aggrieved by the Ordinance dated 13.7.90 and the
notification dated 16.7.90, the respondent No.1 filed a writ
petition (CWP No. 396 of 1990) to quash the same.
The respondent No. 1 urged before the High Court that
there was a deliberate attempt on the part of the State to
get rid of him through the Ordinance; that the Ordinance was
violative of Articles 14 and 16 of the Constitution that as
he was the only person affected by the Ordinance having
crossed the age of 65, he was singled out for a total
discriminatory treatment; that it was a colourable exercise
of power; that while obtaining
920
the consent to promulgate the Ordinance, the fact of the
pending writ petition, concerning the respondent No. 1, was
not made known and there was a deliberate concealment of
facts; and that in any event, the Chief Minister (who was
the fourth respondent in the writ petition) was activated by
malafides and he was determined to remove the respondent
No. 1, as he held out in the election meeting.
The respondent No. 4 (in the writ petition)
(Chief Minister) denied the allegations of malafides and
urged that the Ordinance was issued since a policy decision
was taken to introduce age of superannuation fixing the
limit at 65.
During the pendency of the writ petition, the Ordinance
was replaced by the Electricity (Supply) (Himachal Pradesh
Amendment) Act, 1990 (H.P. Act 10 of 1990). Therefore, the
writ petition was amended to challenge the validity of the
amending Act.
The Division Bench quashing the notification dated
17.7.1990 held that the evidence furnished by the petition
(respondent No. 1) in the form of newspaper reports would
not be enough to hold that the Chief Minister had any
personal bias; that the legislature as a body could not be
accused of having passed a law for an extraneous purpose and
therefore, no malafides could be attributed to the
legislature; that by the Ordinance an age of superannuation
was brought in, and as there was no such age prescribed by
the Central Act, there was no repugnancy; that by mere
curtailment of the term as Chairman of the Board without
any mention about his inability or professional competence,
so as to affect his reputation in any manner, no injury was
taken place so as to complain of violation of Article 21 of
the Constitution; that prescription of maximum age by the
amending Act at 65 years could not be said to be arbitrary;
that as the petitioner was appointed after he attained the
age of 65 years, he would not be affected by Section 3(1);
and that Mr. R.S.S. Chauhan was not a necessary party, as
his appointment was only "until further orders."
Against the decision of the High Court by special leave
this appeal was filed by the State, contending that though
the inapplicability of the Ordinance or Act was not raised,
the High Court allowed the argument; that the Ordinance/Act
was applicable to the respondent No. 1; that the reading of
Sections 2 and 3 of the amending Act, both individually and
921
conjointly lead to the only conclusion that the Act
disqualified every person from holding office who on the
date of enactment namely, 13th July, 1990 was above 65
years; that the Act on its own terms made no distinction
whatsoever between those persons who already attained the
age of 65 years on the date of enactment or those who were
less than 65 years; that the High Court was not right in
introducing an artificial distinction; that Section 5(6) of
the Act as amended would disqualify all persons who were at
the time of the amendment 65 years or above; that the
language was very wide in its comprehension; that there was
no necessity to remove the respondent No. 1 by resorting to
Section 10 because Section 5 (6) was self-executory; that by
operation of law, the respondent No. 1 ceased to hold office
on the date of coming into force of the amending Act;that
public policy required to prescribe the age of 65 years
retirement of the members of Electricity Board;that the High
Court went wrong as though the appointment of the respondent
No. 1 was not covered by Section 3(1) since the right to
continue as Chairman was pursuant to an appointment after he
had attained the age of 65 years; that factually it was
incorrect because the appointment of the first respondent as
Chairman was on 13.8.82 and the same appointment came to be
extended from time to time and each of such extensions could
not constitute a new appointment; that it was one
appointment which was being continued from time to time;
that the reasoning of the High Court was wrong because it
led to unconstitutionality, as the persons who attained the
age of 65 years after the amending Act would be obliged to
retire while the older persons like the respondent No. 1
would remain in office; that such situation would clearly
amount to discrimination; that either by way of Section 5(6)
of the Electricity (Supply) Act, as amended or under Section
3(1) of the amending Act, the respondent No. 1 would cease
to hold office; that Section 3 was introduced only by way of
abundant caution; that Section 3(1) contained a `non
obstante' clause and it rendered any judgment, contract/
order or contrary to the sub-section would be void; that the
legislature introduced the non-obstante clause to put the
matter beyond doubt; that the legislation was general in its
terms and its application and the fact that at the relevant
time of the amending Act or even the Ordinance, the
respondent No. 1 alone was no ground to hold that it was a
single person's legislation; that no malafides could be
attributed to the Legislature, an argument that the
amendment has been passed only with a view to punish
922
the first respondent was not available to the respondent No.
1; that for the failure to implead Chauhan the writ petition
was liable to be dismissed because if by reason of the
decision of the court, Chauhan was ultimately affected, and
if that decision was rendered without hearing Chauhan, it
would amount to a clear violation of the principle of
natural justice; that there was no need to dislodge Chauhan
from Office as he was continuing so long; that this Court,
by fixing the compensation, instead of relegating the matter
to the State, may allow him to continue in the Office for
the remaining period of tenure of the respondent No. 1.
The respondent No. 1 submitted that the State, while
writing for sanction for issue of Ordinance though
specifically mentioned about the respondent No. 1 by name,
it concealed from Govt. of India the facts of the matter
being sub judice; that the disqualification prescribed under
Section 5 (6) of the amended Act was to prevent future
appointments after attaining the age of 65 years; that there
was no automatic cessation of office on attaining the age of
65 years; that by merely amending the law, it could not be
urged that the respondent No. 1 having attained the age of
65 ceased to be a Member or Chairman of the Electricity
Board; that Section 5 (6) would not help the appellant; that
the respondent No.1 having been appointed under Section 8
constituted a class and if the appointment of the respondent
No. 1 was sought to be brought out under Section 5 it would
bring a discrimination treating unequals as equals and
therefore, the law would have to be struck down as
discriminatory; that the attaining of 65 years was not to be
considered as disqualification as otherwise Section 10
would provide for such a situation; that Section 5(6) only
deals with initial appointment and would not cover a case of
reappointment after attaining the age of 65; that though the
notifications dated 12.5.86 and 12.6.89, used the word
"extension" it was nothing but reappointment; that by the
enactment only the first respondent alone could be
affected and, therefore, it was a single person's
legislation being violative of Article 14 of the
Constitution; and that where the respondent No. 1 would
choose to question the vires of the Ordinance or the Act,
there was no need to implead Chauhan at all, and the
respondent No. 1 could not have asked for any relief
against Chauhan and even otherwise, for an effective
adjudication of the points in issue there was no need for
the presence of Chauhan.
Allowing the appeal filed by the State, this Court,
923
HELD: 1.01. This Court cannot decide the case on ethics.
The Court is to judge the law and the correctness of the
legal provisions as it sees. [947G]
1.02. It is not for this court to find out whether there
was any need for such a legislation. Of course, for lack of
legislative competence or for violation of the right to
equality under Article 14 etc. the validity of the
legislation may be scrutinised. But, certainly, that is far
from saying the court could examine the legislation from the
point of view that it came to be passed with malafide
intention. By long established practice, which has received
approbation through authorities of this Court, it has always
refrained from attributing malafides to the legislature. In
fact, such a thing is unknown to law. [950H-951B]
1.03. In this case the State wants to introduce the age
of superannuation prescribing an upper age limit of 65 for
the Member and chairman of the Electricity Board, as no
such limit was found in the Electricity (Supply) Act, 1948.
Before the introduction of the amendment, the appellant
wrote on 22.6.90 to the Government of India, Ministry of
Home Affairs for procuring prior instructions from the
President of India, as envisaged in clause (1) of Article
213 of the Constitution. [947H-948B]
1.04. The subject matter of the proposed Ordinance falls
under item 38 of List III of the Seventh Schedule of the
Constitution of India. Where, therefore, it was proposed to
amend Section 5 of the Electricity Supply Act (Central Act),
in its application to the State of Himachal Pradesh; it had
to be reserved for the consideration of the President under
Article 254 (2) of the Constitution. This was because if a
Bill containing similar provision after having been passed
by the State Legislature required to be so reserved for the
consideration of the President of India. [948B-D]
1.05. Therefore, what does the State desire to do? It
wants to embark on a policy of retirement of the
Chairman/Members of the Electricity Board after attaining
the age of 65 years. This Court is least concerned with the
wisdom of the policy. Certainly, no one could quarrel with
the introduction of that measure as of policy. [949D-E]
1.06. Where the State has taken a policy decision to
prescribe an outer age limit for the Members or the Chairman
of the Electricity Board it is perfectly legal. [963D]
924
K.Nagaraj & Others, etc. v. State of Andhra Pradesh
& Anr. etc.etc., AIR 1985 SC 551, paras 7, 36,
referred to.
Pritam Singh v. The State, [1950] SCR 453; Union of
India v. M.P. Singh, [1990] Supp SCC 701,
distinguished.
2.00 There is a disqualification for appointment in
future when it says "shall be disqualified from being
appointed". "Or being" means if such a disqualification is
incurred after the appointment during the tenure of
membership of the post. [952H-953A]
3.01. Section 8 of the Electricity (Supply) Act talks of
term of office and conditions for reappointment. Those
conditions may be as prescribed. Nowhere in this Section an
additional power for appointment is conferred. At best it
could be said that it merely lays down the eligibility for
reappointment. That eligibility must be as per conditions
prescribed under the rules. When it says "shall hold the
office for such period" it means the period as prescribed
under the rules. Beyond this, the Court is unable to
persuade itself to come to the conclusion that there is any
seperate power for reappointment. It is not even necessary
to provide for such a seperate power. Sections 14 and 16 of
Central General Clauses Act provide for such a power.
Section 16 deals with the power of appointment
carrying with it the power of dismissal, while Section 14
states any power conferred unless a different intention
appears could be exercised from time to time as occasion
requires. Where, therefore, Section 5 provides for a power
to appoint, certainly, that power could be exercised from
time to time as occasion requires. Thus one need not search
for a seperate provision in this regard. [953C-G]
3.02. Section 5(6) as amended having regard to the use
of language "or being" would any way exclude such of those
members or even the Chairman who have attained the age of 65
years of age at the time of appointment.[959E]
3.03. It is rather unfortunate that the High Court has
missed the true import of the words "or being". This Court
does not approve the findings of the High Court when it
states, "the provision lays down the age of superannuation
for a member prospectively which disqualifies a person from
being appointed or being a member after he attains the age
of 65 years," by itself it does not affect those who had
been given appointment
925
after having the age of 65 years. The Legislature was
conscious of it, but thought of enacting a provision like
Section 3 on that account. [959C-D]
3.04. The contention that Section 5(6) only deals with
initial appointment and would not cover a case of
reappointment after attaining the age of 65 is wholly
unacceptable. There is no question of any seperate power
for reappointment under Section 8 and the only power being
traceable to Section 5 read with Sections 14 and 16 of the
General Clauses Act. [960B-C]
3.05. The original order of appointment of the first
respondent was on 24.7.1981, first as a Member and as
Chairman for a period of 2 years. The next comes the
appointment dated 13.8.1982, when the first respondent came
to be appointed as Chairman of Himachal Pradesh State
Electricity Board. The notification reads "in continuation
of this Department's notification of even number dated
12.5.1986, the Governor of Himachal Pradesh is pleased to
extend the appointment". Therefore, where the original
appointment dated 12.5.86 is extended from time to time, it
is futile to contend that these are fresh appointments.
[960D, 961D-E]
4. Section 10 confers an enabling power on the State
Government to take punitive action against a member of the
Board who falls under any one of the clauses (a) to (f). The
fact that it is punitive is clear because sub-section (3)
contemplates giving an opportunity to offer an explanation
and thereafter removing him. Once so removed, he is
ineligible for reappointment either as a Member or any
other capacity in the Board. [955D-E]
5.01. The effect of amendment of Section 5 (6) is that
it introduces a new disqualification "if he has attained the
age of 65 years". This disqualification is not only for
being appointed, namely, with reference to future
appointment, but even with regard to a supervening
disqualification covering cases of those who have attained
the age of 65 years and being a member of the Board. [957G-
958A]
5.02. Once this disqualification of attaining the age of
65 years is incurred, there is an automatic cessation from
holding office. This is because Section 5(6) contains the
same phraseology as is found under Articles 102 and 191.
Section 5(6) applies to initial appointment as well as to
those continuing in appointment. [956G-H]
926
5.0.3.Section 5(6) itself would be enough to hold that on
the coming into force of the amending Act, namely, 13.7.90
the first respondent ceases to hold the office by the rigour
of law. [959E-F]
5.04. The Act contains a `non-obstante' clause. An
appointment of a Member of the Board made prior to the
commencement to the Act, namely, 13.7.90 (giving
retrospective operation) when gives a right to continue as a
Member after attaining the age of 65 years, that appointment
is rendered void. [963G]
5.05. This non-obstante clause is a sweep. It applies
(1) notwithstanding anything to the contrary in any
provisions of the Electricity (Supply) Act; (2) rules and
regulations, bye-laws made therein; (3) any judgment, decree
or order of the court; and (4) any contract. [963H]
5.06. Once it is so rendered void, the law deems that he
has ceased to hold office of the Member of the Board. By a
reading of the Section it can be seen that Section 3(1)
would apply to a person who on the date of the commencement
was already more than 65 years. [964A-B]
5.07. The Section nowhere makes a distinction between
those on the date of the enactment are "below" or "over" 65
years of age. Such a distinction is totally unwarranted. The
crucial question to be asked is whether the particular
incumbent is continuing after the attainment of 65 years of
age, if that question is answered in the affirmative there
is a cessation of office, in view of the terms of that
Section. The contrary conclusion would lead to strange
results. Those who are appointed prior to the Act and on the
attainment of 65 years on 13.7.90, would vacate the office
while a person already 65 on that date and after the passing
of the Act notwithstanding the policy of prescribing the age
of superannuation of 65 years would continue in the office.
The object of introducing an age of superannuation itself is
to weed out the older elements and infuse fresh blood so
that the administration could function with vigour. [964B-D]
Pasupati Nath Sukul, Election Commission of India,
State of U.P. v. Nem Chand Jain and others, [1984]
2 SCC 404; Election Commission, India v. Saka
Venkata Subba Rao, [1953] SCR 1144 at page 1157; R. v.
Ministry of Agriculture Fisheries and Food, ex
parte Jaderow Ltd. and others, 1991 All England Law
Reports 41, referred to.
927
Wade's Administrative Law (6th Edition), Page
520-21, referred to.
