{"id":249214,"date":"1992-02-20T00:00:00","date_gmt":"1992-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-and-anr-vs-kailash-chand-mahajan-and-ors-on-20-february-1992"},"modified":"2018-06-25T05:48:03","modified_gmt":"2018-06-25T00:18:03","slug":"state-of-himachal-pradesh-and-anr-vs-kailash-chand-mahajan-and-ors-on-20-february-1992","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-and-anr-vs-kailash-chand-mahajan-and-ors-on-20-february-1992","title":{"rendered":"State Of Himachal Pradesh And Anr vs Kailash Chand Mahajan And Ors on 20 February, 1992"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Himachal Pradesh And Anr vs Kailash Chand Mahajan And Ors on 20 February, 1992<\/div>\n
Equivalent citations: 1992 AIR 1277, 1992 SCR (1) 917<\/div>\n
Author: S Mohan<\/div>\n
Bench: Mohan, S. (J)<\/div>\n
           PETITIONER:\nSTATE OF HIMACHAL PRADESH AND ANR.\n\n\tVs.\n\nRESPONDENT:\nKAILASH CHAND MAHAJAN AND ORS.\n\nDATE OF JUDGMENT20\/02\/1992\n\nBENCH:\nMOHAN, S. (J)\nBENCH:\nMOHAN, S. (J)\nSAHAI, R.M. (J)\n\nCITATION:\n 1992 AIR 1277\t\t  1992 SCR  (1) 917\n 1992 SCC  Supl.  (2) 351 JT 1992 (2)\t144\n 1992 SCALE  (1)454\n\n\nACT:\n    Constitution  of India, 1950-Article  136-<\/a>Appeal-Whether\nSupreme\t Court to decide a case on ethics-Retirement age  of\nChairman\/Member\t  of   Electricity   Board-Policy-Need\t for\nlegislation-Whether the Court to interfere.\n    Electricity\t (Supply) Act<\/a>, 1948-Section 5(6)<\/a> (as amended\nby  the\t Himachal  Pradesh  Act<\/a>\t 10  of\t 1990)-\t \"Shall\t  be\ndisqualified from being appointed,\" \"or being\"-Meaning of.\n    Electricity (Supply) Act<\/a>, 1948-Sections 5<\/a>,8<\/a> and sections\n14<\/a> and 16<\/a> of the General Clauses Act-Period of\tappointment-\nTime  to time extension-Whether amounts\t to  re-appointment-\nWhether section 5<\/a> (6) deals only with initial appointment.\n    Electricity\t  (Supply)  Act<\/a>,   1948-Section\t  10-Whether<\/a>\npunitive  in  nature-Reappointment-Person  removed   whether\neligible.\n    Electricity (Supply) Act<\/a>, 1948-Section 5<\/a> (6)-(as amended\nby the Himachal Pradesh Act<\/a> 10 of 1990)-Effect of amendment-\nCessation  from\t holding office of  Chairman\/Member  of\t the\nBoard  on attaining the age of 65 years\t whether  automatic-\nRight to continue in office-Legitimate\texpectation-Legality\nof-Superannuation age-Introduction-Object of.\n    Interpretation  of\tStatutes-Object of  legislation\t and\nlegislative intention-Distinction of-`Object and Reasons' of\na  Bill-Importance of-The Himachal Pradesh Act<\/a>, 10 of  1990-\nSections 3<\/a>,5-Object<\/a> of.\n    Constitution of India, 1950-Article 14-<\/a>Amending Act<\/a> (the\nHimachal  Pradesh  Act<\/a> 10 of 1990) introducing\tthe  age  of\nsuperannuation affecting one person-Whether enactment  ultra\nvires.\n    Constitution  of India, 1950-Article  226-<\/a>Writ  petition\nchallenging  vires of the Himachal Pradesh Act<\/a> 10  of  1990-\nNon-impletion of a person who was appointed in the place  of\nthe writ-petitioner-Effect of.\n\n\n\nHEADNOTE:\n    Respondent\tNo.  1, on his retirement from the  post  of\nChief  Engineer\t from the State of Punjab was  appointed  as\na Member  of  Himachal Pradesh State  Electricity  Board  on\n24.7.1981 and thereafter appointed as Chairman of the  Board\nfor a period of two years. On 13.8.82 by a notification\t the\nperiod\twas  extended to five years,  w.e.f.  25.7.1981.  On\n12.5.86,  the  term  as Chairman was  extended\tfor  another\nperiod\tof  three years. There was a  further  extension  on\n12.6.89\t for  a period of 3 years. His\tappointment  was  to\ncontinue upto 25.7.92.\n    Respondent No. 3, the Chief Minister of Himachal Pradesh\nwas  alleged to have made  speeches that should he  come  to\npower  in  the\tJanuary 1990 elections\the  would  have\t the\nrespondent  No.\t 1  removed from  the  Chairmanship  of\t the\nElectricity Board.\n    On\t5.3.90,\t the  respondent  No.  3  became  the  Chief\nMinister.   A  notification  dated  6.3.90  was\t issued\t  in\nsupersession  of  the notification dated  12.6.89  that\t the\nappointment  of\t the  respondent No. 1 as  Chairman  of\t the\nElectricity  Board  was\t extended from\t25.7.89\t to  6.3.90.\nAnother notification dated 6.3.90 was issued directing\tthat\none  Mr.  Chauhan function as Chairman\tof  the\t Electricity\nBoard w.e.f. 7.3.90.\n    The\t  respondent  No.  1  preferred\t a   writ   petition\nchallenging the validity of the notification dated 6.3.90.\n    While the writ petition was pending, on 30.3.90, another\nnotification  was issued terminating the appointment of\t the\nrespondent No. 1 as Member of the Electricity Board.\n    On\t30.3.90,  the High Court while\tadmitting  the\twrit\npetition  (CWP No. 123 of 1990) ordered that no\t appointment\nto  the\t post of Chairman of the Electricity Board  be\tmade\ntill further orders of the Court. When the matter was  heard\non  22.5.90, the Advocate General requested the\t Court\tthat\nthe  judgment not to be pronounced since he desired to\tseek\ninstructions   from   the  Government  to   reconsider\t its\nnotification dated 6.3.90. On 11.6.90, the Advocate  General\nsubmitted  to the Court that the notifications dated  6.3.90\nand  30.3.90 would be withdrawn and an undertaking  to\tthat\neffect was given. Accordingly the writ petition was disposed\nof.\n    By\tnotification dated 11.6.90, the Government  withdrew\nits notification dated 6.3.90 and 30.3.90.\n\t\t\t\t\t\t       919\n    On\t11.6.90,  a  show cause notice\twas  issued  to\t the\nrespondent No. 1 for having abused his petition as  Chairman\nof  the\t Electricity  Board and\t also  ex-offcio  Secretary,\nM.P.P. Power, asking him to submit his explanation within 21\ndays  as to why action should not be taken under Section  10<\/a>\nof  the Electricity (Supply) Act, 1949. He was\talso  placed\nunder suspension with immediate effect. Consequent upon\t the\nsuspension  of the respondent No.1, the\t notification  dated\n16th  July,  1990  issued placing one  Mr.  R.S.S.  Chauhan,\nMember (Operations) as the Chairman of the Electricity Board\nwith immediate effect.\n    On 22.6.90, the Chief Secretary of the State  Government\nrequested  the Secretary, Government of India,\tMinistry  of\nHome  Affairs to grant permission to promulgate\t Electricity\n(Supply H.P. Amendment) Ordinance, 1990, as no age limit was\nprescribed  for\t holding office of the Member of  the  State\nElectricity  Board, it was necessary to prescribe  an  upper\nage limit and it was proposed through the Ordinance that  no\nperson\tabove  the age of 65 years could  be  appointed\t and\ncontinued  as Chairman or Member of H.P.  State\t Electricity\nBoard.\n    On 9.7.90, the Government of India pointed to the  State\nGovernment  that  it  was desirable for it  to\texamine\t the\nmatter with reference to the relevant provisions of the\t Act\nand the Constitution of India.\n    On 13.7.90, the Governor issued the H.P. Ordinance\tRule\nof 2\/90, amending Section 5<\/a> (6) of the Electricity  (Supply)\nAct<\/a>.\n    A  notification  was  issued on  16.7.90,  that  as\t the\nrespondent  No.1,  having already attained the age  of\tmore\nthan  sixty-five  years,  was  ceased  to  be\tconsequently\nChairman of the Board.\n    Aggrieved  by  the\tOrdinance  dated  13.7.90  and\t the\nnotification dated 16.7.90, the respondent No.1 filed a writ\npetition (CWP No. 396 of 1990) to quash the same.\n    The\t respondent No. 1 urged before the High\t Court\tthat\nthere  was a deliberate attempt on the part of the State  to\nget rid of him through the Ordinance; that the Ordinance was\nviolative of Articles 14 and 16 of the Constitution that  as\nhe  was\t the only person affected by  the  Ordinance  having\ncrossed\t the  age  of 65, he was singled  out  for  a  total\ndiscriminatory treatment; that it was a colourable  exercise\nof power; that while obtaining\n\t\t\t\t\t\t       920\nthe  consent  to promulgate the Ordinance, the fact  of\t the\npending writ petition, concerning the respondent No. 1,\t was\nnot  made  known and there was a deliberate  concealment  of\nfacts;\tand that in any event, the Chief Minister  (who\t was\nthe fourth respondent in the writ petition) was activated by\nmalafides  and\the was determined to remove  the  respondent\nNo. 1, as he held out in the election meeting.\n    The\t  respondent   No.   4\t(in   the   writ   petition)\n(Chief\tMinister)  denied the allegations of  malafides\t and\nurged that the Ordinance was issued since a policy  decision\nwas  taken  to introduce age of\t superannuation\t fixing\t the\nlimit at 65.\n    During the pendency of the writ petition, the  Ordinance\nwas  replaced by the Electricity (Supply) (Himachal  Pradesh\nAmendment)  Act, 1990 (H.P. Act<\/a> 10 of 1990). Therefore,\t the\nwrit  petition was amended to challenge the validity of\t the\namending Act.\n    The\t Division  Bench  quashing  the\t notification  dated\n17.7.1990  held that the evidence furnished by the  petition\n(respondent  No. 1) in the form of newspaper  reports  would\nnot  be\t enough\t to hold that the  Chief  Minister  had\t any\npersonal  bias; that the legislature as a body could not  be\naccused of having passed a law for an extraneous purpose and\ntherefore,   no\t malafides  could  be  attributed   to\t the\nlegislature; that by the Ordinance an age of  superannuation\nwas  brought in, and as there was no such age prescribed  by\nthe  Central  Act<\/a>,  there was no repugnancy;  that  by\tmere\ncurtailment  of\t the term as Chairman of the  Board  without\nany mention about his inability or professional\t competence,\nso as to affect his reputation in any manner, no injury\t was\ntaken place so as to complain of violation of Article 21<\/a>  of\nthe  Constitution; that prescription of maximum age  by\t the\namending Act at 65 years could not be said to be  arbitrary;\nthat  as the petitioner was appointed after he attained\t the\nage  of 65 years, he would not be affected by Section  3(1)<\/a>;\nand  that Mr. R.S.S. Chauhan was not a necessary  party,  as\nhis appointment was only \"until further orders.\"\n    Against the decision of the High Court by special  leave\nthis  appeal was filed by the State, contending that  though\nthe inapplicability of the Ordinance or Act was not  raised,\nthe High Court allowed the argument; that the  Ordinance\/Act\nwas applicable to the respondent No. 1; that the reading  of\nSections 2<\/a> and 3<\/a> of the amending Act, both individually and\n\t\t\t\t\t\t       921\nconjointly  lead  to the  only\tconclusion  that   the\t Act\ndisqualified  every  person from holding office who  on\t the\ndate  of  enactment  namely, 13th July, 1990  was  above  65\nyears;\tthat  the Act on its own terms made  no\t distinction\nwhatsoever  between those persons who already  attained\t the\nage  of 65 years on the date of enactment or those who\twere\nless  than  65 years; that the High Court was not  right  in\nintroducing an artificial distinction; that Section 5(6)<\/a>  of\nthe Act as amended  would disqualify all persons who were at\nthe  time  of  the amendment 65 years  or  above;  that\t the\nlanguage was very wide in its comprehension; that there\t was\nno necessity to remove the respondent No. 1 by resorting  to\nSection 10<\/a> because Section 5<\/a> (6) was self-executory; that by\noperation of law, the respondent No. 1 ceased to hold office\non  the date of coming into force of the  amending  Act;that\npublic\tpolicy\trequired to prescribe the age  of  65  years\nretirement of the members of Electricity Board;that the High\nCourt went wrong as though the appointment of the respondent\nNo.  1\twas not covered by Section 3(1)<\/a> since the  right  to\ncontinue as Chairman was pursuant to an appointment after he\nhad  attained  the age of 65 years; that  factually  it\t was\nincorrect because the appointment of the first respondent as\nChairman was on 13.8.82 and the same appointment came to  be\nextended from time to time and each of such extensions could\nnot   constitute  a  new  appointment;\tthat  it   was\t one\nappointment  which  was being continued from time  to  time;\nthat  the reasoning of the High Court was wrong\t because  it\nled to unconstitutionality, as the persons who attained\t the\nage  of 65 years after the amending Act would be obliged  to\nretire\twhile  the older persons like the respondent  No.  1\nwould  remain in office; that such situation  would  clearly\namount to discrimination; that either by way of Section 5(6)<\/a>\nof the Electricity (Supply) Act, as amended or under Section\n3(1)<\/a>  of the amending Act, the respondent No. 1 would  cease\nto hold office; that Section 3<\/a> was introduced only by way of\nabundant  caution;  that  Section  3(1)<\/a>\t contained  a\t`non\nobstante'  clause  and it rendered any\tjudgment,  contract\/\norder or contrary to the sub-section would be void; that the\nlegislature  introduced the non-obstante clause to  put\t the\nmatter beyond doubt; that the legislation was general in its\nterms and its application and the fact that at the  relevant\ntime  of  the  amending\t Act  or  even\tthe  Ordinance,\t the\nrespondent  No. 1 alone was no ground to hold that it was  a\nsingle\tperson's  legislation; that no\tmalafides  could  be\nattributed   to\t the  Legislature,  an\targument  that\t the\namendment has been passed only with a view to punish\n\t\t\t\t\t\t       922\nthe first respondent was not available to the respondent No.\n1; that for the failure to implead Chauhan the writ petition\nwas  liable  to\t be dismissed because if by  reason  of\t the\ndecision of the court, Chauhan was ultimately affected,\t and\nif  that decision was rendered without hearing\tChauhan,  it\nwould  amount  to  a clear violation  of  the  principle  of\nnatural justice; that there was no need to dislodge  Chauhan\nfrom  Office as he was continuing so long; that this  Court,\nby fixing the compensation, instead of relegating the matter\nto  the State, may allow him to continue in the\t Office\t for\nthe remaining period of tenure of the respondent No. 1.\n    The\t respondent  No. 1 submitted that the  State,  while\nwriting\t  for  sanction\t for  issue  of\t  Ordinance   though\nspecifically  mentioned about the respondent No. 1 by  name,\nit  concealed  from Govt. of India the facts of\t the  matter\nbeing sub judice; that the disqualification prescribed under\nSection\t 5<\/a>  (6)\t of the amended Act was\t to  prevent  future\nappointments after attaining the age of 65 years; that there\nwas no automatic cessation of office on attaining the age of\n65  years; that by merely amending the law, it could not  be\nurged that the respondent No. 1 having attained the  age  of\n65  ceased  to be a Member or Chairman\tof  the\t Electricity\nBoard; that Section 5<\/a> (6) would not help the appellant; that\nthe  respondent No.1 having been appointed under  Section  8<\/a>\nconstituted a class and if the appointment of the respondent\nNo. 1 was sought to be brought out under Section 5<\/a> it  would\nbring  a  discrimination  treating unequals  as\t equals\t and\ntherefore,  the\t law  would  have  to  be  struck  down\t  as\ndiscriminatory; that the attaining of 65 years was not to be\nconsidered  as\tdisqualification  as  otherwise\t Section  10<\/a>\nwould  provide for such a situation; that Section 5(6)<\/a>\tonly\ndeals with initial appointment and would not cover a case of\nreappointment after attaining the age of 65; that though the\nnotifications  dated  12.5.86  and 12.6.89,  used  the\tword\n\"extension\"  it was nothing but reappointment; that  by\t the\nenactment   only  the  first  respondent  alone\t  could\t  be\naffected   and,\t  therefore,  it  was  a   single   person's\nlegislation   being   violative\t of  Article   14<\/a>   of\t the\nConstitution;  and  that where the respondent  No.  1  would\nchoose\tto question the vires of the Ordinance or  the\tAct,\nthere  was  no\tneed to implead\t  Chauhan at  all,  and\t the\nrespondent  No.\t 1  could  not have  asked  for\t any  relief\nagainst\t Chauhan  and  even  otherwise,\t for  an   effective\nadjudication  of the points in issue there was no  need\t for\nthe presence of Chauhan.\n    Allowing the appeal filed by the State, this Court,\n\t\t\t\t\t\t       923\n    HELD: 1.01. This Court cannot decide the case on ethics.\nThe  Court  is to judge the law and the correctness  of\t the\nlegal provisions as it sees. [947G]\n    1.02. It is not for this court to find out whether there\nwas any need for such a legislation. Of course, for lack  of\nlegislative  competence\t or for violation of  the  right  to\nequality   under  Article  14<\/a>  etc.  the  validity  of\t the\nlegislation may be scrutinised. But, certainly, that is\t far\nfrom saying the court could examine the legislation from the\npoint  of  view\t that it came to  be  passed  with  malafide\nintention. By long established practice, which has  received\napprobation through authorities of this Court, it has always\nrefrained from attributing malafides to the legislature.  