6.01. There is a great distinction between the
legislative intention and the purpose or object of the
legislation. While the object of legislation is to provide
a remedy for the malady, on the contrary, the legislative
intention relates to the meaning from the exposition of the
remedy as enacted. For determining the purpose of object of
legislation, indeed, it is permissible to look into the
circumstances which were prevalent at that time when the law
was enacted and which necessitated the passing of the
enactment. For the limited purpose of appreciating the
background and the antecedents factual matrix leading to the
legislation it is open to the court to look into the
statement of 'Objects and Reasons' of the Bill which
accentuated the statement to provide a remedy for the then
existing malady. [964G-965A]
6.02. The statement of Objects and Reasons' brings out
the object of the desirability of introducing an age of
superannuation as the same is entrenched in our
administrative and constitutional systems. With this object
in view, Section 3 intends that no one has a right to
continue as a member of the Board after attaining the age of
65. Thus, the only conclusion possible is, by reason of
appointment if the incumbent is enable to continue after
attaining the age of 65 years such continuing is rendered
void. [965B-D]
6.03. Section 5 (6) as amended achieves this purpose.
Yet if there is another Section which deals with the same it
must be regarded as one introduced by way of abundant
caution. In short, Section 3 (1) is epexegesis. [965D]
6.04. Where the right to continue in office has been
put an end to by statute, even then it may be complained
that the other rights like salary and perks would continue
to be reserved and they could be claimed. To avoid that
contention, Section 3(2) provides for compensation
equivalent to the amount of salary and allowances for the
unexpired term of office. [967G]
6.05. On 13.7.90 the first respondent's right to hold
office as Chairman/Member of Himachal Pradesh Electricity
Board came to an end. The State to pay the first respondent
the salary, allowances and perks for the period commencing
from 13.7.90 upto 25.7.92, had he continued in office
928
but for the impugned legislation. If any payment has been
made by interim orders of the court that will go towards the
deduction of this liability.
[984B,D]
Francis Bennions Statutory Interpretation (1984
edn.) at page 237; State of West Bengal v. Union
of India, [1964] 1 SCR 371, referred to.
7.01. There could be a legislation relating to a
single person. Assuming for a moment, that the Section 3
applies only to the first respondent even then, where it is
avowed policy of the State to introduce an age of
superannuation of 65 years of age, there is nothing wrong
with the same. [971C]
7.02. The legislative object is to introduce an age of
superannnuation. Beyond this nothing more need be
established by the State. The possibility of this
legislation applying to one or more persons exists in
principle. The fact that only one individual came to be
affected cannot render the legislation arbitrary as
violative of Article 14. This is because Section 3 is
general in terms and the incidence of its applying to one
individual does not render the legislation invalid. [975B-C]
7.03. If the State is well entitled to introduce an
age of superannuation, how could that be called
discrimination on unreasonable? The resultant conclusion is
the amending Act, particularly, Section 3 is not, in any
way, arbitrary and, therefore, not violative of Article 14.
[982E]
Ram Prasad Narayan Sahi and Anr. v. The State of
Bihar and others, [1953] SCR 1129; Shri Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar & Others,
[1959] SCR 279; Swastik Rubber Products Ltd. etc.
etc. v. Municipal Corporation of the City of Poona
& Anr., [1982] 1 SCR 729; Chiranjit Lal Chowdhury
v. The Union of India and Ors., [1950] 1 SCR 869;
Thakur Raghubir Singh and Ors. v. The State of
Ajmer (Now Rajasthan) & Ors., [1959] SCR 478;
Lachhman Das on behalf of Firm Tilak Ram Ram Bux v.
State of Punjab and Ors., [1963] 2 SCR 353 at page
374; Tilkayat Shri Govindlalji Maharaj v. The State
of Rajasthan & Ors., [1964] 1 SCR 561; S.P. Mittal
etc. etc. v. Union of India & Ors., [1983] 1 SCR
729; State of Uttar Pradesh v. Lakshmi Ice Factory
& Ors., [1962] Supp. 3 SCR 59; Lalit Narayan
Mishra, Institute of Economic Development and
Social
929
Change, Patna etc. v. State of Bihar & Ors. etc.
[1988] 3 SCR 311; D.S. Reddy v. Chancellor, Osmania
University & Ors., [1967] 2 SCR 214; The Atlas
Cycle Industries Ltd., Sonepat v. Their Workmen,
[1962] 3 SCR 89 at pages 103-4; Ameerunnissa Begum
and Others v. Mahboob Begum and Others, [1953] SCR
404, referred to.
American Jurisprudence (2nd Ed.) Vol.63, Para 42,
referred to.
8.01 The plea that the decision of the court in the
absence of Chauhan would be violative of principle of
natural justice as any adverse decision would affect him is
not correct. [982H]
8.02. What was the first respondent seeking in the
writ petition? He was questioning the validity of the
Ordinance and the Act whereby he had been deprived of his
further continuance. What is the relief could he have asked
for against Chauhan? None. The first point is Chauhan came
to be appointed consequent to the suspension of the first
respondent which suspension had come to be stayed by the
High Court on 12.6.90. Then, again, as pointed out by the
High Court it was "till further orders", the failure to
implead Chauhan does not affect the maintainability of the
writ petition. [983D-E]
B. Prabhakar Rao and Other v. State of Andhra
Pradesh and Others, [1985] (Supp) SCC 432; A.
Janardhana v. Union of India and Others, [1983] 3
SCC 601 at page 626; Pritam Singh v. The State,
[1950] 1 SCR 453, referred to.
State of Kerala and Anr. v. Miss Rajia Rahim etc.,
AIR 1978 Kerala 176; Padmraj Samarendra and Others
v. State of Bihar and Anr., AIR 1979 Patna 266;
A.R. Antulay v. R.S. Nayak & Anr. [1988] Supp 1 SCR
1 at page 59, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTIOIN : Civil Appeal No. 3062
of 1991.
From the judgment and Order dated 12.7.1991 of the
Himachal Pradesh High Court in C.W.P. No. 396 of 1990.
Shanti Bhushan, Chabbil Das, Advocate General, A.M.
Singhvi, E.C. Agrawala, Atul Sharma, A.V. Palli, Mrs. P.
Bhatt and Ms. Reena Aggarwal
930
for the Appellants.
Kapil Sibal, Ranjit Kumar, Mrs. Rashmi Kathpalia,
Yashana Adhyaru and Sudhir Walia for the Respondents.
The Judgment of the Court was delivered by
MOHAN, J. The facts relating to the Civil Appeal are
as under:-
The first respondent (Mr. Kailash Chand Mahajan)
retired from the post of Chief Engineer from the State of
Punjab. On 24.7.81, he was appointed as a member of
Himachal Pradesh State Electricity Board and thereafter
appointed as Chairman of the said board for a period of two
years. On 13.8.82, the following notification came to be
issued:-
No. 8-155/73-DP (Apptt. II) Dated Shimla- 2, the 13th
Aug. 1982
NOTIFICATION
In exercise of the powers conferred by Section 5 of the
Electricity (Supply) Act, 1948, the Governor, Himachal
Pradesh, is pleased to appoint Shri Kailash Chand, Retd.
Chief Engineer (Irrigation) Punjab, whose appointment as
Member, H.P. State Electricity Board, has been notified vide
Notification of even number, dated the 24th July, 1981, as
Chairman, H.P. State Electricity Board for a period of five
years, with effect from 25th July, 1981. Detailed terms and
conditions of his appointment has already been issued
separately.
This is in supersession of this deptt. Notification of
even number, dated the 24th July, 1981.
By Order
K.C. Pandeya
Chief Secretary to the
Government of Himachal Pradesh”
On 12.5.86, the term as Chairman was extended for
another period of three years in the following terms :-
“No. 8-155/73 – DP (Apptt. II), dated Shimla 2, the
12th May, 1986.
931
Notification
In continuation of this Department’s Notification
of even number, dated 13.8.1982, the Governor,
Himachal Pradesh is pleased to extend the
appointment of Shri Kailash Chand Mahajan as
Chairman of the H.P. State Electricity Board for a
further period of three years with effect from 25th
July , 1986, on the existing terms and conditions
of his appointment as Chairman.
By Order
(P.K. Mattoo)
Chief Secretary to the
Government of Himachal Pradesh”.
There was a further extension on 12.6.89 for a period
of 3 years and that notification read as under :-
“No. 8-155/73 -DP (Apptt. II) dated Shimla -2 the 12th
June, 1989.
Notification
In continuation of this Department’s Notification
of even number, dated 12th May, 1986, the
Governor, Himachal Pradesh is pleased to extend the
appointment of Sh. Kailash Chand Mahajan as
Chairman of the H.P. State Electricity Board for a
further period of three years with effect from 25th
July, 1989, on the existing terms and conditions of
his appointment as Chairman.
2. The Governor, Himachal Pradesh is further pleased
to order that Shri Kailash Chand Mahajan, Chairman, H.P.
State Electricity Board shall also continue to function as
Secretary (M.P.P. and Power) to the Government of Himachal
Pradesh.
By Order
(B.C. Negi)
Chief Secretary to the
Government of Himachal Pradesh.
932
Therefore, it is obvious that the appointment was to
continue upto 25.7.92.
In January, 1990, elections to the Legislative Assembly
of the State of Himachal Pradesh were scheduled to take
place. The respondent in his affidavit would aver that the
third respondent (i.e.. Mr. Shanta Kumar, the Chief Minister
of Himachal Pradesh) is alleged to have made speeches that
should he come to power he would have the first respondent
removed from the chairmanship of the Electricity Board. On
5.3.90, the third respondent became the Chief Minister. A
notification dated 6.3.90, came to be issued in supersession
of the notification dated 12.6.89 that the appointment of
the first respondent as Chairman of the Himachal Pradesh
State Electricity Board is extended from 25.7.89 to 6.3.90.
Another notification dated 6.3.90 was issued directing
that Mr. R.S.S. Chauhan shall function as Chairman, H.P.
State Electricity Board w.e.f. 7.3.90. At this stage the
first respondent preferred a Writ Petition No. 123/90
challenging the validity of the notification dated 6.3.90,
and prayed for certiorari to quash the same. While that
writ petition was pending, on 30.3.90, another notification
was issued terminating the appointment of the first
respondent as Member of the State Electricity Board.
On 30.3.90, the High Court while admitting the writ
petition (CWP No. 123 of 1990) ordered that no appointment
to the post of Chairman of the State Electricity Board will
be made till further orders of the Court. The matter was
heard on 22.5.90. The learned Advocate General on
conclusion of his argument requested the court that th
judgment may not be pronounced since he desired to seek
instructions from the Government to reconsider the impugned
order in CWP No. 123 of 1990. On 11.6.90, the learned
Advocate General submitted to the court that both the
notification dated 6.3.90 and 30.3.90 would be withdrawn.
An undertaking to that effect was given. Accordingly the
writ petition was disposed of. Consequent to this
undertaking, by notification dated 11.6.90, the Government
of Himachal Pradesh withdrew both the notifications dated
6.3.90 and 30.3.90. However, the matter did not rest there.
On 11.6.90, a show cause notice was issued to the first
respondent for having abused his position as Chairman, H.P.
State Electricity Board and also ex-offico Secretary, M.P.P.
& Power. He was also asked to submit his explanation within
21 days as to why action should not be taken under Section
10 of the Electricity (Supply)
933
Act, 1948. Simultaneously, it was also ordered that the
shall be placed under suspension with immediate effect by
virtue of power under Section 10 of the said Act.
Consequent upon the suspension of the first respondent, the
notification dated 16th July, 1990 came to be issued placing
Mr. R.S.S. Chauhan, Member (Operations), HP State
Electricity Board as Chairman with immediate effect until
further orders.
Being aggrieved by the above show cause notice and the
order of suspension, the first respondent filed CWP 303 of
1990 on 12.6.90. The High Court while admitting the writ
petition granted interim stay of the order of suspension.
On 22.6.90, the Chief Secretary of the Govt. of
Himachal Pradesh wrote to the Secretary, Government of
India, Ministry of Home Affairs, New Delhi requesting for
permission to promulgate Electricity (Supply H.P. Amendment)
Ordinance, 1990. It was stated in the letter that at
present no age limit has been prescribed for holding office
of the Member of the State Electricity Board, it was
necessary to prescrible an upper age limit. The concept of
terminal appointment at which a person should cease to hold
judicial offices and civil posts is entrenched in
administrative and constitutional system. Therefore, it was
proposed through the ordinance that no person above the age
of 65 years could be appointed and continued as Chairman or
Member of H.P. State Electricity Board. This provision was
not only to apply to future appointments, but also to the
existing Chairman and Members, and where the existing
incumbent’s tenure is curtailed adequate compensation could
be provided. No doubt, rules could be framed under Section
78 of the Electricity (Supply) Act, 1948. But those rules
cannot have retrospective operations, hence the proposed
ordinance.
On 9.7.90, the Government of India replied pointing out
the desirability of the State Government examining with
reference to the relevant provisions of the Act and the
constitution about the promulgating the ordinance. This
State was also advised to explore the feasibility of
amending the rules.
On 13.7.90, the Governor of Himachal Pradesh issued
an ordinance, i.e. H.P. Ordinance Rule of 2/90, amending
Section 5 (6) of the Electricity (Supply) Act. The
ordinance reads to the following effect :_
934
“AUTHORITATIVE ENGLISH TEST”.
H.P. ORDINANCE No………of 1990.
THE ELECTRICITY (SUPPLY) (HIMACHAL PRADESH AMENDMENT)
ORDINANCE, 1990
Promulgated by the Governor of Himachal Pradesh in
the Forty-first year of the Republic of India.
An Ordinance to amend the Electricity (Supply) Act,
1948 (Central Act No. 54 of 1948) in its
application of the State of Himachal Pradesh.
Whereas the Legislative Assembly of the State of
Himachal Pradesh is not in session and the Governor
is satisfied that circumstances exist which render
it necessary for him to take immediate action;
And whereas instructions from the President of
India to promulgate the Ordinance have been
obtained;
Now, therefore, in exercise of the powers conferred
by clause (1) of Article 213 of the Constitution of
India, the Governor of Himachal Pradesh is pleased
to promulgate the following Ordinance :-
1. This Ordinance may be called the Electricity
(Suppy) (Himachal Pradesh Amendment) Ordinanc,1990.
2. In Sub-section (6) of section 5 of the
Electricity (Supply) Act, 1948, for the words “if
he is a member of parliament”, the words “if he has
attained the age of 65 years or is a member of
Parliament” shall be substituted.
3. (1) Notwithstanding anything to the contrary
contained in any provisions of the Electricity
(Supply) Act, 1948, rules, regulations or bye-laws
made thereunder or in any judgment, decree or order
of the Court, any appointment, made before the
commencement of the Electricity (Supply) (Himachal
Pradesh Amendment) Ordinance, 1990, whereby a
person has
935
a right to continue as a member of the Board after
attaining the age of 65 years, shall be void; and
on such commencement he shall be deemed to have
ceased to hold office of the Member of the Board.