In\nfact, such a thing is unknown  to law. [950H-951B]\n    1.03. In this case the State wants to introduce the\t age\nof  superannuation prescribing an upper age limit of 65\t for\nthe  Member  and  chairman of the Electricity Board,  as  no\nsuch limit was found in the Electricity (Supply) Act<\/a>,  1948.\nBefore\tthe  introduction of the  amendment,  the  appellant\nwrote\ton 22.6.90 to the Government of India,\tMinistry  of\nHome  Affairs  for  procuring prior  instructions  from\t the\nPresident  of India, as envisaged in clause (1)\t of  Article\n213<\/a> of the Constitution. [947H-948B]\n    1.04. The subject matter of the proposed Ordinance falls\nunder  item  38 of List III of the Seventh Schedule  of\t the\nConstitution of India. Where, therefore, it was proposed  to\namend Section 5<\/a> of the Electricity Supply Act (Central Act),\nin its application to the State of Himachal Pradesh; it\t had\nto be reserved for the consideration of the President  under\nArticle\t 254 (2)<\/a> of the Constitution. This was because if  a\nBill  containing similar provision after having been  passed\nby the State Legislature required to be so reserved for\t the\nconsideration of the President of India. [948B-D]\n    1.05.  Therefore, what does the State desire to  do?  It\nwants\tto  embark  on\ta  policy  of  retirement   of\t the\nChairman\/Members  of the Electricity Board  after  attaining\nthe age of 65 years. This Court is least concerned with\t the\nwisdom\tof the policy. Certainly, no one could quarrel\twith\nthe introduction of that measure as of policy. [949D-E]\n    1.06.  Where  the State has taken a policy\tdecision  to\nprescribe an outer age limit for the Members or the Chairman\nof the Electricity Board it is perfectly legal. [963D]\n\t\t\t\t\t\t       924\n\t K.Nagaraj & Others, etc. v. State of Andhra Pradesh\n\t &  Anr.  etc.etc., AIR 1985 SC 551,  paras  7,\t 36,\n\t referred to.\n\t Pritam Singh v. The State<\/a>, [1950] SCR 453; Union of\n\t India\t v.  M.P.  Singh<\/a>,  [1990]  Supp\t  SCC\t701,\n\t distinguished.\n    2.00  There\t is a disqualification\tfor  appointment  in\nfuture\twhen  it  says \"shall  be  disqualified\t from  being\nappointed\".  \"Or being\" means if such a disqualification  is\nincurred   after  the  appointment  during  the\t tenure\t  of\nmembership of the post. [952H-953A]\n    3.01. Section 8<\/a> of the Electricity (Supply) Act talks of\nterm  of  office  and conditions  for  reappointment.  Those\nconditions may be as prescribed. Nowhere in this Section  an\nadditional  power for appointment is conferred. At  best  it\ncould  be said that it merely lays down the eligibility\t for\nreappointment.\tThat eligibility must be as  per  conditions\nprescribed  under  the rules. When it says \"shall  hold\t the\noffice\tfor such period\" it means the period  as  prescribed\nunder  the  rules.  Beyond  this, the  Court  is  unable  to\npersuade itself to come to the conclusion that there is\t any\nseperate  power for reappointment. It is not even  necessary\nto provide for such a seperate power. Sections 14<\/a> and 16<\/a>  of\nCentral\t General  Clauses  Act provide\tfor  such  a  power.\nSection\t  16<\/a>   deals   with   the   power   of\t appointment\ncarrying  with it the power of dismissal, while\t Section  14<\/a>\nstates\tany  power conferred unless  a\tdifferent  intention\nappears\t could\tbe exercised from time to time\tas  occasion\nrequires.  Where, therefore, Section 5<\/a> provides for a  power\nto  appoint, certainly, that power could be  exercised\tfrom\ntime to time as occasion requires. Thus one need not  search\nfor a seperate provision in this regard. [953C-G]\n    3.02.  Section 5(6)<\/a> as amended having regard to the\t use\nof  language \"or being\" would any way exclude such of  those\nmembers or even the Chairman who have attained the age of 65\nyears of age at the time of appointment.[959E]\n    3.03.  It is rather unfortunate that the High Court\t has\nmissed\tthe true import of the words \"or being\". This  Court\ndoes  not  approve the findings of the High  Court  when  it\nstates,\t \"the provision lays down the age of  superannuation\nfor a member prospectively which disqualifies a person\tfrom\nbeing  appointed or being a member after he attains the\t age\nof  65\tyears,\" by itself it does not affect those  who\t had\nbeen given appointment\n\t\t\t\t\t\t       925\nafter  having  the  age of 65  years.  The  Legislature\t was\nconscious  of it, but thought of enacting a  provision\tlike\nSection 3<\/a> on that account. [959C-D]\n    3.04.  The contention that Section 5(6)<\/a> only deals\twith\ninitial\t  appointment  and  would  not\tcover  a   case\t  of\nreappointment  after  attaining\t the age  of  65  is  wholly\nunacceptable.  There  is no question of any  seperate  power\nfor  reappointment under Section 8<\/a> and the only power  being\ntraceable  to Section 5<\/a> read with Sections 14<\/a> and 16<\/a> of\t the\nGeneral Clauses Act.  [960B-C]\n    3.05.  The\toriginal order of appointment of  the  first\nrespondent  was\t on  24.7.1981, first as  a  Member  and  as\nChairman  for  a  period  of 2 years.  The  next  comes\t the\nappointment dated 13.8.1982, when the first respondent\tcame\nto be appointed\t as  Chairman  of  Himachal   Pradesh  State\nElectricity  Board. The notification reads \"in\tcontinuation\nof  this  Department's\tnotification of\t even  number  dated\n12.5.1986,  the Governor of Himachal Pradesh is\t pleased  to\nextend\tthe  appointment\".  Therefore,\twhere  the  original\nappointment dated 12.5.86 is extended from time to time,  it\nis  futile  to contend that these  are\tfresh  appointments.\n[960D, 961D-E]\n    4.\tSection\t 10<\/a> confers an enabling power on  the  State\nGovernment  to take punitive action against a member of\t the\nBoard who falls under any one of the clauses (a) to (f). The\nfact  that it is punitive is clear because  sub-section\t (3)\ncontemplates  giving an opportunity to offer an\t explanation\nand  thereafter\t removing  him.\t Once  so  removed,  he\t  is\nineligible   for  reappointment\t either\t as a Member or\t any\nother capacity in the Board. [955D-E]\n    5.01.  The effect of amendment of Section 5<\/a> (6) is\tthat\nit introduces a new disqualification \"if he has attained the\nage  of\t 65 years\". This disqualification is  not  only\t for\nbeing\tappointed,   namely,  with   reference\t to   future\nappointment,   but  even  with\tregard\tto   a\t supervening\ndisqualification  covering cases of those who have  attained\nthe age of 65 years and being a member of the Board.  [957G-\n958A]\n    5.02. Once this disqualification of attaining the age of\n65  years is incurred, there is an automatic cessation\tfrom\nholding\t office. This is because Section 5(6)<\/a>  contains\t the\nsame  phraseology  as is found under Articles 102  and\t191.\nSection\t 5(6)<\/a> applies to initial appointment as well  as  to\nthose continuing  in appointment. [956G-H]\n\t\t\t\t\t\t       926\n5.0.3.Section  5(6)<\/a> itself would be enough to hold  that  on\nthe  coming into force of the amending Act, namely,  13.7.90\nthe first respondent ceases to hold the office by the rigour\nof law. [959E-F]\n    5.04.  The\tAct<\/a>  contains a\t `non-obstante'\t clause.  An\nappointment  of\t a  Member of the Board made  prior  to\t the\ncommencement   to   the\t  Act,\t namely,   13.7.90   (giving\nretrospective operation) when gives a right to continue as a\nMember after attaining the age of 65 years, that appointment\nis rendered void. [963G]\n    5.05.  This non-obstante clause is a sweep.\t It  applies\n(1)   notwithstanding  anything\t to  the  contrary  in\t any\nprovisions  of the Electricity (Supply) Act<\/a>; (2)  rules\t and\nregulations, bye-laws made therein; (3) any judgment, decree\nor order of the court; and (4) any contract. [963H]\n    5.06. Once it is so rendered void, the law deems that he\nhas  ceased to hold office of the Member of the Board. By  a\nreading\t of  the Section it can be seen\t that  Section\t3(1)<\/a>\nwould apply to a person who on the date of the\tcommencement\nwas already more than 65 years. [964A-B]\n    5.07.  