(2) On ceasing to hold office of the member of the
Board under sub-section (1), such member shall be
entitled to a compensation as may be determined by
the State Government; but such compensation shall
not exceed the amount equivalent to the amount of
salary and allowances payable to him for his
unexpired term.
B. Rachaiah
Governor
Shimla
The …… 1990.”
As a sequel to the issue of this ordinance, the
following notification was issued on 16.7.90 :-
“Government of Himachal Pradesh
Department of Personnel (AP – II)
No. 8-155/71 -DP (Apptt. II) Dated, Shimla -2, the 16th
July, 1990.
NOTIFICATION
Whereas as a result of promulgation of the
Electricity (Supply) (Himachal Pradesh Amendment)
Ordinance 1990, vide Notification No. LLR-D (6)
8/90- Legislation dated 13th July, 1990, published
in the Rajpatra dated 13th July, 1990, Shri Kaialsh
Chand Mahajan, Chairman, H.P. State Electricity
Board, having already attained the age of more than
sixty-five, years, has ceased to be Member of the
H.P. State Electricity Board and consequently
Chairman of the said Board.
NOW, THEREFORE, in exercise of the powers vested in him
under sub-section (5) of section 5 of the Electricity
(Supply) Act, 1948, the Governor, Himachal Pradesh, is
pleased to appoint Shri R.S.S. Chauhan, Member (Operation),
H.P. State Electricity Board as Chairman of the HP
936
State Electricity Board with immediate effect, till further
orders.
By Order
M.S. Mukherjee
Chief Secretary to the
Govt. of Himachal Pradesh.
Aggrieved by the ordinance dated 13.7.90 and the
above notification dated 16.7.90, the first respondent filed
CWP No. 396 of 1990, praying for certiorari to quash the
ordinance as well as the notifications.
Inter alia, the first respondent as writ petitioner
before the High Court urged that there has been a deliberate
attempt on the part of the State to get rid of him through
the ordinance. The same is violative of Articles 14 and 16
Constitution. In so far as he is the only person affected
by the ordinance having crossed the age of 65, he had been
singled out for a total discriminatory treatment. It is a
colourable exercise of power. While obtaining the consent
of the President of India with regard to a subject falling
under the Concurrent List, it was not even let known that a
writ petition was actually pending concerning the
petitioner. There had been a deliberate concealment of
facts. In any event, the Chief Minister (who was the fourth
respondent) was activated by malafides. He was determined
to remove the writ petitioner, as he held out in the
election meeting.
The State filed a detailed counter affidavit. The
court respondent (the Chief Minister) specifically denied
the allegations of malafides and urged that the ordinance
came to be issued since a policy decision had been taken to
introduce age of superannuation fixing the limit at 65.
During the pendency of the writ petition, the ordinance came
to be replaced by the Electricity (Supply) (Himachal Pradesh
Amendment) Act, 1990 (H.P. Act of 10 of 1990). Therefore, an
application for amendment was taken out challenging the
validity of the amending act. Before the High Court, the
following points were urged :-
(i) malafides –
(a) against the Chief Minister; and
937
(b) against the legislature.
(ii) the act was unconstitutional and arbitrary.
In that it had been passed to get rid of the
petitioner, though a single person legislation was
permissible in law, yet where the discrimination of
the petitioner was wholly unjustified such a
legislation would be bad in law.
(iii) The enactment was void as violative of
Article 254.
(iv) It was also violative of Article 21 as it
damaged the reputation of the writ petitioner
therein.
(v) Section 3(1) of the Ordinance/Act renders a
judgment of the court void and was unconstitutional
as being excessive legislative powers in so far as
it impinges upon the judicial field.
(vi) Inasmuch as the right of the petitioner to
continue as a Member/Chairman of the Board had been
taken away, it is violative of Article 19. The
compensation provided under section 3(2) is vague
and illusory.
(vii) Section 3(1) does not apply to the
petitioner at all.
The Division Bench held that the evidence furnished by
the petitioner in the form of newspaper reports would not be
enough to hold that the Chief MInister had any personal
bias. The legislature as a body cannot be accused of having
passed a law for an extraneous purpose. Therefore, no
malafides could be attributed to the legislature.
Dealing with the repugnancy it was held that by the
impugned ordinance of the Electricity (Supply) Act, an age
of superannuation has been brought in. There was no such
age prescribed by the Central Act. Therefore, there was no
repugnancy.
By mere curtailment of the term as Chairman of the
Board without any mention about his inability or
professional competence, so as to affect his reputation in
any manner, no injury had taken place so as to complain of
violation of Article 21 of the Constitution. The plea of
interference with judicial power was negatived. The plea of
violation of Article 19 that the provision of compensation
is illusory was negatived.
938
On an elaborate consideration of violation of Article
14, the court after referring to the leading decisions of
this court concluded that prescription of maximum age by
the amending act at 65 years cannot be said to be arbitrary
or irrational. Moreover public interest demands that there
ought to be an age of retirement in public services.
On the ancillary question whether the legislation had
been enacted only with a view to get rid off the petitioner
and whether it would be bad as a single person’s
legislation, it was held that there was nothing illegal
about it. In relation to applicability of Section 3(1) of
the amending act to the petitioner, the High Court construed
that Section 3(1) will apply only to an appointment where a
person has a right to continue after the attainment of 65
years. If, therefore, the petitioner had been appointed
after he had attained the age of 65 years, he would not be
affected by Section 3(1). Any contrary inference would not
be justified by its language. It was also held that when
Section 5(6) precluded the petitioner from “being a member”
of the Board after he had attained 65 years of age, would
not help the State as it would apply only prospectively. We
may also refer to that particular argument advanced on
behalf of the State that Mr. R.S.S. Chauhan having been
appointed as Chairman, he ought to have been impleaded as a
party. The court rejected the plea not only on the ground
that he was not a necessary party, but also on the ground
that his appointment was only “until further orders.”
In the result, the notification dated July, 17 1990 was
quashed. It is under these circumstances, Special Leave
Petition was preferred to the court. By an order dated 5th
August, 1991, special leave was granted. Hence, this Civil
Appeal.
Mr. Shanti Bhushan, learned counsel appearing for th
State of Himachal Pradesh after taking us through the orders
of appointment and the extensions would urge that though the
inapplicability of the Ordinance or Acts was not raised, the
High Court had allowed the argument. In other words, it was
never urged that the Ordinance/Act was not applicable to the
first respondent. A bare reading of Section 2 which amended
Section 5 (6) of the Electricity (Supply) Act and Section 3
of the amending act, both individually and conjoinly lead to
the only conclusion that the Act disqualifies every person
from holding office who on the date of enactment, namely,
13th July, 1990 is above 65 years.
939
The Act on its own terms makes no distinction
whatsoever between those persons who have already attained
the age of 65 years on the date of enactment or those who
are less than 65 years. Therefore, the High Court was not
right in introducing an artificial distinction. For the
purpose of his argument he would submit that Section 5(6) as
amended, would disqualify all persons who are at the time of
the amendment 65 years or above. The language is very wide
in its comprehension. When it says “or being”, this
corresponds to Article 102 of the Constitution as well as
Article 191, this provision being made applicable either to
the Members of Parliament or to the legislative body of the
State respectively. It has been held in Pasupati Nath
Sukul, Election Commission of India, State of U.P. v. Nem
Chand Jain and Others, [1984] 2 S.C.C., 404 that on the
incurring of the qualification he ceases to be a member
thereof. Therefore, there is a automatic cessation of the
right to hold office,that is the purpose of “or being’.
These is no necessity to remove the first respondent, by
resorting to Section 10 because Section 5 (6) is self-
executory. Therefore, by operation of law, the first
respondent ceases to hold office on the date of coming into
force of the amending Act.
In Election Commission, India v. Saka Venkata Subba
Rao, [1953] S.C.R. 1144, it has been held on similar
language occurring in the Constitution that it postulates
both existing and supervening disqualification. If it is
the avowed policy of the State to prescribe an age of
superannuation, certainly nobody could have a legitimate
complaint. In fact, there are identical State legislative
enactments in Andhra Pradesh and Uttar Pradesh specifying an
age of superannnuation. This court upheld such a
prescription in several cases. Hence, the first respondent
cannot complain that he could continue indefinitely and
others be retired at the age of 65.
Section 3 of the amending Act was given retrospective
effect from 13.7.90. This Section presupposes an
appointment prior to amendment, namely, prior to 13.7.90.
In this case, the appointment gives a right to continue
after attaining the age of 65 years. If, therefore, the two
tests are answered, the appointment is rendered void
irrespective of the fact when the appointment tool place.
The “Objects & Reasons” of the Act put the matter beyond
doubt. In our country, the concept of age of superannuation
is entrenched both in administrative as well as
constitutional systems. Public policy requires to prescribe
the age of 65 years for retirement of the members of
Electricity Board as in the case of High Court Judges, mem-
940
bers of tribunal and other high functionaries.
The High Court had gone wrong as though the appointment
of the first respondent was not covered by Section 3(1)
since the right to continue as Chairman was pursuant to an
appointment after he had attained the age of 65 years.
Factually this is incorrect because the appointment of the
first respondent as Chairman was on 13.8.82. Thereafter the
same appointment came to be extended from time to time.
Each of those extensions cannot constitute a new
appointment. It is one appointment which is being continued
from time to time. Legally speaking, also, the reasoning of
the High Court is wrong because it leads to
unconstitutionality. In that case persons who attained the
age of 65 years after the amending Act would be obliged to
retire while the older persons like the first respondent
would remain in office. This will clearly amount to
discrimination. Thus either by way of Section 5(6) of the
Electricity (Supply) Act, as amended or under Section 3(1)
of the amending Act, the first respondent would cease to
hold office. As a matter of fact, Section 3 has been
introduced only by way of abundant caution. It is also to
be noted that Section 3(1) contains a `non obstante’ clause
and it renders any judgment contract/order or contrary to
this Sub-section void. The legislature has introduced the
non obstante clause to put the matter beyond doubt.
This legislation is general in its terms and it
application. The fact that at the relevant time of the
amending Act or even the ordinance, the first respondent
alone was affected is no ground to hold that it is a single
person’s legislation. This court, as a matter of fact, has
upheld such pieces of legislation in Chiranjit Lal chowdhury
v. The Union of India and Ors., [1950] S.C.R. 869,
(particularly the passages occurring at pages 878-79). On
the basis of its ruling it is submitted that even if it is
held a single person’s legislation, if he constitutes a
class by himself, such a legislation would be valid. The
same principle is stated in Thakur Raghubir Singh and Ors.
v. The State of Ajmer (Now Rajasthan) & Ors., [1959] S.C.R.
478. Again in Lachhman Das on behalf of firm Tilak Ram Ram
Bux v. State of Punjab and Ors., [1963] 2 S.C.R. 353 @ 374,
it has been held that a law applying to one person or one
class of persons is constitutional if there is sufficient
basis or reason for it. In Tilkayat Shri Govindlalji
Maharaj v. The State of Rajasthan & Ors., [1964] 1 S.C.R.
561 where a legislation was confined only to one of the
temples, it was held not to be in violation of Article 14 of
the Constitution. To the similar effect are S.P. Mittal
etc. etc.
941
v. Union of India & Ors., [1983] 1 S.C.R. 729 and in State
of Uttar Pradesh v. Lakshmi Ice Factory & Ors., [1962] Supp.
3 S.C.R. 59. Again, in Lalit Narayan Mishra Institute of
Economic Development and Social Change, Patna etc. v. State
of Bihar & Ors. etc., [1988] 3 S.C.R. 311, even though the
Act was general in terms and applied to only one of the
institutions at the relevant time, having regard to the
policy of nationalisation, it was upheld. The case of D.S.
Reddy v. Chancellor, Osmania University & Ors., [1967] 2
S.C.R. 214, has no application to the facts of the case
because though the Act was general in its application, yet,
it applied to only one individual who was when occupying the
post of Vice Chancellor of Osmania University. Thus, it is
submitted as read from the statement of `Objects and
Reasons’ of the amending Act, if the policy to superannuate
at the age of 65 is in order to give full effect to the
policy, provision will have to be made for those who have
attained the age of 65 also. This is what Section 3(1) aims
at.
Looking it form that point of view this is a
legislation which applies to all. The chance that the first
respondent was affected at the relevant time by introduction
of this legislation will not in any manner render it
violative of Article 14 on the ground that it is a single
person’s legislation.
If the law is settled that no malafides could be
attributed to the Legislature, an argument that the
amendment has been passed only with a view to punish the
first respondent is not available to the first respondent.
The next submission of the learned counsel is that in the
place of first respondent, Chauhan had come to be appointed
as Chairman, therefore, he ought to have been impleaded as a
party. The effect of non-impleading Chauhan will be fatal
to the writ petition as laid down in State of Kerala and
another v. Miss Rafia Rahim etc., A.I.R. 1978 (Kerala), 176
as well as Padmraj Samarendra and others v. State of Bihar
and Anr., A.I.R. 1979 (Patna) 266. In both the cases where
the petitioners were challenging the selection, it was held
the selectees were necessary parties as they were affected
by the decisions of the court. Therefore, if they are not
impleaded no relief could be granted in favour of the writ
petitioners even though on merits the petitioners could
succeed.
Even otherwise, today, the principle of natural justice
has assumed great importance. It by reason of the decision
of the court Chauhan is ultimately affected, and if that
decision is rendered without hearing
942
Chauhan, it would amount to a clear violation of the
principle of natural justice. An order passed in violation
of that salutory provision of natural justice would be a
nullity. As a matter of fact, if Supreme Court passes an
order that would amount to nullity is what this court has
laid down in. In A.R. Antulay v. R.S. Nayak & Anr, [1988]
Supp 1 SCR 1 @ 59. Therefore, for the failure to implead
Chauhan the writ petition was liable to be dismissed. The
contrary view taken by the High Court that though he is a
proper party but not a necessary party, or that Chauhan came
to be appointed “until further orders” and, therefore, he
need not be impleaded, is wrong.
Mr. Kapil Sibal took us through the background in which
the impungned ordinance and th Act came to be passed. He
would submit that it had a great bearing on the legal issues
involved in this case. The State of Himachal Pradesh tried
its level best to get rid of the Service of the first
respondent. At first it issued a notification whereby the
right to continue as Chairman was interfered with. That was
questioned in W.P. 123/90. Finding the judgment was going
against the State, the State withdrew the notifications.
Thereafter, the State came forward with charge memo under
suspension order. They are pending in writ proceedings and
an interim stay of suspension is in operation. At this
stage, the ordinance is brought in because the executive
method failed to bring about the termination of his
services. At the relevant date of the ordinance no person
other than the first respondent was affected. In fact, the
State while writing for sanction for issue of ordinance
specifically mentions about this respondent by name. But at
the same time it would conceal from Govt. of India the fact
of the matter being sub judice. Though the Govt. of India
would request exploration of the possibility of amending the
rules under Section 78 of the Electricity (Supply) Act
because the rule could not have restrospective operation and
the first respondent could not be reached by such an
amendmentof the rules resort is had to the ordinance making
power under Article 213 of the Constitution.