The Section nowhere makes a\tdistinction  between\nthose on the date of the enactment are \"below\" or \"over\"  65\nyears of age. Such a distinction is totally unwarranted. The\ncrucial\t question   to be asked is whether  the\t  particular\nincumbent is continuing after the attainment of 65 years  of\nage,  if that question is answered in the affirmative  there\nis  a  cessation  of office, in view of the  terms  of\tthat\nSection.  The  contrary\t conclusion would  lead\t to  strange\nresults. Those who are appointed prior to the Act and on the\nattainment  of 65 years on 13.7.90, would vacate the  office\nwhile a person already 65 on that date and after the passing\nof the Act notwithstanding the policy of prescribing the age\nof superannuation  of 65 years would continue in the office.\nThe object of introducing an age of superannuation itself is\nto  weed  out the older elements and infuse fresh  blood  so\nthat the administration could function with vigour. [964B-D]\n\t Pasupati Nath Sukul, Election Commission of  India,\n\t State of U.P. v. Nem Chand Jain and others,  [1984]\n\t 2  SCC\t 404;  Election Commission,  India  v.\tSaka\n\t Venkata Subba Rao<\/a>, [1953] SCR 1144 at page 1157;  R.  v.\n\t Ministry  of  Agriculture Fisheries  and  Food,  ex\n\t parte Jaderow Ltd. and others, 1991 All England Law\n\t Reports 41, referred to.\n\t\t\t\t\t\t  927\n\t Wade's\t Administrative\t Law  (6th  Edition),\tPage\n\t 520-21, referred to.\n     6.01.   There  is\ta  great  distinction  between\t the\nlegislative  intention\tand  the purpose or  object  of\t the\nlegislation.  While the object of legislation is to  provide\na  remedy for the malady, on the contrary,  the\t legislative\nintention relates to the meaning from the exposition of\t the\nremedy as enacted.  For determining the purpose of object of\nlegislation,  indeed,  it is permissible to  look  into\t the\ncircumstances which were prevalent at that time when the law\nwas  enacted  and  which necessitated  the  passing  of\t the\nenactment.   For  the limited purpose  of  appreciating\t the\nbackground and the antecedents factual matrix leading to the\nlegislation  it\t is  open  to the court\t to  look  into\t the\nstatement  of  'Objects\t and  Reasons'\tof  the\t Bill  which\naccentuated  the statement to provide a remedy for the\tthen\nexisting malady.  [964G-965A]\n     6.02.  The statement of Objects and Reasons' brings out\nthe  object  of the desirability of introducing\t an  age  of\nsuperannuation\t as   the   same  is   entrenched   in\t our\nadministrative and constitutional systems.  With this object\nin  view,  Section  3<\/a> intends that no one  has\ta  right  to\ncontinue as a member of the Board after attaining the age of\n65.   Thus,  the only conclusion possible is, by  reason  of\nappointment  if\t the incumbent is enable to  continue  after\nattaining  the age of 65 years such continuing\tis  rendered\nvoid. [965B-D]\n     6.03.  Section 5<\/a> (6) as amended achieves this  purpose.\nYet if there is another Section which deals with the same it\nmust  be  regarded  as one introduced  by  way\tof  abundant\ncaution.  In short, Section 3<\/a> (1) is epexegesis. [965D]\n     6.04.   Where the right to continue in office has\tbeen\nput  an\t end to by statute, even then it may  be  complained\nthat  the other rights like salary and perks would  continue\nto  be\treserved and they could be claimed.  To\t avoid\tthat\ncontention,   Section\t3(2)<\/a>   provides\t  for\tcompensation\nequivalent  to the amount of salary and allowances  for\t the\nunexpired term of office.  [967G]\n     6.05.  On 13.7.90 the first respondent's right to\thold\noffice\tas Chairman\/Member of Himachal\tPradesh\t Electricity\nBoard came to an end.  The State to pay the first respondent\nthe  salary, allowances and perks for the period  commencing\nfrom 13.7.90 upto 25.7.92, had he continued in office\n\t\t\t\t\t\t  928\nbut  for the impugned legislation.  If any payment has\tbeen\nmade by interim orders of the court that will go towards the\ndeduction of this liability.\n\t\t\t\t\t\t    [984B,D]\n\t  Francis  Bennions Statutory  Interpretation  (1984\n\t  edn.)\t at page 237; State of West Bengal v.  Union\n\t  of India<\/a>, [1964] 1 SCR 371, referred to.\n     7.01.   There  could  be a legislation  relating  to  a\nsingle\tperson.\t Assuming for a moment, that the  Section  3<\/a>\napplies only to the first respondent even then, where it  is\navowed\t policy\t of  the  State\t to  introduce\tan  age\t  of\nsuperannuation\tof 65 years of age, there is  nothing  wrong\nwith the same. [971C]\n     7.02.  The legislative object is to introduce an age of\nsuperannnuation.    Beyond   this  nothing  more   need\t  be\nestablished   by  the  State.\tThe  possibility   of\tthis\nlegislation  applying  to  one or  more\t persons  exists  in\nprinciple.   The  fact that only one individual came  to  be\naffected   cannot  render  the\tlegislation   arbitrary\t  as\nviolative  of  Article\t14.<\/a>  This is because  Section  3<\/a>  is\ngeneral\t in terms and the incidence of its applying  to\t one\nindividual does not render the legislation invalid. [975B-C]\n     7.03.   If the State is well entitled to  introduce  an\nage   of   superannuation,   how  could\t  that\t be   called\ndiscrimination on unreasonable?\t The resultant conclusion is\nthe  amending  Act, particularly, Section 3<\/a> is not,  in\t any\nway, arbitrary and, therefore, not violative of Article\t 14.<\/a>\n[982E]\n\t Ram  Prasad Narayan Sahi and Anr. v. The  State  of\n\t Bihar and others<\/a>, [1953] SCR 1129; Shri Ram Krishna\n\t Dalmia\t v.  Shri Justice S.R. Tendolkar  &  Others<\/a>,\n\t [1959]\t SCR 279; Swastik Rubber Products Ltd.\tetc.\n\t etc. v. Municipal Corporation of the City of  Poona\n\t &  Anr., [1982] 1 SCR 729; Chiranjit Lal  Chowdhury\n\t v.  The Union of India and Ors<\/a>., [1950] 1 SCR\t869;\n\t Thakur\t Raghubir  Singh and Ors. v.  The  State  of\n\t Ajmer\t(Now  Rajasthan)  & Ors<\/a>.,  [1959]  SCR\t478;\n\t Lachhman Das on behalf of Firm Tilak Ram Ram Bux v.\n\t State of Punjab and Ors<\/a>., [1963] 2 SCR 353 at\tpage\n\t 374; Tilkayat Shri Govindlalji Maharaj v. The State\n\t of Rajasthan & Ors<\/a>., [1964] 1 SCR  561; S.P. Mittal\n\t etc.  etc. v. Union of India & Ors., [1983]  1\t SCR\n\t 729; State of Uttar Pradesh v. Lakshmi Ice  Factory\n\t &  Ors<\/a>.,  [1962]  Supp. 3  SCR\t 59;  Lalit  Narayan\n\t Mishra,  Institute  of\t Economic  Development\t and\n\t Social\n\t\t\t\t\t\t       929\n\t Change,  Patna etc. v. State of Bihar &  Ors.\tetc.\n\t [1988] 3 SCR 311; D.S. Reddy v. Chancellor, Osmania\n\t University  &\tOrs<\/a>., [1967] 2 SCR  214;  The  Atlas\n\t Cycle\tIndustries Ltd., Sonepat v.  Their  Workmen<\/a>,\n\t [1962] 3 SCR 89 at pages 103-4; Ameerunnissa  Begum\n\t and Others v. Mahboob Begum and Others<\/a>, [1953]\t SCR\n\t 404, referred to.\n\t American  Jurisprudence (2nd Ed.) Vol.63, Para\t 42,\n\t referred to.\n     8.01   The plea that the decision of the court  in\t the\nabsence\t of  Chauhan  would be\tviolative  of  principle  of\nnatural justice as any adverse decision would affect him  is\nnot correct. [982H]\n     8.02.   What  was the first respondent seeking  in\t the\nwrit  petition?\t  He  was questioning the  validity  of\t the\nOrdinance  and the Act whereby he had been deprived  of\t his\nfurther continuance.  What is the relief could he have asked\nfor against Chauhan?  None.  The first point is Chauhan came\nto  be appointed consequent to the suspension of  the  first\nrespondent  which  suspension had come to be stayed  by\t the\nHigh  Court on 12.6.90.\t Then, again, as pointed out by\t the\nHigh  Court  it was \"till further orders\",  the\t failure  to\nimplead\t Chauhan does not affect the maintainability of\t the\nwrit petition. [983D-E]\n\t B.  Prabhakar\tRao  and Other v.  State  of  Andhra\n\t Pradesh<\/a>  and  Others,\t[1985] (Supp)  SCC  432;  A.\n\t Janardhana  v. Union of India and Others<\/a>, [1983]  3\n\t SCC  601  at page 626; Pritam Singh v.\t The  State<\/a>,\n\t [1950] 1 SCR 453, referred to.\n\t State of Kerala and Anr. v. Miss Rajia Rahim<\/a>  etc.,\n\t AIR 1978 Kerala 176; Padmraj Samarendra and  Others\n\t v.  State  of Bihar and Anr<\/a>., AIR 1979\t Patna\t266;\n\t A.R. Antulay v. R.S. Nayak & Anr<\/a>. [1988] Supp 1 SCR\n\t 1 at page 59, distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL  APPELLATE JURISDICTIOIN : Civil Appeal No.\t3062
\nof 1991.\n<\/p>\n
     From  the\tjudgment and Order dated  12.7.1991  of\t the
\nHimachal Pradesh High Court in C.W.P. No. 396 of 1990.\n<\/p>\n
     Shanti  Bhushan,  Chabbil Das, Advocate  General,\tA.M.
\nSinghvi,  E.C.\tAgrawala, Atul Sharma, A.V. Palli,  Mrs.  P.
\nBhatt and Ms. Reena Aggarwal
\n\t\t\t\t\t\t  930<\/span>
\nfor the Appellants.\n<\/p>\n
     Kapil  Sibal,  Ranjit  Kumar,  Mrs.  Rashmi  Kathpalia,
\nYashana Adhyaru and Sudhir Walia for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     MOHAN,  J.\t The facts relating to the Civil Appeal\t are
\nas under:-\n<\/p>\n
     The  first\t respondent  (Mr.  Kailash  Chand   Mahajan)
\nretired\t from the post of Chief Engineer from the  State  of
\nPunjab.\t  On  24.7.81,\the  was appointed  as  a  member  of
\nHimachal  Pradesh  State Electricity  Board  and  thereafter
\nappointed as Chairman of the said board for a period of\t two
\nyears.\t On 13.8.82, the following notification came  to  be
\nissued:-\n<\/p>\n
     No.  8-155\/73-DP (Apptt. II) Dated Shimla- 2, the\t13th
\nAug. 1982
\n\t\t\t NOTIFICATION
\n     In exercise of the powers conferred by Section 5<\/a> of the
\nElectricity  (Supply)  Act,  1948,  the\t Governor,  Himachal
\nPradesh,  is  pleased to appoint Shri Kailash  Chand,  Retd.
\nChief  Engineer\t (Irrigation) Punjab, whose  appointment  as
\nMember, H.P. State Electricity Board, has been notified vide
\nNotification  of even number, dated the 24th July, 1981,  as
\nChairman, H.P. State Electricity Board for a period of\tfive
\nyears, with effect from 25th July, 1981. Detailed terms\t and
\nconditions  of\this  appointment  has  already\tbeen  issued
\nseparately.\n<\/p>\n
     This is in supersession of this deptt.  Notification of
\neven number, dated the 24th July, 1981.\n<\/p>\n
\t\t\t\t\t\t     By Order
\n\t\t\t\t\t\t K.C. Pandeya
\n\t\t\t\t       Chief Secretary to the
\n\t\t\t      Government of Himachal Pradesh”\n<\/p>\n
     On\t 12.5.86,  the\tterm as Chairman  was  extended\t for
\nanother period of three years in the following terms :-\n<\/p>\n
     “No.  8-155\/73  – DP (Apptt. II), dated Shimla  2,\t the
\n12th May, 1986.\n<\/p>\n
\t\t\t\t\t\t  931<\/span><\/p>\n
\t\t\t Notification
\n\t In  continuation of this Department’s\tNotification
\n\t of  even  number, dated  13.8.1982,  the  Governor,
\n\t Himachal   Pradesh   is  pleased  to\textend\t the
\n\t appointment  of  Shri\tKailash\t Chand\tMahajan\t  as
\n\t Chairman of the H.P. State Electricity Board for  a
\n\t further period of three years with effect from 25th
\n\t July  , 1986, on the existing terms and  conditions
\n\t of his appointment as Chairman.\n<\/p>\n
\t\t\t\t\t\t    By Order
\n\t\t\t\t\t       (P.K. Mattoo)
\n\t\t\t\t      Chief Secretary to the
\n\t\t\t    Government of Himachal Pradesh”.\n<\/p>\n
     There  was a further extension on 12.6.89 for a  period
\nof 3 years and that notification read as under :-\n<\/p>\n
     “No. 8-155\/73 -DP (Apptt. II) dated Shimla -2 the\t12th
\nJune, 1989.\n<\/p>\n
\t\t      Notification
\n\t In  continuation of this Department’s\tNotification
\n\t of   even  number,  dated  12th  May,\t 1986,\t the
\n\t Governor, Himachal Pradesh is pleased to extend the
\n\t appointment   of  Sh.\tKailash\t Chand\tMahajan\t  as
\n\t Chairman of the H.P. State Electricity Board for  a
\n\t further period of three years with effect from 25th
\n\t July, 1989, on the existing terms and conditions of
\n\t his appointment as Chairman.\n<\/p>\n
     2.\t  The Governor, Himachal Pradesh is further  pleased
\nto  order  that Shri Kailash Chand Mahajan,  Chairman,\tH.P.
\nState  Electricity Board shall also continue to function  as
\nSecretary  (M.P.P. and Power) to the Government of  Himachal
\nPradesh.\n<\/p>\n
\t\t\t\t\t\t    By Order
\n\t\t\t\t\t\t (B.C. Negi)
\n\t\t\t\t      Chief Secretary to the
\n\t\t\t      Government of Himachal Pradesh.\n<\/p>\n
\t\t\t\t\t\t  932<\/span><\/p>\n
     Therefore,\t it is obvious that the appointment  was  to
\ncontinue upto 25.7.92.\n<\/p>\n
     In January, 1990, elections to the Legislative Assembly
\nof  the\t State of Himachal Pradesh were\t scheduled  to\ttake
\nplace.\tThe respondent in his affidavit would aver that\t the
\nthird respondent (i.e.. Mr. Shanta Kumar, the Chief Minister
\nof  Himachal Pradesh) is alleged to have made speeches\tthat
\nshould\the come to power he would have the first  respondent
\nremoved from the chairmanship of the Electricity Board.\t  On
\n5.3.90, the third respondent became the Chief Minister.\t   A
\nnotification dated 6.3.90, came to be issued in supersession
\nof  the notification dated 12.6.89 that the  appointment  of
\nthe  first  respondent as Chairman of the  Himachal  Pradesh
\nState Electricity Board is extended from 25.7.89 to 6.3.90.\n<\/p>\n
     Another notification dated 6.3.90 was issued  directing
\nthat  Mr.  R.S.S. Chauhan shall function as  Chairman,\tH.P.
\nState  Electricity Board w.e.f. 7.3.90.\t At this  stage\t the
\nfirst  respondent  preferred  a\t Writ  Petition\t No.  123\/90
\nchallenging  the validity of the notification dated  6.3.90,
\nand  prayed for certiorari  to quash the same.\t While\tthat
\nwrit petition was pending, on 30.3.90, another\tnotification
\nwas   issued  terminating  the\tappointment  of\t the   first
\nrespondent as Member of the State Electricity Board.\n<\/p>\n
     On\t 30.3.90,  the High Court while admitting  the\twrit
\npetition  (CWP No. 123 of 1990) ordered that no\t appointment
\nto the post of Chairman of the State Electricity Board\twill
\nbe  made till further orders of the Court.  The\t matter\t was
\nheard\ton  22.5.90.   The  learned  Advocate\tGeneral\t  on
\nconclusion  of\this  argument requested the  court  that  th
\njudgment  may  not be pronounced since he  desired  to\tseek
\ninstructions from the Government to reconsider the  impugned
\norder  in  CWP\tNo. 123 of 1990.  On  11.6.90,\tthe  learned
\nAdvocate  General  submitted  to the  court  that  both\t the
\nnotification  dated 6.3.90 and 30.3.90 would  be  withdrawn.
\nAn  undertaking to that effect was given.   Accordingly\t the
\nwrit   petition\t was  disposed\tof.   Consequent   to\tthis
\nundertaking,  by notification dated 11.6.90, the  Government
\nof  Himachal Pradesh withdrew both the\tnotifications  dated
\n6.3.90 and 30.3.90.  However, the matter did not rest there.
\nOn  11.6.90,  a show cause notice was issued  to  the  first
\nrespondent for having abused his position as Chairman,\tH.P.
\nState Electricity Board and also ex-offico Secretary, M.P.P.
\n& Power.  He was also asked to submit his explanation within
\n21  days as to why action should not be taken under  Section
\n10<\/a> of the Electricity (Supply)
\n\t\t\t\t\t\t  933<\/span>
\nAct,  1948.   Simultaneously, it was also ordered  that\t the
\nshall  be placed under suspension with immediate  effect  by
\nvirtue\t of  power  under  Section  10<\/a>\tof  the\t said\tAct.