Section 3(1) was aimed at only against this respondent.
This is undeniable. While the ordinance was under challenge
in writ petition before the High Court the amending Act came
to be passed. This back-ground has to be kept in mind to
appreciate the submissions made on behalf of this
respondent.
943
Under the Electricity (Supply) Act, there are two
provisions dealing with the appointments. One Section 5 and
the other is Section 8. The former Section deals with
initial appointment whilst Section 8 deals with
reappointment.
What the amending Act does by prescribing the
disqualification under Section 5(6) is to prevent future
appointments after attaining the age of 65 years. But,
even, here, there is no automatic cessation of office on
attaining the age of 65 years. While there is a power for
removal when a Member or Chairman of the Electricity Board
becomes a Member of Parliament, he could be removed under
Section 10, there is no such power in the event of the
Member or Chairman incurring the disqualification of age,
namely, the attainment of 65 years. Hence by merely
amending the law, it cannot be urged that the first
respondent having attained the age of 65 ceases to be a
Member or Chairman of the Electricity Board. Therefore,
Section 5(6) will not help the appellant.
Coming to Section 8 that deals with reappointment.
Such a reappointment is governed by the terms and conditions
as prescribed. The word “prescribed” means prescribed under
the rules. The rule making power is contained under Section
78(2) (a). Rule 4 as originally stood governed the
reappointment stating it could be under such conditions as
the State Govt. may from time to time, by order, direct.
There is a proposal to amend the rule. Even under those
rules namely Rules 3 and 4, the reappointment is thought of.
While care has been taken in this regard no amendment has
been effected to Section 8 prescribing the age limit of 65.
As a matter of fact, for a tenure appointment under Section
8, there never be a prescription of age of superannuation.
Such an appointment is beyond the pale of Section 5. Thus,
it is submitted Sections 5,8,10,78 (2) (a) provide a scheme
more so when Section 10 does not prescribe the age as a
disqualification.
In no statute an upper age limit could ever be a
disqualification, of course, the minimum age of recruitment
can be prescribed. But no an upper age limit for a tenure
appointment. It is common knowledge that only experienced
persons even after retirement are appointed as Chairman,
having regard to the vast experience and wide knowledge.
On the factual aspect, it is submitted by the learned
counsel, though the notifications dated 12.5.86 and 12.6.89,
use the word “extension” it is
944
nothing but reappointment. As a matter of fact the counter
affidavit of the State makes it clear that the order of
reappointment came to be passed under Section 5 read with
Section 8 rule 4. The statement of `Objects and Reasons’
also makes a reference to Section 8. Thus, both legally and
factually Section 5(6) cannot help the State.
Much cannot be made of the words “or begin” brought in
by way of amendment of Section 5(6). This only connotes
the attainment of age of 65 subsequent to the appointment.
When the Constitution uses similar language both under
Articles 102 and 191, it made it clear that under both the
Articles 101 as well as 190, the seat falling vacant
retrospectively on the incurring of such a disqualification
there is no automatic cessation provided under Section 10.
Thus the words “has attained” occurring under Section 5(6)
assumes great importance because there is no provision under
Section 10 prescribing age of disqualification and the
consequent removal. Even under Section 5(6), it supposes a
person being appointed before the age of 65 and attaining
the age of 65. Such a contingency does not arise here.
Therefore, it is submitted that Sections 5(6) and 3(1) of
the amending Act should be rad together. As regards the
amending Act, it cannot be denied that on the date of
ordinance it applied only to the respondent and nobody else.
While Section 5(6) takes care of future appointment Section
3(1) deals with reappointment. On the date of ordinance
Section 5(6) would apply to nobody else because this
respondent alone was holding a tenure appointment. The
legislation was brought about only with a view to unseat the
respondent. There can be a single persons legislation
provided it is in furtherance of legislative objects. The
burden is on the State to prove the reason or the basis for
this legislation. Such a burden had not been discharged.
Certainly, the reappointment stand apart. They
constitute a class by themselves. A person initially
appointed cannot be compared with a reappointee. The former
falling under Section 5(6) and the latter falling under
Section 8. If the respondent had been appointed after the
age of 65, he forms a class by himself. Therefore, the
State will have to be sore what exactly is the public
purpose served or a social or economic obligation. Further,
as a matter of fact, this was the test applied in all single
person’s legislation. In all such cases whenever it was
upheld either it was on the ground of mismanagement of the
institution or a mill, or because it was in furtherance of a
public purpose or a social or economic obligation.
945
In fact, in Ram Prasad Narayan Sahi and another v. The State
Bihar and Others, [1953] S.C.R. 1129 the mill was
mismanaged. In Lalit Narayan Mishra Institute of Economic
Development and Social Change, Patna etc v. State of Bihar
and Others etc., [1988] 3 S.C.R 311, the institute was not
only mismanaged, of course, the policy was to nationalise
all the institutions. Similarly, in Shri Ram Krishana
Dalmia v. Shri Justice S. R. Tendolkar & Others, [1959]
S.C.R. 279, and in Lachhman Das on behalf of Firm Tilak Ram
Ram Bux v. State of Punjab and Others, [1963] 2 S.C.R. 353,
the same test was applied. Likewise in Swastik. Rubber
Products Ltd. etc. etc. v. Municipal Corporation of the
City of Poona & Anr., [1982] 1 S.C.R. 729, it was a case of
mismanagement of industrial project. The case of Tilkayat
Shri Govindlalji Maharaj v. The State of Rajasthan and
Others, [1964]1 S.C.R. 561, Nathdwara Temple where there was
misapprobation of jewellery, likewise in the case of
Jagannatha Temple. Thus, it is clear but for mismanagement
or subserving a public cause or a social or economic
obligation, such pieces of single person’s legislation would
not have been upheld.
Certainly, there may be a legislation in general
application and it may apply to an individual; but that is
not the case here. On the date of the coming into force of
the Act this responent alone was affected. The amending Act
itself makes a discrimination without any justification or
rationale. If the respondent is treated alongwith others,
it would amount to treating unequals as equals.
Thus, it is submitted two principles will have to be
applied (1) the respondent having been appointed under
Section 8 constitutes a class; and (2) if the appointment of
the respondent is sought to be brought out under Section 5
it will bring a discrimination treating unequals as equals.
Therefore, the law will have to be struck down as
discriminatory and not that this respondent is attributing
malafides to the legislature.
Of course, in The Atlas Cycle Industries Ltd. Sonepat
v. Their Workmen, [1962] 3 S.C.R. 89 case, it applied only
to one individual. But that case is distinguishable for of
two reasons – (a) the benefit of extension was granted to
the individual and it was not an adverse order and (b) a
number of industrial adjudications were pending before the
authority whose permission was extended.
As regards impleading Chauhan, it is submitted where
this respon-
946
dent would choose to question the vires of the ordinance in
the Act, there was no need to implead Chauhan at all. As a
matter of fact, this respondent could not have asked for any
relief against Chauhan. Even otherwise, for an effective
adjudication of the points in issue there is no need for the
presence of Chauhan. In support of the submission reliance
is placed on A. Janaradhana v. Union of India and Others.
[1983] 3 S.C.C. 601 @ 626.
Beside, the order of appointment of Chauhan it is
stated “consequent until further orders.” Therefore, the
court could grant relief even in his absence. The cases the
side has cited can have no application because they related
to selection under one scheme only on the displacement of
selectees. The writ petitioners could be granted relief.
In fine it is submitted that where substantial justice has
been done by allowing the first respondent in office until
expiry of his term in July, 1992 by exercise of power under
Article 136 this court will not interfere as laid down in
Pritam Singh v. The State, [1950] 1 S.C.R. 453.
Mr. Shanti Bhushan in his elaborate reply would state
that Section 5(2) is the only source of appointment – both
initial as well as reappointment. Section 8 only deals with
tenure. Section 3(1) of the amending Act corresponds to
Articles 101(3) or 190(3). Therefore, it brings about an
automatic cessation of office.
It is incorrect to contend that for a tenure post, it
is not proper to prescribe an age limit. Instances are not
wanting where statutory provisions have been made to such an
effect. For instance, Article 224 of the Constitution in
relation to the Addl. Judge. Likewise Section 8 of the
Administrative Tribunals Act. Disqualification on account
of age, therefore, could be prescribed statutorily. Having
regard to the words “or being” occurring under Section 5(6),
the Section alone would be enough to deprive the first
respondent of his office after attaining the age of 65. In
this regard the learned counsel cites American Jurisprudence
(2nd Ed) vol 63, para 42.
The purpose of Section 3 is two-fold-one, by way of
abundant caution it provides for cessation of office, though
Section 5(6) itself would be enough. Secondly, it takes
away the right to emoluments after attaining the age of 65
and substituting by compensation, not withstanding the
contract to the contrary. Section 10(1)(d) is only an
enabling provision. That does not, in any manner, effect
the operation of Section 5(6). It is incorrect
947
to submit that this is a single person’s legislation. It is
of general application and it so happened on the relevant
date that the first respondent came to be affected. Lastly,
it is submitted on the basis of B. Prabhakar Rao and Others
v. State of Andhra Pradesh and Others, [1985] Supp. S.C.C.
432, that there is no need to dislodge Chauhan from office,
after all, he had been continuing so long. He may be
allowed for the remaining period of the tenure of the first
respondent. The court itself could fix the compensation
instead of even relegating matter to the State.
Having regard to the above arguments, the following
points arise for our determination :-
(i) The power of appointment under Section 5 and
the scope of Section 8 and 10 of the Electricity
(Supply) Act, 1948.
(ii) The effect of amendment under Section 5(6) of
the said Act.
(iii) The scope of Section 3 of Electricity
(Supply) (H.P. Amendment) Act of 1990. Whether it
is violative as single person’s legislation.
(iv) Whether the failure to implead Chauhan would
be fatal to the writ petition.
We will now deal with these points. In the normal
course of events the first respondent would have continued,
by virtue of his extension, upto 25.7.92. However,
consequent to the Assembly Elections held in the beginning
of 1990, there was a change of the Government. The fourth
respondent became the Chief Minister. From then on, the
first respondent met with an avalanche of misfortune. He
received successive blows. Hence he was obliged to wage
legal battles. That is why the learned counsel for the
first respondent would urge that all these attempts were
only with the sole aim of removing the first respondent from
office. the Executive having failed in its attempt resorted
to legislative process. It is unethical to do so. We are
afraid, we cannot decide the case on ethics. We are to
judge the law and the correctness of the legal provisions as
we see then. Therefore, we are to move from the ethical
plane to the legal plane.
In this case the State wants to introduce the age of
superannuation
948
prescribing an upper age limit of 65 for the Members and
Chairman of the Electricity Board. As a matter of fact,
hitherto, no such limit was found in the Electricity
(Supply) Act, 1948 (hereinafter referred to as the Supply
Act). Before the introduction of the amendment, the
appellant State of Himachal Pradesh wrote on 22.6.90 to the
Government of India, Ministry of Home Affairs for procuring
prior instructions from the President of India, as envisaged
in clause (1) of Article 213 of the Constitution. The
subject matter of the proposed ordinance falls under item 38
of List III (List III of the Seventh Schedule of the
Constitution of India). Item 38 deals with electricity.
Where, therefore, it was proposed to amend Section 5 of the
Supply Act (Central Act 54/48), in its application to the
State of Himachal Pradesh it had to be reserved for the
consideration of the President under Article 254(2) of the
Constitution. This was because if a Bill containing similar
provision after having been passed by the State Legislature
required to be so reserved for the consideration of the
President of India. However, it is important to note that
in this letter it was categorically stated that in most
administrative systems of the world an outer age limit is
provided. Such a provision is found with reference to
judicial officers and civil posts and is entrenched in
administrative and constitutional systems. Having regard to
the desirability of providing for a terminal point of time
beyond which a Chairman and the Members of the State
Electricity Board must cease to hold office by operation of
the statute, it was proposed to prescribe the age limit at
65 for retirement of the Chairman/Members of the Board.
The same point is reiterated as seen from the statement
of `Objects and Reasons’ for the Bill No. 6 of 1990, which
later on became Act 10 of 1990. We will now quote the
relevant portion of the said statement of Objects and
Reasons.
“Section 8 of the Electricity (Supply) Act, 1948
(Act No. 54 of 1948) provides that the Chairman and
other Members of the State Electricity Board shall
hold office for such period and shall be eligible
for reappointment under such conditions, as may be
prescribed. In other words no provision has been
made in respect of maximum age or period upto which
a person may serve as Chairman or Member of the
Board. Indeed, the provision after mandatory age
of superannuation or specification of age beyond
which an incumbent must cease to hold
949
office is vital and essential. In most
administrative systems of the world, an outer age
limit is provided. In our own country the concept
of the age of superannuation, in other words the
concept of the terminal point at which a person
should cease to hold judicial offices and civil
posts, are entrenched in our administrative and
constitutional systems. Public policy requires
that the concept of superannuation should be
applied to civil posts and offices. It was,
therefore, decided to prescribe the age of 65 years
for retirement of the Members of the Electricity
Board, as the retirement age of High Court Judges,
Members of the Administrative Tribunal, Members of
Public Service Commission and other high
functionaries has also been fixed. This
necessitated the amendments in the Electricity
(Supply) Act, 1948 in its application to the State
of Himachal Pradesh”.
Therefore, what does the State desire to do? It wants
to embark on a policy of retirement of the Chairman/Members
of the Electricity Board after attaining the age of 65
years. This Court is least concerned with the wisdom of the
policy.
Certainly, no one could quarrel with the introduction
of that measure as of policy. In fact this Court has
repeatedly recognised such a right of the State. It is
enough if we quote K.Nagaraj & Anr. etc. etc. v. State of
Andhra Pradesh & Anr. etc. A.I.R. 1985 S.C. 551. In para 7,
the court had occasion to observe thus :-
“Barring a few services in a few parts of the world
as, for example, the American Supreme Court, the
terms and conditions of every public service
provide for an age of retirement. Indeed, the
proposition that there ought to be an age of
retirement in public services is widely accepted as
reasonable and rational. The fact that the
stipulation as to the age of retirement is a common
feature of all of our public services establishes
its necessity, no less than its reasonableness.