\nConsequent upon the suspension of the first respondent,\t the
\nnotification dated 16th July, 1990 came to be issued placing
\nMr.   R.S.S.   Chauhan,\t Member\t  (Operations),\t  HP   State
\nElectricity  Board as Chairman with immediate  effect  until
\nfurther orders.\n<\/p>\n
     Being aggrieved by the above show cause notice and\t the
\norder  of suspension, the first respondent filed CWP 303  of
\n1990  on 12.6.90.  The High Court while admitting  the\twrit
\npetition granted interim stay of the order of suspension.\n<\/p>\n
     On\t 22.6.90,  the\tChief  Secretary  of  the  Govt.  of
\nHimachal  Pradesh  wrote  to the  Secretary,  Government  of
\nIndia,\t Ministry of Home Affairs, New Delhi requesting\t for
\npermission to promulgate Electricity (Supply H.P. Amendment)
\nOrdinance,  1990.   It\twas stated in  the  letter  that  at
\npresent no age limit has been prescribed for holding  office
\nof  the\t Member\t of  the State\tElectricity  Board,  it\t was
\nnecessary to prescrible an upper age limit.  The concept  of
\nterminal appointment at which a person should cease to\thold
\njudicial   offices   and  civil\t posts\tis   entrenched\t  in
\nadministrative and constitutional system.  Therefore, it was
\nproposed through the ordinance that no person above the\t age
\nof 65 years could be appointed and continued as Chairman  or
\nMember of H.P. State Electricity Board.\t This provision\t was
\nnot  only to apply to future appointments, but also  to\t the
\nexisting  Chairman  and\t Members,  and\twhere  the  existing
\nincumbent’s tenure is curtailed adequate compensation  could
\nbe provided.  No doubt, rules could be framed under  Section
\n78<\/a>  of the Electricity (Supply) Act, 1948.  But those  rules
\ncannot\thave  retrospective operations, hence  the  proposed
\nordinance.\n<\/p>\n
     On 9.7.90, the Government of India replied pointing out
\nthe  desirability  of the State\t Government  examining\twith
\nreference  to  the relevant provisions of the  Act  and\t the
\nconstitution  about  the promulgating the  ordinance.\tThis
\nState  was  also  advised  to  explore\tthe  feasibility  of
\namending the rules.\n<\/p>\n
     On\t 13.7.90, the Governor\t of Himachal Pradesh  issued
\nan  ordinance,\ti.e. H.P. Ordinance Rule of  2\/90,  amending
\nSection\t 5<\/a>  (6)\t of  the  Electricity  (Supply)\t Act<\/a>.\t The
\nordinance reads to the following effect :_
\n\t\t\t\t\t\t  934<\/span>
\n\t     “AUTHORITATIVE ENGLISH TEST”.\n<\/p>\n
\t\t\t   H.P. ORDINANCE No………of 1990.\n<\/p>\n
THE  ELECTRICITY  (SUPPLY)    (HIMACHAL\t PRADESH   AMENDMENT)
\nORDINANCE, 1990
\n\t Promulgated by the Governor of Himachal Pradesh  in
\n\t the Forty-first year of the Republic of India.
\n\t An Ordinance to amend the Electricity (Supply) Act<\/a>,
\n\t 1948\t(Central  Act<\/a>  No.  54\tof  1948)   in\t its
\n\t application of the State of Himachal Pradesh.
\n\t Whereas  the Legislative Assembly of the  State  of
\n\t Himachal Pradesh is not in session and the Governor
\n\t is satisfied that circumstances exist which  render
\n\t it necessary for him to take immediate action;
\n\t And  whereas  instructions from  the  President  of
\n\t India\t to  promulgate\t the  Ordinance\t have\tbeen
\n\t obtained;\n<\/p>\n
\t Now, therefore, in exercise of the powers conferred
\n\t by clause (1) of Article 213<\/a> of the Constitution of
\n\t India, the Governor of Himachal Pradesh is  pleased
\n\t to promulgate the following Ordinance :-\n<\/p>\n
\t 1.  This  Ordinance may be called  the\t Electricity
\n\t (Suppy) (Himachal Pradesh Amendment) Ordinanc,1990.\n<\/p>\n
\t 2.   In  Sub-section  (6)  of\tsection\t 5<\/a>  of\t the
\n\t Electricity  (Supply) Act, 1948, for the words\t “if
\n\t he is a member of parliament”, the words “if he has
\n\t attained  the\tage of 65 years or is  a  member  of
\n\t Parliament” shall be substituted.\n<\/p>\n
\t 3.  (1)  Notwithstanding anything to  the  contrary
\n\t contained  in\tany provisions\tof  the\t Electricity
\n\t (Supply) Act<\/a>, 1948, rules, regulations or  bye-laws
\n\t made thereunder or in any judgment, decree or order
\n\t of  the  Court, any appointment,  made\t before\t the
\n\t commencement of the Electricity (Supply)  (Himachal
\n\t Pradesh  Amendment)  Ordinance,  1990,\t whereby   a
\n\t person has
\n\t\t\t\t\t\t  935<\/span>
\n\t a right to continue as a member of the Board  after
\n\t attaining  the age of 65 years, shall be void;\t and
\n\t on  such  commencement he shall be deemed  to\thave
\n\t ceased to hold office of the Member of the Board.
\n\t (2)  On ceasing to hold office of the member of the
\n\t Board\tunder sub-section (1), such member shall  be
\n\t entitled to a compensation as may be determined  by
\n\t the  State Government; but such compensation  shall
\n\t not  exceed the amount equivalent to the amount  of
\n\t salary\t and  allowances  payable  to  him  for\t his
\n\t unexpired term.\n<\/p>\n
\t\t\t\t\t\t  B. Rachaiah
\n\t\t\t\t\t\t     Governor
\n     Shimla
\n     The …… 1990.”\n<\/p>\n
     As\t a  sequel  to\tthe issue  of  this  ordinance,\t the
\nfollowing notification was issued on 16.7.90 :-\n<\/p>\n
\t  “Government of Himachal Pradesh
\n\t  Department of Personnel (AP – II)
\n     No. 8-155\/71 -DP (Apptt. II) Dated, Shimla -2, the 16th
\nJuly, 1990.<\/p><\/blockquote>\n
\t\t       NOTIFICATION
\n\t Whereas   as  a  result  of  promulgation  of\t the
\n\t Electricity  (Supply) (Himachal Pradesh  Amendment)
\n\t Ordinance  1990,  vide Notification No.  LLR-D\t (6)
\n\t 8\/90- Legislation dated 13th July, 1990,  published
\n\t in the Rajpatra dated 13th July, 1990, Shri Kaialsh
\n\t Chand\tMahajan,  Chairman, H.P.  State\t Electricity
\n\t Board, having already attained the age of more than
\n\t sixty-five,  years, has ceased to be Member of\t the
\n\t H.P.  State  Electricity  Board  and\tconsequently
\n\t Chairman of the said Board.\n<\/p>\n
     NOW, THEREFORE, in exercise of the powers vested in him
\nunder  sub-section  (5)\t of section  5<\/a>\tof  the\t Electricity
\n(Supply)  Act,\t1948,  the Governor,  Himachal\tPradesh,  is
\npleased to appoint Shri R.S.S. Chauhan, Member\t(Operation),
\nH.P. State Electricity Board as Chairman of the HP
\n\t\t\t\t\t\t  936<\/span>
\nState Electricity Board with immediate effect, till  further
\norders.\n<\/p>\n
\t\t\t\t\t\t     By Order
\n\t\t\t\t\t       M.S. Mukherjee
\n\t\t\t\t\tChief Secretary to the
\n\t\t\t\t    Govt. of Himachal Pradesh.\n<\/p>\n
     Aggrieved\tby  the\t ordinance  dated  13.7.90  and\t the
\nabove notification dated 16.7.90, the first respondent filed
\nCWP  No.  396 of 1990, praying for certiorari to  quash\t the
\nordinance as well as the  notifications.\n<\/p>\n
     Inter  alia,  the first respondent as  writ  petitioner
\nbefore the High Court urged that there has been a deliberate
\nattempt\t on the part of the State to get rid of him  through
\nthe ordinance.\tThe same is violative of Articles 14 and  16
\nConstitution.\tIn so far as he is the only person  affected
\nby  the ordinance having crossed the age of 65, he had\tbeen
\nsingled\t out for a total discriminatory treatment.  It is  a
\ncolourable  exercise of power.\tWhile obtaining the  consent
\nof  the President of India with regard to a subject  falling
\nunder the Concurrent List, it was not even let known that  a
\nwrit   petition\t  was  actually\t  pending   concerning\t the
\npetitioner.   There  had been a\t deliberate  concealment  of
\nfacts.\tIn any event, the Chief Minister (who was the fourth
\nrespondent)  was activated by malafides.  He was  determined
\nto  remove  the\t writ  petitioner, as he  held\tout  in\t the
\nelection meeting.\n<\/p>\n
     The  State\t filed a detailed  counter  affidavit.\t The
\ncourt  respondent (the Chief Minister)\tspecifically  denied
\nthe  allegations of malafides and urged that  the  ordinance
\ncame to be issued since a policy decision had been taken  to
\nintroduce  age\tof superannuation fixing the  limit  at\t 65.