Public interest demands that there ought to be an
age of retirement in public services. The point of
the peak level of efficiency is bound to differ
from individual to individual but the age of
retirement cannot obviously differ from individual
to individual
950
for that reason. A common scheme of general
application governing superannuation has therefore,
to be evolved in the light of experience regarding
performance levels of employees, the need to
provide employment opportunities to the younger
sections of society and the need to open up
promotional opportunities to employees at the lower
levels early in their career. Inevitably, the
public administrator has to counterbalance
conflicting claims while determining the age of
superannuation. On the one had, public services
cannot be deprived of the benefit of the mature
experience of senior employees; on the other hand,
a sense of frustration and stagnation cannot be
allowed to generate in the minds of the junior
members of the services and the younger section of
the society. The balancing of these conflicting
claims of the different segments of society
involves minute questions of policy which must, as
far as possible, be left to the judgment of the
executive and the legislature. These claims
involve considerations of varying vigour and
applicability. Often, the Court has no
satisfactory and effective means to decide which
alternative, out of the many competing ones, is th
best in the circumstances, of a given case. We do
not suggest hat every question of policy. Were it
so this Court would have declined to entertain
pricing disputes covering as wide a range as case
to mustard-oil. If the age of retirement is fixed
at an unreasonably low level so as to make it
arbitrary and irrational, the court’s interference
would be called for, though not for fixing the age
of retirement but for mandating a closer
consideration of the matter. “Where an act is
arbitrary, it is implicit in it that it is unequal
both according to political logic and
constitutional law and is therefore, violative of
Article 14; E.P. Royappa v. State of Tamil Nadu,
[1974] 2 SCR 348-AIR 1974 SC 555″. But, while
resolving the validity of policy issues like the
age of retirement, it is not proper to put the
conflicting claims in a sensitive judicial scale
and decide the issue by finding out which way th
balance tilts. That is an exercise which the
administrator and the legislature have to
undertake.”
For adumbrating this policy a legislation is enacted by
the State. It is not for this court to find out whether
there was any need for such a legislation. Of course, for
lack of legislative competence or for violation
951
of the right to equality under Article 14 etc. the validity
of the legislation may be scrutinised. But, certainly, that
is far from saying the court could examine the legislation
from the point of view that it came to be passed with
malafide intention. By long established practice, which has
received approbation through authorities of this Court, it
has always refrained from attributing malafides to the
legislature. In fact, such a thing is unknown to law. Here
again, we can usefully refer to the case K. Nagaraj & Others
etc. etc. v. State of Andhra Pradesh and Anr. etc., AIR
1985, 551. In para 36 it is stated as:-
“…. The legislature, as a body, cannot be accused
of having passed a law for an extraneous purpose.
Its reasons for passing a law are those that are
stated in the Objects and Reasons and if, none are
so stated, as appear from the provisions enacted by
it. Even assuming that the executive, in a given
case, has an ulterior motive in moving a
legislation, that motive cannot render the passing
of the law malafide. This kind of `transferred
malice’ is unknown in the field of legislation”.
It is in this background, therefore, we propose to
determine the above points.
1. The Power of Appointment under Section 5 and Scope
of Sections 8 and 10 of the Electricity (Supply) Act, 1948.
The Electricity (Supply) Act, 1948 (hereinafter
referred to as the Act is to provide for rationalisation of
the production and supply of electricity and generally for
taking measures conducive to electrical department. Chapter
III of the said Act deals with the State Electricity Boards,
Generating Companies, State Electricity Consultative
Councils and Local Advisory Committees. Section 5 read as
under :-
“5 Constitution and Composition of the State
Electricity
Boards-(1) The State Government shall, as soon as
may be after the issue of notification under sub-
section (4) of Section 1, constitute by
notification in the Official Gazette a State
Electricity Board under such name as shall be
specified in the notification.
(2) The Board shall consist of not less than three
and not more
952
than seven members appointed by the State
Government.
(3) … Omitted by Act 57 of 1949, S.4.
(4) Of the members –
(a) One shall be a person who has experience of
and has shown capacity in, commercial matters
and administration;
(b) one shall be an electrical engineer with
wide experience; and
(c) one shall be a person who has experience of
accounting and financial matters in a public
utility undertaking, preferably and electricity
supply undertaking.
(5) One of the members possessing any of the
qualifications specified in sub-section (4) shall
be appointed by the State Government to be the
Chairman of the Board.
(6) A person shall be disqualified from being
appointed or being am member of the Board if he is
a member of (Parliament) or of any State
Legislature or any local authority.
(7) No act done by the Board shall be called in
question on the ground only of the existence of any
vacancy in, or any defect in the constitution of,
the Board.”
Thus, it will be seen that State Government is to
constitute, by notification, the State Electricity Board.
The minimum member of the Board shall be 3 while the maximum
shall be 7. The Chairman could be any one of the members
who possesses such qualifications as prescribed under Sub-
section(4). Sub-section(6) talks of disqualification – (1)
member being appointed and (2) or being a member of the
Board if he is a member of Parliament or of any State
Legislature or any local authority.
Prior to the amendment in 1960, this disqualification
must have been incurred within the 12 months last preceding.
What is important for our purpose is there is a
disqualification for appointment in future when it says
“shall be disqualified from being appointed”. Equally, “or
being” means if
953
such a disqualification is incurred after the appointment
during the tenure of membership of the post. Therefore, the
words “or being” have great significance.
We will come to the effect of amendment of Section 5(6)
later after dealing with the relevant sections of this Act.
Section 8 reads as follow :-
“Term of office and conditions for re-appointment
of members of the Board – The Chairman and other
members of the Board shall hold office for such
period, and shall be eligible for reappointment
under such conditions, as may be prescribed.”
A Careful reading of the Section will clearly disclose
the section merely talks of term of office and conditions
for reappointment. Those conditions may be a prescribed.
The word `prescribed’ has come to be defined under Section
2(9) of the said Act. “Prescribed” means prescribed made by
rules under this Act. Nowhere in this Section, in our
considered view, an additional power for appointment is
conferred. At best it could be said that it merely lays
down the eligibility for reappointment. As stated above,
that eligibility must be as per conditions prescribed under
the rules. As a matter of fact, when it says “shall hold
the office for such period” it means the period as
prescribed under the rules. Beyond this, we are unable to
persuade ourselves to come to the conclusion that there is
any separate power for reappointment. It is not even
necessary to provide for such a separate power. The reason
why we say so is Sections 14 and 16 of Central General
Clauses Act provide for such a power. Section 16 deals with
the power of appointment carrying with it the power of
dismissal, while Section 14 states any power conferred
unless a different intention appears could be exercised from
time to time as occasion requires. Where, therefore,
Section 5 provides for a power to appoint, certainly, that
power could be exercised from time to time as occasion
requires. Thus one need not search. for a separate
provision in this regard. We may also note that the
prescriptions in relation to the term was contained under
Electricity (Supply) HP Amendment) Act, 1990. Under rule 4
of the said Rule, it is stated thus :-
“4. Term of Office – (1) The Chairman and other
Members shall be appointed by the State Government
and hold office for such period and shall, on the
expiration of their terms office,
954
be eligible for reappointment under such conditions
as the State Government may from time to time by
order direct. (2) No whole-time Member so long as
he continues as Member shall accept any assignment
other than that of the Board without the prior
permission of the Government.
Even there no further prescription is found excepting
as laid down under the conditions stipulated by the State
Government from time to time.
Then we come to Section 10. That Section deals with
removal or suspension of members as follows :-
“Removal or suspension of members. (1) The State
Government may suspend from office for such period
as it thinks fit or remove from office any member
of the Board who-
(a) is found to be a lunatic or becomes of unsound
mind; or
(b) is adjudged insolvent; or
(c) fails to comply with the provisions of Section
9; or
(d) become or seeks to become a member of
Parliament or any State Legislature or any local
authority; or
(e) in the opinion of the State Government-
(i) has refused to act; or
(ii) has become incapable of acting ; or
(iii) has so abused his position as to render his
continuance on the Board detrimental to the
interests of the general public’ or
(iv) is otherwise unfit to continue as a member;
or
(f) is convicted of an offence turpitude.
(2) The State Government may suspend any member
pending an inquiry against him.
955
(3) No order of removed shall be made under this
section unless the member concerned has been given
an opportunity to submit his explanation to the
State Government, and when such order is passed,
the seat of the member removed shall become vacant
and another member may be appointed under Section 5
to fill up the vacancy.
(4) A member who has been removed shall not be
eligible for reappointment as member or in any
other capacity to the Board.
(5) If the Board fails to carry out its functions,
or refuses or fails to follow the directions issued
by the State Government under this Act, State
Government may remove the Chairman and the members
of the Board and appoint a Chairman and members in
their places.”
In our view this Section confers an enabling power on
the State Government to take punitive action against a
member of the Board who falls under any one of the clauses
(a) to (f). The fact that it is punitive is clear because
Sub-section (3) contemplates giving an opportunity to offer
an explanation and thereafter removing him. Once so removed,
he is ineligible for reappointment either as a Member or any
other capacity in the Board.
As to why after amending Section 5(6) the State has not
correspondingly amended Section 10 so as to include cases of
Members or Chairman attaining the age of 65 we will consider
while dealing with the scope of amendment to Section 5(6).
The next Section that has to be looked at is Section 78,
i.e. the rule making section. Sub-section (1) of Section 78
as is usual talks of the State Government making rule giving
effect to the Act. Sub-section (2), catalogues without
prejudice to the generality of this power, as to what all
the rules may provide for. Certainly, it cannot be contended
that the items catalogued in Sub-section (2) are exhaustive.
It is merely illustrative. Under Sub-section (2) (a) it is
stated that the rules may provide for (i) the powers of the
Chairman and the term of office of the Chairman and other
members of the Board, (ii) the conditions under which they
shall be eligible for reappointment and (iii) their
remuneration, allowances and (iv) other
956
conditions of service.”
One thing that is striking is rules may themselves
provide for eligibility for reappointment. In this
connection it may not be out of context to refer to the
letter of the Ministry of Home Affairs asking the State to
explore the possibility of making rules instead of amending
the Act. This was at a time when the State Government sought
the assent of the President. Where, therefore, rules could
provide for the conditions for eligibility for
reappointment, equally it should follow by amending the Act
such eligibility for reappointment can be provided. In the
conspectus of this Section it would be thus clear – (1)
there is only one source of power of appointment contained
under Section 5; (2) there is no seperate power in relation
to reappointment under Section 8; (3) Section 10 is only an
enabling power for taking punitive action against such of
those members who fall under clauses (a) to (f) of the said
Section and (4) Section 78(2)(a) confers a power upon the
State Government to frame rules.
The effect of Amendment under Section 5(6) of the said
Act
With this we pass on to the amending section of 5(6), by
Act 10 of 1990. The amendment was carried out to section
5(6) is as follows. This can be brought out succinctly by a
tabulated statement :-
STATEMENT OF PROVISIONS LIKELY TO BE AFFECTED BY
THE AMENDMENT BILL
————————————————————
Section Provisions as exist Provisions as will
stand after the
enactment of the
Bill
(1) (2) (3)
————————————————————
5. Constitution and Compositi- 5. Constitution and Compos-
on of State Electricity Board- ition of State Electricity
Board-
(1) The State Govt. shall, as (1) The State Govt.shall,
soon as may be after the as soon as may be after the
issue of the notification issue of the notification
under sub-section (4) of under sub-section (4) of
sec. 1, constitute by noti- sec. 1, constitute by
fication in the Official notification in the Offic-
Gazette a State Electricit- ial Gazette a State Elect-
y Board under sub name as ricity Board under sub na-
shall be specified in the me as shall be specified
notification. in the notification.
957
(2) The Board shall consist (2) The Board shall co-
of not less than three and nsist of not less than th-
not more than seven members ree and not more than sev-
appointed by the State Govt. en members appointed by t-
he State Govt.
(3) X X X (3) X X X (4) Of the members- (4) Of the members-
(a) one shall be person who (a) one shall be person w-
has experience of, and has ho has experience of, and
shown capacity in commercial has shown capacity in
mat-ters and administration, commercial mat-ters and ad-
ministration,
(b) one shall be an Electric- (b) one shall be an Electri-
al Engr. with wide experience, cal Engr. with wide experi-
and ence, and
(c) one shall be a person who (c) one shall be a person
has experience of accounting who has experience of acco-
and financial matters in a p- unting and financial matte-
ublic utility undertaking, rs in a public utility und-
preferably an electric supply ertaking, preferably an el-
undertaking. ectric supply undertaking.
(5) One of the members posses- (5) One of the member Pos-
sing of the qualifications sp- sessing of the qualificat-
ecified in sub-sec. (4)shall ions specified in sub-sec.
be appointed by the State Govt. (4) shall be appointed by
to be the Chair-man of the Boa- the State Govt. to be the
rd. Chairman of the Board.
(6) A person shall be disquali- (6) A person shall be dis-
fied from being appointed or qualified from being appo-
being a member of the Board if inted or being a member of
he is a member of Parliament or the Board he has attained
any State Legislature or any l- the age of 65 years or is
ocal authority. a member of Parliament of
any State Legislature or
any local authority.
————————————————————
The effect of amendment Section 5(6) is that it
introduces a new disqualification “if he has attained the
age of 65 years”. This disqualification is not only for
being appointed, namely, with reference to future
appointment, but even with regard to a supervening
disqualification cover-
958
ing cases of those who have attained the age of 65 years and
being a member of the Board. As already stated, the words
“or being” are of considerable import. As to what is the
meaning of these words can be gathered by two rulings of
this Court which came to deal with the similar language
employed. (Article 102 in relation to Members of
Parliament).
In Election Commission, India v. Saka Venkata Subba Rao,
[1953] SCR 1144 @ 1157 it was observed as under :-
“The use of the word “become” in articles 190(3)
and 192(1) is not inapt, in the context, to include
within its Scope pre-existing disqualifications
also, as becoming subject to a disqualification is
predicated of “a member of a House or Legislature”,
and a person who, being already disqualified, gets
elected, cannot inappropriately, be said to
“become” subject to the disqualification as a
member as soon as he is elected. The argument is
more ingenious than sound. Article 191, which lays
down the same set of disqualifications for election
as well as for continuing as a member, and Article
193 which prescribes the penalty for sitting and
voting when disqualified, are naturally phrased in
terms wide enough to cover both pre-existing and
supervening disqualifications; but it does not
necessarily follow that articles 190(3) and 192(1)
must also be taken to cover both. Their meaning
must depend on the language used which, we think,
is reasonably plain”.
In Pashupati Nath Sukul etc. v. Nem Chandra Jain and
Others, [1984] 2 S.C.C. 404 @ 417, in para 18 it is stated
as under :-
“Article 191 of the Constitution prescribes the
disqualifications for membership of the
Legislative Assembly or Legislative Council of a
State, on the incurring of any such
disqualification a member of a Legislative Assembly
or a Legislative Council ceases to be a member
thereof.”
lm
Therefore, it will follow that once this
disqualification of attaining the age of 65 years is
incurred, there is an automatic cessation from holding
office. This is because Section 5(6) contains the same
phrascology as is found under Article 102 and 191. In our
considered view Section 5(6) applies to initial appointment
as well as to those continuing in appointment. We will also
usefully refer to American Jurisprudence (Vol. 63), at para
42, it is stated thus:-
959
“Disqualification arising after election and before
or during term. – Eligibility to public office is
of a continuing nature and must exist at the
commencement of the term and during the occupancy
of the office. The fact that the candidate may have
been qualified at the time of his election is not
sufficient to entitle him to hold the office, if
at the time of the commencement of the term or
during the continuance of the incumbency he ceases
to be qualified”.
It is rather unfortunate that the High Court has missed
the true import of the words “or being”. Therefore, we are
unable to subscribe to the findings of the High Court when
it states “the provision lays down the age of superannuation
for a member prospectively which disqualifies a person from
being appointed or being a member after he attains the age
of 65 years” by itself it does not affect those who had been
given appointment after having attained the age of 65 years.
The Legislature was conscious of it, but thought of enacting
a provision like Section 3 on that account.
We are unable to see any warrant for holding that
Section 5(6) as amended having regard to the use of language
“or being” would any way exclude such of those members or
even the Chairman who have attained the age of 65 years of
age at the time of appointment. According, we conclude that
Section 5(6) itself would be enough to hold that on the
coming into force of the amending Act, namely, 13.7.90 the
first respondent ceases to hold the office by the rigour of
law, as rightly contended by Mr. Shanti Bhushan, learned
counsel for the appellant.
Now we shall proceed to consider as to why a
corresponding amendment has not been provided by
incorporating this disqualification. The argument of Mr.
Kapil Sibal is that the attaining of 65 years is not to be
considered as disqualification as otherwise Section 10 would
provide for such a situation. It has already been seen that
Section 10 merely confers an enabling power to take punitive
action. It is one thing the State has power to take puritiv
action, it is entirely different thing to say that in law
the first respondent ceases to hold office on the incurring
of the disqualification of attainment of 65 years of age. If
Section 5(6) itself brings about a cessation of office, that
Sub-section being self-executory in nature,
960
there is no need to provide for the same under Section 10
once over again. Merely because the parent Act (Central
Legislation) provides for a disqualification on account of
becoming a Member of Parliament, State Legislature or Local
Board, that does not mean there must be a corresponding
provision incorporating age as well under Section 10. We are
unable to agree with Mr. Kapil Sibal. Equally, the
contention that Section 5(6) only deals with initial
appointment and would not cover a case of reappointment
after attaining the age of 65 is wholly unacceptable to us.
First of all, as we have stated earlier there is no question
of any seperate power for reappointment under Section 8 and
the only power being traceable to Section 5 read with
Sections 14 and 16 of the General Clauses Act.
Factually we will now consider whether this is a case of
reappointment at all. The original order to appointment of
the first respondent was on 24.7.1981, first as a Member and
as Chairman for a period of 2 years. These two orders of
appointment do not concern very much.
The next comes the appointment dated 13.8.1982, when the
first respondent came to be appointed as Chairman of
Himachal Pradesh State Electricity Board. Though during the
narration of facts we have referred to this order, it is
worthwhile to quote it once over again in full as something
material turns on this.
“GOVERNMENT OF HIMACHAL PRADESH
DEPARTMENT OF PERSONNEL-II
No. 8- 155/73 – DP (Apptt. II) Dated Shimla -2, the 13th
Aug, 1982.
NOTIFICATION
In exercise of the powers conferred by section 5 of
the Electricity (Supply) Act, 1948, the Governor,
Himachal Pradeshm, is pleased to appoint Shri
Kailash Chand, Retd. Chief Engineer (Irrigation)
Punjab, whose appointment as Member, H.P. State
Electricity Board, has been notified vide
Notification of even number, dated the 24th July,
1981, as Chairman, H.P. State Electricity Board for
a period of five years, with effect from 25th July,
1981. Detailed terms and conditions of his
appointment has already been issued separately.
961
This is in supersession of this Deptt. Notification
of even number, dated the 24th July, 1981.
By Order
K.C. Pandeya
Chief Secy. to the
Govt. of Himachal Pradesh”.
As seen from the above, the number of the order is 8-
155/73-DP (Apptt-II). The next order of extension bears the
same number dated 12.5.86. That also clearly states “in
continuation of this Department’s notification of even
number dated 13.8.82, the Governor of Himachal Pradesh is
pleased to extend the appointment” This extension is for a
period of three years. Then comes the last extension on
12.6.89 which also bears the number 8/155/73 – DP (Apptt-
II). Again, the notification reads “in continuation of this
Department’s notification of even number dated 12.5.1986,
the Governor of Himachal Pradesh is pleased to extend the
appointment”. Therefore, where the original appointment
dated 12.5.86 is extend from time to time, it is futile to
contend that these are fresh appointments. While we are on
this we have also get to refer to the counter affidavit of
the State filed in the writ petition before the High Court.
In para 12 it is stated as follows :-
“The contents of para 12 of the petition, as
stated, are wrong and hence denied. It is
emphatically denied that the power was exercised
malafide and was colourable exercise of power or
was a fraud on power. The power has been exercised
within the legal ambit of Section 5 read with
Section 8 of the Act and the rules framed
thereunder.”
From this we are unable to see how any help could be
derived by the first respondent to base his arguments that
the power of reappointment is traceable to Section 8. This
aspect of the matter had already been dealt with by us.
The statement of `Objects and Reasons’ makes a reference
to Section 8. But it does not again mean there is an
independent power of appointment. What the above extract of
counter affidavit and reference to Section 8 mean is denial
of malafide. Besides, hitherto no outer age limit has been
962
prescribed for the post of Chairmanship. It is that which
is sought to be prescribed now. The reference to Section 8
means only the “term” and nothing else.
We are also unable to accept the arguments advanced on
behalf of the first respondent that for a tenure post no
period can be fixed. Instances are not wanting in this
regard. Therefore, rightly reference is made by Mr. Shanti
Bhushan to Article 224 of the Constitution extract of which
is given below:-
“224. Appointment of additional and acting Judges –
(1) If by reason of any temporary increase in the
business of a High Court or by reason of arrears of
work therein, it appears to the President that the
number of the Judges of that court should be for
the time being increased, the President may
appoint duly qualified persons to be additional
Judges of the Court for such period not exceeding
two years as he may specify.
(2) When any Judge of a High Court other than the
Chief Justice is by reason of absence or for any
other reason unable to perform the duties of his
office or is appointed to act temporarily as Chief
Justice, the President may appoint a duly qualified
person to act as a Judge of that Court until the
permanent Judge has resumed his duties.
(3) No person appointed as an additional or
acting Judge of a High Court shall hold office
after attaining the age of (Sixty- two years)”.
Again, a reference can be made to Section 8 of the
Administrative Tribunals Act. That Section reads as
follows :-
“Term of Office – The Chairman, Vice Chairman
or other Member shall hold office as such for a
term of five years from the date on which he enters
upon his office, but shall be eligible for
reappointment for another term of five years :
Provided that no Chairman, Vice-Chairman or
other Members shall hold office as such after he
has attained –
(a) in the case of the Chairman or Vice-
Chairman, the age
963
of sixty five years, and
(b) in the case of any other Member, the age of
sixty-two years”.
Therefore, where the State has taken a policy decision
to prescribe an outer age limit for the Members or the
Chairman of the Electricity Board it is perfectly legal.
The scope of Section 3 of Electricity (Supply), (H.P.
Amendment) Act, 1990 and whether it is bad as single
person’s legislation.
Section 3 of the Amendment Act reads as follows :-
“3. (1) Notwithstanding anything to the contrary
contained in any provisions of the Electricity
(Supply) Act, 1948, rules, regulations or bye-laws
made thereunder or in any judgement decree or order
of the court or in any contract, any appointment
made before the commencement of the Electricity
(Supply) (Himachal Pradesh Amendment) Act, 1990,
whereby a person has a right to continue as a
member of the Board after attaining the age of 65
years, shall be void; and on such commencement he
shall be deemed to have ceased to hold office of
the member of the Board.
(2) On ceasing to hold office of the member of the
Board under sub-section (1) such member shall be
entitled to compensation as may be determined by
the State Government; but such compensation shall
not exceed the amount equivalent to the amount of
salary and allowances payable to him for his
unexpired term”.
One thing that is significant is it contains a `non-
obstante’ clause. An appointment of a Member of the Board
made prior to the commencement to this Act namely, 13.7.90
(giving retrospective operation) when gives a right to
continue as a member after attaining the age of 65 years,
that appointment is rendered void.
This non-obstante clause is a sweep. It applies (1)
notwithstanding anything to the contrary in any provisions
of the Electricity (Supply) Act; (2) rules and regulations,
bye-laws made therein; (3) any judgment, decree or order of
the court; and (4) any contract.
964
Once it is so rendered void, the law deems that he has
ceased to hold office of the Member of the Board. By a
reading of the Section we are unable to conclude how Section
3(1) would fail to apply to a person who on the date of the
commencement was already more than 65 years. This line of
reasoning adopted by the High Court does not appeal to us.
The Section nowhere makes a distinction between those on the
date of the enactment are “below” or “over” 65 years of age.
Such a distinction is totally unwarranted. The crucial
question to be asked is whether the particular incumbent is
continuing after the attainment of 65 years of age, if that
question is answered in the affirmative there is a cessation
of office, in view of the terms of that Section. The
contrary conclusion would lead to strange results. Those who
are appointed prior to the Act and on the attainment of 65
years on 13.7.90, would vacate the office while a person
already 65 on that date and after the passing of the Act
notwithstanding the policy of prescribing the age of
superannuation of 65 years would continue in the office. The
object of introducing an age of superannuation itself is to
weed out the older elements and infuse fresh blood so that
the administration could function with vigour.
Mr. Kapil Sibal, learned counsel for the first
respondent would submit that legislative intention has not
been brought out clearly. In this connection we will do well
to refer to Francis Bennion’s Statutory Interpretation (1984
edn.) at page 237. The distinction between the legislative
intention and the purpose object of the legislation has been
succinctly summarised as under:-
“The distinction between the purpose or object of
an enactment and the legislative intention
governing it is that the former relates to the
mischief to which the enactment is directed and its
remedy, while the latter relates to the legal
meaning of the enactment”.
Thus there is a great distinction between the two. While
the object of legislation is to provide a remedy for the
malady. On the contrary, the legislative intention relates
to the meaning from the exposition of the remedy as enacted.
For determining the purpose of object of legislation,
indeed, it is permissible to look into the circumstances
which were prevalent at that time when the law was enacted
and which necessitated the passing of that enactment. For
the limited purpose of appreciating
965
the background and the antecedents factual matrix leading to
the legislation it is open to the court to look into the
statement of `Objects and Reasons’ of the Bill which
accentuated to provide a remedy for the then existing
malady. In the case of State of West Bengal v. Union of
India, [1964] 1 SCR 371, this court ruled that the statement
of `Objects and Reasons’ accompanied a Bill when introduced
in Parliament can be used for the limited purpose of
understanding, the background and state of affairs leading
up to the legislation. Therefore, we now look into the
statement of `Objects and Reasons’. That clearly brings out
the object of the desirability of introducing an age of
superannuation as the same is entrenched in our
administrative and constitutional systems. With this object
in view, Section 3 intends that no one has a right to
continue as a member of the Board after attaining the age of
65. Thus, the only conclusion possible is, by reason of
appointment if the incumbent is enable to continue after
attaining the age of 65 years such continuing is rendered
void.
No doubt as we have stated above, Section 5(6) as
amended achieves this purpose. Yet if there is another
Section which deals with the same it must be regarded as one
introduced by way of abundant caution. In short, Section
3(1) is epexegesis.
The arguments advanced by Mr. Kapil Sibal remind us of
the eloquent words of Dr. Johnson “There is a wicked
inclination in most people to supppose an old man decayed in
his itellects. If a young or middle-aged man, when leaving a
company, does not recollect where he laid his hat, it is
nothing; but if the same inattention is discovered in an old
man, people will shrug up their shoulders, and say, `His
memory is going’.”
It our opinion such sentiments can be no answer against
the operation of law.
In might be argued by the tenure of appointment there is
a right to continue; the legitimate expectation has come to
be interfered with. In a matter of this kind, as to whether
legitimate expectation could be pleaded is a moot point.
However, we will now refer to Wade’s Administrative Law (6th
Edition) wherein it is stated at page 520-21, as under :-
“Legitimate expectation : positive effect
966
The classic situation in which the principles of
natural justice is where some legal right, liberty
or interest is affected, for instance where a
building is demolished or an office-holder is
dismissed or a trader’s license is revoked. But
good administration demands their observance in
other situations also, where the citizen may
legitimately expect to be treated fairly. As Lord
Bridge has explained :
Re Westminister CC (1986) AC 668 at 692. Lord
Diplock made a formal statement in the Council of
Civil Service Unions case (below) at 4408, saying
that the decision must affect some other person
either – (a) by altering rights or obligations of
that person which are enforceable by or against him
in private law; or (b) by depriving him of some
benefit or advantage which either (i) he had in the
past been permitted by the decision-maker to enjoy
and which he can legitimately expect to be
permitted to continue to do until there has been
communicated to him some rational grounds for
withdrawing it on which he has been given an
opportunity to comment; or (ii) he has received
assurance from the decision-maker will not be
withdrawn without giving him first an opportunity
of advancing reasons for contending that they
should not be withdrawn.
This analysis is `classical but certainly not
exhaustive : R. Secretary of State for the
Environment ex. P. Nottinghamshire CC (1986) AC 240
at 249 (Lord Scarman). One case which does not seem
to be covered is that of a first-time applicant for
a licence (below. p. 559). The courts have
developed a relatively novel doctrine in public law
that a duty of consultation may arise from a
legitimate expectation of consultation aroused
either by a promise or by an established practice
of consultation”.
In a recent case, in dealing with legitimate expectation
in R. v. Ministry of Agriculture Fisheries and Food, ex
parte Jaderow Ltd and Others, [1991] All England Law Reports
41. It has been observed at page 68 :-
“Question II : Legitimate Expectation: It should be
pointed out in this regard that, under the powers
reserved to the member states by Art. 5(2) of
Regulation 170/83, fishing activities could
967
be made subject to the grant to licences which, by
their nature, are subject to temporal limits and to
various conditions. Furthermore, the introduction
of the quota system was only one event amongst
others in the evolution of the fishing industry,
which is characterised by instability and
continuous changes in the situation due to a series
of events such as the extensions, in 1976, of
fishing areas to 200 miles from certain coasts of
the community, the necessity to adopt measures for
the conservation of fishing resources, which was
dealt with at the international by the introduction
of total allowable catches, the arguments about the
distribution amongst the members states of the
total allowable catches available to the
Community, which were finally distributed on the
basis of a reference period which ran from 1973 to
1978 but which is reconsidered every year.