\nDuring the pendency of the writ petition, the ordinance came
\nto be replaced by the Electricity (Supply) (Himachal Pradesh
\nAmendment) Act, 1990 (H.P. Act<\/a> of 10 of 1990). Therefore, an
\napplication  for  amendment was taken  out  challenging\t the
\nvalidity  of the amending act.\tBefore the High\t Court,\t the
\nfollowing points were urged :-\n<\/p>\n
      (i) malafides –\n<\/p><\/blockquote>\n
\t  (a) against the Chief Minister; and
\n\t\t\t\t\t\t  937<\/span>\n<\/p><\/blockquote>\n
\t    (b) against the legislature.\n<\/p><\/blockquote>\n
\t (ii)  the act was unconstitutional  and  arbitrary.
\n\t In  that  it  had been passed to  get\trid  of\t the
\n\t petitioner, though a single person legislation\t was
\n\t permissible in law, yet where the discrimination of
\n\t the  petitioner  was  wholly  unjustified  such   a
\n\t legislation would be bad in law.\n<\/p>\n
\t (iii)\t  The  enactment was void  as  violative  of
\n\t Article 254.<\/a>\n<\/p>\n
\t (iv)\t It was also violative of Article 21<\/a>  as  it
\n\t damaged  the  reputation  of  the  writ  petitioner
\n\t therein.\n<\/p>\n
\t (v)  Section  3(1)<\/a> of the Ordinance\/Act  renders  a
\n\t judgment of the court void and was unconstitutional
\n\t as being excessive legislative powers in so far  as
\n\t it impinges upon the judicial field.\n<\/p>\n
\t (vi)\tInasmuch as the right of the  petitioner  to
\n\t continue as a Member\/Chairman of the Board had been
\n\t taken\taway,  it is violative of Article  19.<\/a>\t The
\n\t compensation  provided under section 3(2)<\/a> is  vague
\n\t and illusory.\n<\/p>\n
\t (vii)\t  Section  3(1)<\/a>\t does  not  apply   to\t the
\n\t petitioner at all.\n<\/p>\n
     The Division Bench held that the evidence furnished  by
\nthe petitioner in the form of newspaper reports would not be
\nenough\tto  hold that the Chief MInister  had  any  personal
\nbias.  The legislature as a body cannot be accused of having
\npassed\ta  law\tfor an extraneous  purpose.   Therefore,  no
\nmalafides could be attributed to the legislature.\n<\/p>\n
     Dealing  with  the repugnancy it was held that  by\t the
\nimpugned  ordinance of the Electricity (Supply) Act<\/a>, an\t age
\nof  superannuation has been brought in.\t There was  no\tsuch
\nage prescribed by the Central Act<\/a>.  Therefore, there was  no
\nrepugnancy.\n<\/p>\n
     By\t mere  curtailment of the term as  Chairman  of\t the
\nBoard\twithout\t  any  mention\tabout\this   inability\t  or
\nprofessional  competence, so as to affect his reputation  in
\nany  manner, no injury had taken place so as to complain  of
\nviolation  of Article 21<\/a> of the Constitution.  The  plea  of
\ninterference with judicial power was negatived.\t The plea of
\nviolation  of Article 19<\/a> that the provision of\tcompensation
\nis illusory was negatived.\n<\/p>\n
\t\t\t\t\t\t  938<\/span><\/p>\n
     On\t an elaborate consideration of violation of  Article
\n14<\/a>,  the court after referring to the leading  decisions  of
\nthis  court concluded that prescription of maximum   age  by
\nthe amending act at 65 years cannot be said to be  arbitrary
\nor irrational.\tMoreover public interest demands that  there
\nought to be an age of retirement  in public services.\n<\/p>\n
     On\t the ancillary question whether the legislation\t had
\nbeen enacted only with a view to get rid off the  petitioner
\nand   whether  it  would  be  bad  as  a   single   person’s
\nlegislation,  it  was held that there  was  nothing  illegal
\nabout  it.  In relation to applicability of Section 3(1)<\/a>  of
\nthe amending act to the petitioner, the High Court construed
\nthat Section 3(1)<\/a> will apply only to an appointment where  a
\nperson\thas a right to continue after the attainment  of  65
\nyears.\t If,  therefore, the petitioner had  been  appointed
\nafter  he had attained the age of 65 years, he would not  be
\naffected by Section 3(1)<\/a>.  Any contrary inference would\t not
\nbe  justified by its language.\tIt was also held  that\twhen
\nSection 5(6)<\/a> precluded the petitioner from “being a  member”
\nof  the Board after he had attained 65 years of\t age,  would
\nnot help the State as it would apply only prospectively.  We
\nmay  also  refer  to that particular  argument\tadvanced  on
\nbehalf\tof  the State that Mr. R.S.S.  Chauhan\thaving\tbeen
\nappointed as Chairman, he ought to have been impleaded as  a
\nparty.\tThe court rejected the plea not only on\t the  ground
\nthat  he was not a necessary party,  but also on the  ground
\nthat his appointment was only “until further orders.”\n<\/p>\n
     In the result, the notification dated July, 17 1990 was
\nquashed.   It  is under these circumstances,  Special  Leave
\nPetition was preferred to the court.  By an order dated\t 5th
\nAugust, 1991, special leave was granted.  Hence, this  Civil
\nAppeal.\n<\/p>\n
     Mr.  Shanti Bhushan, learned counsel appearing  for  th
\nState of Himachal Pradesh after taking us through the orders
\nof appointment and the extensions would urge that though the
\ninapplicability of the Ordinance or Acts was not raised, the
\nHigh Court had allowed the argument.  In other words, it was
\nnever urged that the Ordinance\/Act was not applicable to the
\nfirst respondent.  A bare reading of Section 2<\/a> which amended
\nSection 5<\/a> (6) of the Electricity (Supply) Act<\/a> and Section  3<\/a>
\nof the amending act, both individually and conjoinly lead to
\nthe  only conclusion that the Act disqualifies every  person
\nfrom  holding office who on the date of\t enactment,  namely,
\n13th July, 1990 is above 65 years.\n<\/p>\n
\t\t\t\t\t\t  939<\/span><\/p>\n
     The   Act<\/a>\ton  its\t own  terms  makes  no\t distinction
\nwhatsoever  between those persons who have already  attained
\nthe  age of 65 years on the date of enactment or  those\t who
\nare  less than 65 years.  Therefore, the High Court was\t not
\nright  in  introducing an artificial distinction.   For\t the
\npurpose of his argument he would submit that Section 5(6)<\/a> as
\namended, would disqualify all persons who are at the time of
\nthe amendment 65 years or above.  The language is very\twide
\nin  its\t comprehension.\t  When\tit  says  “or  being”,\tthis
\ncorresponds  to\t Article 102<\/a> of the Constitution as  well as
\nArticle 191<\/a>, this provision being made applicable either  to
\nthe Members of Parliament or to the legislative body of\t the
\nState  respectively.   It  has been held  in  Pasupati\tNath
\nSukul,\tElection Commission of India, State of U.P.  v.\t Nem
\nChand  Jain  and Others, [1984] 2 S.C.C., 404  that  on\t the
\nincurring  of  the qualification he ceases to  be  a  member
\nthereof.   Therefore, there is a automatic cessation of\t the
\nright  to  hold office,that is the purpose of  “or   being’.
\nThese  is  no necessity to remove the first  respondent,  by
\nresorting  to  Section\t10<\/a> because Section 5<\/a>  (6)  is  self-
\nexecutory.   Therefore,\t by  operation\tof  law,  the  first
\nrespondent ceases to hold office on the date of coming\tinto
\nforce of the amending Act.\n<\/p>\n
     In\t Election  Commission, India v. Saka  Venkata  Subba
\nRao<\/a>,  [1953]  S.C.R.  1144,  it has  been  held\t on  similar
\nlanguage  occurring in the Constitution that  it  postulates
\nboth  existing and supervening disqualification.  If  it  is
\nthe  avowed  policy  of the State to  prescribe\t an  age  of
\nsuperannuation,\t certainly  nobody could have  a  legitimate
\ncomplaint.   In fact, there are identical State\t legislative
\nenactments in Andhra Pradesh and Uttar Pradesh specifying an
\nage   of   superannnuation.   This  court  upheld   such   a
\nprescription in several cases.\tHence, the first  respondent
\ncannot\tcomplain  that he could\t continue  indefinitely\t and
\nothers be retired at the age of 65.\n<\/p>\n
     Section  3<\/a> of the amending Act was given  retrospective
\neffect\t from\t13.7.90.   This\t  Section   presupposes\t  an
\nappointment  prior to amendment, namely, prior\tto  13.7.90.