In those circumstances, operators in the fishing
industry were not justified in taking the view that
the Community rule precluded the making of any
changes to the conditions laid down by national
legislation or practice for the grant of licences
to fish against national quotas or the adoption of
new conditions compatible with community Law.
Consequently, the answer to this question must be
that Community Law as it now stands does not
preclude legislation or a practice of a member
state whereby a new condition not previously
stipulated is laid down for the grant of licences
to fish against national quotas.”
Thus, it will be clear even legitimate expectation
cannot preclude legislation.
Where the right to continue in office has been put an
end to by statute, even then it may be complained that the
other rights like salary and perks would continue to be
reserved and they could be claimed. To avoid that
contention, Section 3(2) provides for compensation
equivalent to the amount of salary and allowances for the
unexpired term of office.
Even assuming that the reasoning of the High Court is
correct, in that, by the term of appointment he should have
a right to continue after
968
attaining the age of 65, when we look at the notification
dated 12.6.89, that lives the first respondent a right to
continue beyond the age of 65.
Then the question will be whether it is a single
person’s legislation. The argument and the counter arguments
proceed thus. Mr. Shanti Bhushan would urge that it
happened at the time of enactment only the first respondent
had attained the age of 65 years and, therefore, it could
not be called a single man’s legislation since it affects
everyone. On the contrary, the argument of Kapil Sibal is
that only the first respondent alone could be affected and,
therefore, it is a single person’s legislation being
violative of Article 14 of the constitution. We will look at
the relevant case law which deals with single person’s
legislation and how far they are violative of Article 14. In
Chiranjit Lal Chowdhury v. The Union of India and Others,
[1950] 1 S.C.R. 869, the head note reads :
“Held also per KANIA C.J., FAZAL ALI, and MUKHERJEA
JJ.- (PATANJALI SASTRI AND DAS,JJ. dissenting) –
that though the Legislature had proceeded against
one company only and its shareholders inasmuch as
even one corporation or a group of persons can be
taken to be a class by itself for the purpose of
legislation, provided there is sufficient basis or
reason for it and there is a strong presumption in
favour of the constitutionality of an enactment,
the burden was on the petitioner to prove that
there were also other companies similarly situated
and this company alone had been discriminated
against, and as he had failed to discharge this
burden the impugned Act cannot be held to have
denied to the petitioner the right to equal
protection of the laws referred to in Art. 14 and
the petitioner was not therefore entitled to any
relief under Art. 32.”
In Shri Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar & Others, [1959] S.C.R. 1959 296-299,
it has been held thus :-
“…It is now well established that while article
14 forbids class legislation, it does not forbid
reasonable classification for the purposes of
legislation. In order, however, to pass the test of
permissible classification two conditions must be
fulfilled, namely, (i) that the classification must
be founded on an intelligible differentia which
distinguishes persons or things that are
969
grouped together from others left out of the group
and, (ii) that that differentia must have a
rational relation to the object sought to be
achieved by the statute in question. The
classification may be founded on different hases,
namely, geographical, or according to objects or
occupations or the like. What is necessary is that
there must be a nexus between the basis of
classification and the object of the Act under
consideration. It is also well established by the
decisions of this Court that article 14 condemns
discrimination not only by a substantive law but
also by a law of procedure”. The principle
enunciated above has been consistently adopted and
applied in subsequent cases. The decisions of this
Court further establish –
(a) that a law may be constitutional even though it
relates to a single individual, on account of some
special circumstances or reasons applicable to him
and not applicable to others, that single
individual may be treated as a class by himself ;
(b) that there is always a presumption in favour of
the constitutionality of an enactment and the
burden is upon him who attacks it to show that
there has been a clear transgression of the
constitutional principles ;
(c) that it must be presumed that the legislature
understands and correctly appreciates the need of
its own people, that its laws are directed to
problems made manifest by experience and that its
discriminations are based on adequate grounds ;
(d) that the legislature is free to recognise
degrees of harm and may confine its restrictions to
those cases where the need is deemed to be the
clearest ;
(e) that in order to sustain the presumption of
constitutionality the court may take into
consideration matters of common knowledge, matters
of common report, the history of the times and may
assume every state of facts which can be conceived
existing at the time of legislation ; and
(f) that while good faith and knowledge of the
existing conditions on the part of a legislature
are to be presumed, if there
970
is nothing on the face of the law or the
surrounding circumstances brought to he notice of
the court on which the classification may
reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the extent
of always holding that there must be some
undisclosed and unknown reasons for subjecting
certain individuals or corporations to hostile or
discriminating legislation.
The above principles will have to be constantly
borne in mind by the court when it is called upon
to adjudge the constitutionality of any particular
law attacked as discriminatory and violative of the
equal protection of the laws.
A close persual of the decisions of this Court in
which the above principles have been enunciated and
applied by this Court will also show that a statute
which may come up for consideration on a question
of its validity under Art. 14 of the Constitution,
may be placed in one or other of the following five
classes :-
(i) A statute may itself indicate the persons or
things to whom its provisions are intended to apply
and the basis of the classification of such persons
of things may appear on the face of the statute or
may be gathered from the surrounding circumstances
known to or brought to the notice of the Court. In
determining the validity or otherwise or such a
statute the court has to examine whether such
classification is or can be reasonably regarded as
based upon some differentia which distinguishes
such persons or things grouped together from those
left out of the group and whether such differentia
has a reasonable relation to the object sought to
be achieved by the statute, no matter whether the
provisions of the statute are intended to apply to
a particular person or thing or only to a certain
class or persons or thing. Where the Court finds
that the classification satisfies the tests, the
court will uphold the validity of the law, as it
did in Chiranjital Chowdhari v. The Union of India,
The State of Bombay v. F.N. Balsara, Kedar Nath
Bajoria v. The State of West Bengal V.M. Sved
Mohammad & Company v. The State of Andhra and
Bhushan Choudhary v. The State of Bihar.
971
(ii) A statute may direct its provisions against
one individual person or thing or to several
individual persons or things but no reasonable
basis of classification may appear on the face of
it or be deducible from the surrounding
circumstances, or matters of common knowledge. In
such a case the court will strike down the law as
an instance of naked discrimination, as it did in
Ammerunnissa Begum v. Mahboob Begum and Ramprasad
Narain Sahi v. The State of Bihar.”
From the proposition it is clear that there could a
legislation relating to a single person. Assuming for a
moment, that the Section 3 applies only to the first
respondent even then, where it is avowed policy of the State
to introduce an age of superannuation of 65 years of age,
there is nothing wrong with the same.
In Lachhman Das on behalf of firm Ram Ram Bux v. State
of Punjab and Others [1963] 2 S.C.R. 353 @ 375, it is held
as thus :-
“…Professor Willis says in his Constitutional Law
p.580 “a law applying to one person or one class of
persons is constitutional if there is sufficient
basis or reason for it”. This statement of law was
approved by this Court in Chiranjit Lal Chowdhry v.
Union of India“.
Therefore, on this principle Patiala State Bank was
held to be a class by itself and it would be within the
power of the State to enact a law with respect to it.
In Tilkyat Shri Govindlalji Maharaj v. The State of
Rajasthan and others, [1964] S.C.R. 561 @ 617-18, it is held
as thus :-
“That takes us to the argument that the Act is
invalid because it contravenes Act. 14. In our
opinion, there is no substance in this argument. We
have referred to the historical background of the
present legislation. At the time when Ordinance
No. II of 1959 was issued, it had come to the
knowledge of the Government of Rajasthan that
valuables such a jewelleries, ornaments, gold and
silver-ware and cash had been removed by the
Tilkayat in the month of December 1957, and as the
successor of the State of Mewar, the State of
Rajasthan had to
972
exercise its right of supervising the due
administration of the properties of the temple.
There is no doubt that the shrine at Nathdwara
holds a unique position amongst the Hindu shrines
in the State of Rajasthan and no temple can be
regarded as comparable with it. Besides, the
Tilkayat himself has entered into negotiations for
the purpose of obtaining a proper scheme for the
administration of the temple properties and for
that purpose, a suit under s.92 of the Code had in
fact been filed. A Commission of Enquiry had to be
appointed to investigate into the removal of the
valuables. If the temple is a public temple and
the legislature though that it was essential to
safe guard the interests of the temple by taking
adequate legislative action in that behalf, it is
difficult to appreciate how the Tilkayat can
seriously contend that in passing the Act, the
legislature has been guilty of unconstitutional
discrimination. As has been held by this Court in
the case of Shri Ram Krishna Dalmia v. Shri Justice
G.R. Tendolkar, that a law may be constitutional
even though it relates to a single individual if,
on account of some special circumstances or reasons
applicable to him and not applicable to others,
that single individual may be treated as a class by
himself. Therefore, the plea raised under Art.14
fails.
In Lalit Narayan Mishra Institute of Economic
Development and Social Change, Patna, etc. v. State of Bihar
& other etc., [1988] 3 SCR 311 @ 312 it is held thus :-
“All the institutions which answered the
description given in section 2(a) of the Act were
to be nationalised. It was not correct to say that
the Institute had been singled out for
nationalisation.”
@ p. 321 it is held thus :-
“The nationalisation has been resolved to be made
in phases. It has been already that under section
3(1) of the Act, the Institution mentioned in the
Schedule will be transferred to the State
Government and will be actually vested in it free
from all circumstances. The Schedule mentions
only one Institute and in view of section 3(1) it
has vested in the State
973
Government. It is said that the first phase relates to
the taking over of the Institute and that has been done.
Section 3(2) also provides for amendment of the Schedule
by including any institution. In other words, the other
institutions which answer the description of private
educational institutions as defined in clause (a) of
section 2 of the Act will also be nationalised not at a
time, but in phases, the first phase having started with
the take over of the institute. This, in short, is the
scheme of the Act.
p. 232, it is held as under :-
“The contention made on behalf of the petitioner-Society
is wholly misconcieved. The Ordinances were not
promulgated and the Act was not passed for the purpose
of nationalisation of the Institute only. It is
apparent from the provisions of the Ordinances and the
Act that the private educational institutions as defined
there in are to be taken over for the purpose as
mentioned in the Preambles to the Ordinances and the Act
in a phased manner. All the institutions which answer
the description as given in Section 2(a) of the Act are
to be nationalised. It is, therefore, not correct to
say that the Institute has been singled out for the
purpose of nationalisation.
There can be no doubt that when nationalisation has to
be done in a phased manner, all the institutions cannot
be taken over at a time. The nationalisation in a
phased manner contemplates that by and by the object of
nationalisation will be taken over. Therefore, in
implementing the nationalisation of private institutions
in a phased manner, the Legislature has started with the
Institute. Therefore, the question of singling out the
Institute or treating it as a class by itself does no
arise, for as the provisions of the Act the Ordinances
go, all the private educational institutions, as defined
in section 2(a) of the Act will be nationalised in a
phased manner”.
@ p.325-26 it is held thus :-
“It is submitted that this fact demonstrates that the
professed object of nationalisation in phases is a mere
pretence and a
974
colourable device to single out the Institute for
discriminatory treatment. The taking over of the
Institute is an act of legislation and not an act
of the Government. The question to be considered
is whether at the time when the Ordinances were
promulgated or the Act was passed, the same
suffered the vice of discrimination or not. There
can be no doubt that on the date the Ordinances
were promulgated and the Act was passed, the same
could not be challenged on the ground of non-
implementation of the legislative intent in
nationalising similar institutes by amending the
Schedule. If a legislative enactment cannot be
challenged as discriminatory on the date it is
passed, it is difficult to challenge the same as
violative of Article 14 of the Constitution on the
ground of inaction of the executive in implementing
the purpose of the Act, regard being had to the
fact that it was the Legislative which had made the
selection for the first phase of nationalisation.
If no such selection had been made by the
Legislature and the entire thing had been left to
the discretion of the Government, it might have
been possible to contend of discriminatory
treatment. The respondent’s have, however, given
an explanation for not including the other similar
institutions in the programme of nationalisation,
to be precise, in the Schedule to the Act”.
While we are on this case, we have got to deal with the
arguments of Mr. Kapil Sibal, who bases his submission on
the extract from the pages 325-326 that the relevant date to
determine arbitrariness is the date of enactment. On the
date if the first respondent alone is affected it would be
arbitrary and violative of Article 14, so proceeds argument.
We are unable to agree with this argument. No doubt,
in this case Lalit Narayan Mishra Institute alone was taken
over by the Legislature. That was the only institution
affected thereby. Inspite of this the Court held this
enactment is not violative of Article 14, since the
institution of like nature would fall within the ambit of
the statute, notwithstanding the fact that only one
institute has been specified in the schedule. The attempt
of the learned counsel for the first respondent that all
these cases legislative intervention became necessary
because there were some other reasons namely, mismanagement
requiring taking over the banks and temples etc.
975
and therefore, the single person’s legislation was upheld is
not tenable. We also hold that in order to justify a
legislation of this character, no extraordinary situation
need be disclosed. The contention that this is not in
furtherance of the legislative object, cannot also be
accepted because it has already been seen that the
legislative object is to introduce as age of superannuation.
Beyond this nothing more need be established by the State.
The possibility of this legislation applying to one or more
persons exists in principle. The fact that only one
individual came to be affected cannot render the legislation
arbitrary as violative of Article 14. This is because
Section 3 is general in terms and the incidence of its
applying to one individual does not render the legislation
invalid.
The theory advanced by the learned counsel for the
first respondent that there must be mismanagement or some
extraordinary situation to warrant a legislation of its
character also does not seem to be correct as seen from The
Atlas Cycle Industries Ltd., Sonepat v. Their Workmen,
[1963] 3 S.C.R. Suppl. 89 @ 103-4, it is held thus :-
“Lastly, it is contended that the transfer of the
proceedings pending before the old Tribunal to the
new Tribunal under the Notification dated October
31, 1957, was invalid and inoperative. Two grounds
were urged in support of this contention. One is
that Shri A.N. Gujral attained the age of sixty-
five on June 4, 1957, and his term of office would
have then expired under s.7C. Then the Punjab
Legislature enacted Act 8 of 1957 raising the age
of retirement under s.7C(b) from sixty-five to
sixty-seven. That was with a view to continue Shri
A.N. Gujral in office. And this legislation came
into force only on June 3, 1957. This Act, it is
said offends Art. 14 as its object was to benefit a
particular individual, Shri A. N. Gujral, and
reference was made to a decision of this Court in
Ameeroonissa v. Mehboob as supporting this
contention. There is no force in this contention.
There the legislation related to the estate of one
Nawab Waliudduoula, and it provided that the claims
of Mehboob Begum and Kadiran Be gum, who claimed as
heirs stood dismissed thereby and could not be
called in question in any court of law. And this
Court held that it was repugnant to Art. 14, as it
singled out individuals and denied them the right
976
which other citizens have of resort to a court of
law. But the impugned Act. 8 of 1957 is of general
application, the age being raised to sixty-seven
with reference to all persons holding the office
under that section. The occasion which inspired
the enactment of the statute might be the impending
retirement of Shri A.N. Gujral. But that is not a
ground for holding that it is discriminatory and
contravenes Art. 14, when it is, on its terms, of
general application”.
The attempt to distinguish this case that it was one
wherein a benefit of extension was conferred and that a
number of industrial adjudications were pending cannot be
accepted.
However, strong reliance is placed on D.S. Reddy v.
Chancellor, Osmania University & Ors, [1967] 2 S.C.R. 214 @
223. The facts of this case require to be noted they can be
culled from the headnote as under :-
“As a result of the Osmania University (Amendment)
Act II of 1966, s.12(1) of the Osmania University
Act, 1959, was amended to provide for the
appointment of the Vice Chancellor by the
Chancellor alone; in s.12(2) a provision was
introduced whereby he could only be removed from
office by an order of the Chancellor passed on the
ground of misbehaviour or incapacity after enquiry
by a person who was or had been a Judge of a High
Court or the Supreme Court and after the Vice
Chancellor had been given an opportunity of making
his representation against such removal Section
13(1) of the 1959 Act was also amended so as to
reduce the term of office of the Vice Chancellor
from 5 to 3 years.
The 1959 Act was again amended later in 1966 by the
Osmania University (Second Amendment) Act XI of
1966. Section 5 of this amending Act introduced a
new s. 13A into the 1959 Act whereby it was
provided that the person then holding the office of
Vice chancellor was appointed; and that such new
appointment must be made within 90 days of the
commencement of the Act whereupon the old Vice
Chancellor would cease to hold Office.
977
The appellant filed a writ petition claiming, inter
alia, that s.5 of the second amending Act
introducing the new s.13A was discriminatory as
against him and therefore violative of Art. 14. The
High Court dismissed the petition.
In the appeal to the Supreme Court, it was
contended on behalf of the respondents that as the
term of office had been reduced to 3 years by the
first amending Act, the legislature, in order to
give effect to this provision and to enable fresh
appointments to be made under the Act, had enacted
s.13A which had, necessarily, to apply to a person
like the appellant who was in office at the time
when the provisions came into force. Such
provisions could not, in the nature of things,
apply to Vice chancellors who were to be appointed
in future; the appellant was appointed from a panel
submitted by a committee constituted under the
unamended s.12(2) whereas future Vice Chancellors
were to be appointed by the Chancellor alone;
furthermore, the appellant had been the Vice
Chancellor for 7 years. Having regard to these
circumstances the legislature had chosen to treat
the appellant as a class by himself and had
differentiated him from persons to be appointed
Vice Chancellors in the future; that such
classification was reasonable and had a rational
relation to the object sought to be achieved by
the second amending Act i.e. bringing about
uniformity in the tenure of 3 years of office for
all Vice Chancellors; that the appellant was not
entitled to the benefits of s.12(2) and the
legislature was competent to enact s.13A so as to
give effect to the amended provisions as early as
possible”.
@ p. 229-230, it is held :-
“We have already stated that the appellant was
appointed under the Act, for a further term of 5
years, as Vice Chancellor, on April 30, 1964, and
he was continuing in office, as such, at the time
when the two Amending Acts were passed; and,
normally, he would be entitled to continue in that
post for the full term, which will expire only at
the end of April, 1969. The First Amendment Act
provided, in s.12 of the Act, that the Vice
Chancellor is to be appointed by the Chancellor;
but s.12(2)
978
specifically provided that the Vice Chancellor
shall not be removed from his office except by an
order of the Chancellor passed on the ground of
misbehaviour or incapacity and, after due inquiry
by such person who is, or has been, a Judge of a
High Court or the Supreme Court, as may be
appointed by the Chancellor. It was also provided
that the Vice Chancellor was to have an opportunity
of making his representation against such removal.
Prima facia, the provisions contained in sub.s.(2)
of s.12 must also apply to the appellant, who did
continue in office even after the passing of the
First Amendment Act. No doubt the term of office of
the Vice Chancellor was fixed at 3 years under
s.13(1) of the Act. But no provisions were made in
the First Amendment Act regarding the termination
of the tenure of office of the Vice chancellor who
was then holding that post.
There can be no controversy that s.13A introduced
bys.5 of the Second Amendment Act, deals only with
the appellant. In fact, the stand taken on behalf
of the respondents in the counter affidavit filed
before the High Court, was to the effect that the
Legislature had chosen to treat the Vice Chancellor
holding office at the time of commencement of the
Second Amendment Act, as a class by himself and
with a view to enable the Chancellor to make fresh
appointments, s.13A of the Act was enacted.
Therefore, it is clear that s.13A applies only to
the appellant. Though no doubt, it has been
stated, on behalf of the respondent, that similar
provisions were incorporated, at about the same
time, in two other Acts, relating to two other
Universities viz., the Andhra University and the
Sri Venkateswara University, and though this
circumstance has also been taken into account by
the learned Judges of the High Court, in our
opinion, those provisions have no bearing in
considering the attack levelled by the appellant on
s.13A of the Act.
This is a clear case where the statute itself
directs its provisions by enacting s.13A, against
one individual, viz. the appellant; and before it
can be sustained as valid, this Court must be
satisfied
979
that there is a reasonable basis for grouping the
appellant as a class by himself and that such
reasonable basis must appear either in the statute
itself or must be deducible from other surrounding
circumstances. According to learned counsel for
the appellant, all Vice Chancellors of the Osmania
University come under one group and can be
classified only as one unit and there is absolutely
no justification for grouping the appellant under
one class and the Vice Chancellors to be appointed
in future under a separate class. In any event,.
it is also urged that the said classification has
no relation or nexus to the object of the
enactment.
@ p. 230-231, it is observed as under :-
“We are inclined to accept the contention of Mr.
Setalvad, that there is no justification for the
impugned legislation resulting in a classification
of the Vice Chancellors into two categories, viz.
the appellant as the then existing Vice Chancellor
and the future Vice Chancellors to be appointed
under the Act.
In our view, the Vice Chancellor, who is appointed
under the Act, or the Vice Chancellor who was
holding that post on the date of the commencement
of the Second Amendment Act, from one single group
or class. Even assuming that the classification of
these two types of persons as coming under two
different groups can be made nevertheless, it is
essential that such a classification must be
founded on an intelligible differentia which
distinguishes the appellant from the Vice
Chancellor appointment under the Act. We are not
able to find any such intelligible differentia on
the basis of which the classification can be
justified.
“While a Vice Chancellor appointed under s.12 of
the Act can be removed from office only by adopting
the procedure under s.12(2), the services of the
appellant, who was also a Vice Chancellor and
similarly situated, is sought to be terminated by
enacting s.13A of the Act. We do not see any
policy underlying the Act justifying this
differential treatment accorded to the appellant.
The term of office of the Vice Chancellors has been
980
no doubt reduced under the First Amendment Act and
fixed for 3 years for all the Vice Chancellors.
But, so far as the appellant is concerned, by
virtue of s.13A of the Act, he can continue to hold
that office only until a new Vice Chancellor is
appointed by the Chancellor, and that appointment
is to be made within 90 days. While all other Vice
Chancellors, appointed under the Act, can continue
to be in office for a period of three years, the
appellant is literally forced out of his office on
the expiry of 90 days from the date of
commencement of the Second Amendment Act. There is
also no provision in the statute providing for the
termination of the services of the Vice
chancellors, who are appointed under the Act, in
the manner provided under s.13A of the Act. By
s.13A, the appellant is even denied the benefits
which may be available under the provision to sub-
s.(1) of s.13 of the Act, which benefit is
available to all other Vice chancellors.”
It will be clear from the above extract on its own
terms the legislation applied only to one individual and
nobody else, even in principle, to a future Vice Chancellor.
There was no basis for making a distinction between the then
existing Vice Chancellor and the future Vice Chancellors,
who are to be treated differently. Further, the existing
Vice Chancellor was subject to a disability for which there
was no rational basis.
As a matter of fact, this ruling had come up for
discussion in Lalit Narayan Mishra Institute of Economic
Development and Social Change, Patna, etc. v. State of Bihar
and Others etc., [1988] 3 S.C.R. 311 @ 322 it is ruled :-
“The other decision that has been relied upon by
the petitioner is B.S. Reddy v. Chancellor, Osmania
University, [1967] 2 SCR 214. What happened in
that case was that section 5 of the Osmania
University (Second Amendment) Act, 1966 introduces
into the Osmania University Act, 1959 a new section
13A whereby it was provided that the person then
holding the office of the Vice Chancellor of the
University could only hold that office until a new
Vice Chancellor was appointed, and that such new
amendment must be made within 90 days of the
commen-
981
cement of the said amendment Act whereupon the old
Vice Chancellor would cease to hold the office. It
was held by this Court that there was no
justification for the impugned legislation, that
is, the provision of section 13A, resulting in a
classification of the Vice Chancellors into two
categories, namely, the appellant as the existing
Vice Chancellor and the future Vice Chancellors to
be appointed under the Osmania University Act. It
was held that both these categories constituted one
single group of class, and that even assuming that
the classification of these two types of persons as
coming under two different groups could be made,
nevertheless, it was essential that such a
classification must be founded on an intelligible
differentia which would distinguish the appellant
from the Vice Chancellors appointed under the
Osmania University Act. The Court held that there
was no intelligible differentia on the basis of
which the classification could be justified.”
The situation in the case in hand is entirely
different.
(Ameerunnissa Begum and Others v. Mehboob Begum and
Others, [1953] S.C.R. (404) Ameerunnissa’s case is clearly
distinguishable. The reason is the impugned enactment
excluded an particular set of persons viz., heirs of Nawab.
They were even denied access to Court to ventilate their
grievances. Secondly, it was a named legislation. Though
for apparent purposes it deals with specifically the wife’s
claims of succession. Lastly, we will deal with Ram Prasad
Narayan Sahi and Another v. The State of Bihar and Others,
[1953] S.C.R. 1129 @ 1132-33, it is held as under :-
“The decision of the majority of this Court in
Chiranjit Lal v. The Union of India is relied on in
support of these contentions. In that case,
however, the majority felt justified in upholding
the legislation, though it adversely affected the
rights and interest of the shareholders of a
particular joint stock company, because the
mismanagement of the company’s affairs
prejudicially affected the production of an
essential commodity and caused serious unemployment
amongst a section of the community. Mr. Justice
Das and I took the view that legislation directed
against a particular named person or corporation
was
982
obviously discriminatory and could not
constitutionally be justified even if such
legislation resulted in some benefit to the public.
In a system of Government by political parties, I
was apprehensive of the danger inherent in special
enactments which deprive particular named person of
their liberty or property because the Legislature
thinks them guilty of misconduct, and said in may
dissenting opinion :
“Legislation based upon mismanagement or other
misconduct as the differentia and made applicable
to a specified individual or corporate body is not
far removed from the notorious parliamentary
procedure formerly employed in Britain of punishing
individual delinquents by passing bills of
attainder, and should not, I think receive judicial
encouragements.
It has to be carefully noted that this Act was intended
to deny the appellant a right to decision by a court of law
and that too in a private dispute between the parties.
Hence, this ruling again has no application to the facts of
the case. As we observed in the beginning of the judgment,
if the State is well entitled to introduce an age of
superannuation (we have referred to [1985] 2 SCR 579
Nagaraja’s case), how could that be called discrimination or
unreasonable ? The resultant conclusion is the amending Act,
particularly, Section 3 is not, in any way, arbitrary and,
therefore, not violative of Article 14.
Whether the failure to implead Chauhan would be fatal
to the Writ Petition?
The contention of Mr. Shanti Bhushan that the failure
to implead Chauhan will be fatal to the writ petition does
not seem to be correct. He relies on A.I.R. 1979 Kerala
179. That case related to admission to medical college
whereby invalidating the selection vitally affected those
who had been selected already. Equally, the case Padmraj
Samrendra and others v. State of Bihar and Anr., A.I.R. 1979
Patna 266 has no application. This was a case where the
plea was founded in Article 14 and arbitrary selection. The
selectees were vitally affected. The plea that the decision
of the court in the absence of Chouhan would be violative of
principle of natural justice as any adverse decision would
affect him is not correct.
983
On the contrary, we think we should approach the matter
from this point of view, viz., to render an effective
decision whether the presence of Chauhan is necessary? We
will in this connection refer to A. Janardhana v. Union of
India and Others, [1983] 3 S.C.C. 601, @ para 36 it is held
as under:-
“…Approaching the matter from this angle, it may
be noticed that relief is sought only against the
Union of India and the concerned Ministry and not
against any individual nor any seniority is claimed
by any one individual and against another
particular individual and therefore, even if
technically the direct recruits were not before the
court, the petition is not likely to fail no that
ground”.
What was the first respondent seeking in the writ
petition? He was questioning the validity of the Ordinance
and the Act whereby he had been deprived of his further
continuance. What is the relief could be have asked for
against Chauhan? None. The first point is Chauhan came to
be appointed consequent to the suspension of the first
respondent which suspension had come to be stayed by the
High Court on 12.6.90. Then, again, as pointed out by the
High Court it was “till further orders”. Therefore, we hold
the failure to implead Chauhan does not affect the
maintainability of the writ petition.
One postscriptum needs to be added. It was argued on
the basis of Pritam Singh v. The State, [1950] S.C.R. 453
that unless the court comes to the conclusion that the High
Court is palpably wrong, it should not interfere. No doubt,
the same principle is stated in Union of India v. M.P.
Singh, [1990] (Suppl.) S.C.C. 701 that if substantial
justice is done the interference under Article 136 is not
warranted. We do not think this principle will have any
application.
There is no denying the fact that the first respondent
had
“battled with great grief and fears and borne the
conflict of dream shattering years.”
But the State says that this is a case of “much of a
muchness” in the words of Sir John Vanbrugh (in “The
Provoked Husband”).
984
How do we balance these claims except to examine the
matter in the light of the law and quote Horace: ” tempus
abire tibi est” (“time you were off”).
In the light of the above discussion, it follows that
the appellant is entitled to succeed. We hold that on
13.7.90 the first respondent’s right to hold office as
Chairman/Member of Himachal Pradesh Electricity Board came
to end. The impugned judgment of the High Court in C.W.P.
No. 396 of 1990 dated 12th July, 1991 is hereby set aside.
The appeal will stand allowed.
However, as repeatedly stated by Mr. Shanti Bhushan
during the course of the arguments that the State is willing
to provide compensation for the remaining period of the
tenure, we direct the State to pay the first respondent the
salary, allowances and perks for the period commencing from
13.7.90 upto 25.7.92, had he continued in office but for the
impugned legislation. If any payment has been made by
interim orders of the court that will go towards the
deduction of this liability.
In view of the peculiar facts and circumstances of the
case, there will be no order as to costs.
V.P.R. Appeal allowed.
985