\nIn  this  case, the appointment gives a\t right\tto  continue
\nafter attaining the age of 65 years.  If, therefore, the two
\ntests  are  answered,  the  appointment\t is  rendered\tvoid
\nirrespective  of the fact when the appointment\ttool  place.
\nThe  “Objects  & Reasons” of the Act put the  matter  beyond
\ndoubt.\tIn our country, the concept of age of superannuation
\nis   entrenched\t  both\t in  administrative   as   well\t  as
\nconstitutional systems.\t Public policy requires to prescribe
\nthe  age  of  65  years for retirement\tof  the\t members  of
\nElectricity Board as in the case of High Court Judges, mem-\n<\/p>\n
\t\t\t\t\t\t  940<\/span><\/p>\n
bers of tribunal and other high functionaries.\n<\/p>\n
     The High Court had gone wrong as though the appointment
\nof  the\t first respondent was not covered  by  Section\t3(1)<\/a>
\nsince  the right to continue as Chairman was pursuant to  an
\nappointment  after  he\thad attained the age  of  65  years.
\nFactually  this is incorrect because the appointment of\t the
\nfirst respondent as Chairman was on 13.8.82.  Thereafter the
\nsame  appointment  came to be extended from  time  to  time.
\nEach   of   those  extensions  cannot\tconstitute   a\t new
\nappointment.  It is one appointment which is being continued
\nfrom time to time.  Legally speaking, also, the reasoning of
\nthe   High   Court   is\t  wrong\t  because   it\t leads\t  to
\nunconstitutionality.  In that case persons who attained\t the
\nage  of 65 years after the amending Act would be obliged  to
\nretire\twhile  the older persons like the  first  respondent
\nwould  remain  in  office.   This  will\t clearly  amount  to
\ndiscrimination.\t  Thus either by way of Section 5(6)<\/a> of\t the
\nElectricity  (Supply) Act, as amended or under Section\t3(1)<\/a>
\nof  the\t amending Act, the first respondent would  cease  to
\nhold  office.\tAs  a matter of fact,  Section\t3<\/a>  has\tbeen
\nintroduced  only by way of abundant caution.  It is also  to
\nbe noted that Section 3(1)<\/a> contains a `non obstante’  clause
\nand  it renders any judgment contract\/order or\tcontrary  to
\nthis  Sub-section void.\t The legislature has introduced\t the
\nnon obstante clause to put the matter beyond doubt.\n<\/p>\n
     This  legislation\tis  general  in\t its  terms  and  it
\napplication.   The  fact that at the relevant  time  of\t the
\namending  Act  or even the ordinance, the  first  respondent
\nalone was affected is no ground to hold that it is a  single
\nperson’s legislation.  This court, as a matter of fact,\t has
\nupheld such pieces of legislation in Chiranjit Lal chowdhury
\nv.  The\t Union\tof  India  and\tOrs.,  [1950]  S.C.R.\t869,
\n(particularly  the passages occurring at pages\t878-79).  On
\nthe  basis of its ruling it is submitted that even if it  is
\nheld  a\t single person’s legislation, if  he  constitutes  a
\nclass  by himself, such a legislation would be\tvalid.\t The
\nsame  principle is stated in Thakur Raghubir Singh and\tOrs.
\nv. The State of Ajmer (Now Rajasthan) & Ors<\/a>., [1959]  S.C.R.\n<\/p>\n
478.  Again in Lachhman Das on behalf of firm Tilak Ram\t Ram
\nBux v. State of Punjab and Ors<\/a>., [1963] 2 S.C.R. 353 @\t374,
\nit  has been held that a law applying to one person  or\t one
\nclass  of persons is constitutional if there  is  sufficient
\nbasis  or  reason  for it.   In\t Tilkayat  Shri\t Govindlalji
\nMaharaj\t v. The State of Rajasthan & Ors<\/a>.,  [1964] 1  S.C.R.
\n561  where  a legislation was confined only to\tone  of\t the
\ntemples, it was held not to be in violation of Article 14<\/a> of
\nthe  Constitution.   To the similar effect are\tS.P.  Mittal
\netc. etc.
\n\t\t\t\t\t\t   941<\/span>
\nv.  Union of India & Ors., [1983] 1 S.C.R. 729 and in  State
\nof Uttar Pradesh v. Lakshmi Ice Factory & Ors<\/a>., [1962] Supp.
\n3  S.C.R. 59.  Again, in Lalit Narayan Mishra  Institute  of
\nEconomic Development and Social Change, Patna etc. v.  State
\nof  Bihar & Ors. etc., [1988] 3 S.C.R. 311, even though\t the
\nAct  was  general in terms and applied to only\tone  of\t the
\ninstitutions  at  the relevant time, having  regard  to\t the
\npolicy of nationalisation, it was upheld.  The case of\tD.S.
\nReddy  v.  Chancellor, Osmania University & Ors<\/a>.,  [1967]  2
\nS.C.R.\t214,  has no application to the facts  of  the\tcase
\nbecause though the Act was general in its application,\tyet,
\nit applied to only one individual who was when occupying the
\npost of Vice Chancellor of Osmania University.\tThus, it  is
\nsubmitted  as  read  from  the\tstatement  of  `Objects\t and
\nReasons’ of the amending Act, if the policy to\tsuperannuate
\nat  the\t age of 65 is in order to give full  effect  to\t the
\npolicy,\t provision will have to be made for those  who\thave
\nattained the age of 65 also.  This is what Section 3(1)<\/a> aims
\nat.\n<\/p>\n
     Looking   it  form\t that  point  of  view\tthis  is   a
\nlegislation which applies to all.  The chance that the first
\nrespondent was affected at the relevant time by introduction
\nof  this  legislation  will  not in  any  manner  render  it
\nviolative  of Article 14<\/a> on the ground that it is  a  single
\nperson’s legislation.\n<\/p>\n
     If\t the  law  is settled that  no\tmalafides  could  be
\nattributed   to\t the  Legislature,  an\targument  that\t the
\namendment  has\tbeen passed only with a view to\t punish\t the
\nfirst  respondent is not available to the first\t respondent.
\nThe  next submission of the learned counsel is that  in\t the
\nplace of first respondent, Chauhan had come to be  appointed
\nas Chairman, therefore, he ought to have been impleaded as a
\nparty.\t The effect of non-impleading Chauhan will be  fatal
\nto  the\t writ petition as laid down in State of\t Kerala\t and
\nanother v. Miss Rafia Rahim<\/a> etc., A.I.R. 1978 (Kerala),\t 176
\nas  well as Padmraj Samarendra and others v. State of  Bihar
\nand Anr<\/a>., A.I.R. 1979 (Patna) 266.  In both the cases  where
\nthe petitioners were challenging the selection, it was\theld
\nthe  selectees were necessary parties as they were  affected
\nby  the decisions of the court.\t Therefore, if they are\t not
\nimpleaded  no relief could be granted in favour of the\twrit
\npetitioners  even  though on merits  the  petitioners  could
\nsucceed.\n<\/p>\n
     Even otherwise, today, the principle of natural justice
\nhas assumed great importance.  It by reason of the  decision
\nof  the\t court Chauhan is ultimately affected, and  if\tthat
\ndecision is rendered without hearing
\n\t\t\t\t\t\t  942<\/span>
\nChauhan,  it  would  amount  to a  clear  violation  of\t the
\nprinciple of natural justice.  An order passed in  violation
\nof  that  salutory provision of natural justice would  be  a
\nnullity.   As a matter of fact, if Supreme Court  passes  an
\norder  that would amount to nullity is what this  court\t has
\nlaid  down in.\tIn A.R. Antulay v. R.S. Nayak & Anr<\/a>,  [1988]
\nSupp  1 SCR 1 @ 59.  Therefore, for the failure\t to  implead
\nChauhan\t the writ petition was liable to be dismissed.\t The
\ncontrary  view taken by the High Court that though he  is  a
\nproper party but not a necessary party, or that Chauhan came
\nto  be appointed “until further orders” and,  therefore,  he
\nneed not be impleaded, is wrong.\n<\/p>\n
     Mr. Kapil Sibal took us through the background in which
\nthe  impungned\tordinance and th Act came to be\t passed.  He
\nwould submit that it had a great bearing on the legal issues
\ninvolved in this case.\tThe State of Himachal Pradesh  tried
\nits  level  best  to get rid of the  Service  of  the  first
\nrespondent.   At first it issued a notification whereby\t the
\nright to continue as Chairman was interfered with.  That was
\nquestioned  in W.P. 123\/90.  Finding the judgment was  going
\nagainst\t the  State, the State withdrew\t the  notifications.
\nThereafter,  the State came forward with charge\t memo  under
\nsuspension order.  They are pending in writ proceedings\t and
\nan  interim  stay of suspension is in  operation.   At\tthis
\nstage,\tthe  ordinance is brought in because  the  executive
\nmethod\tfailed\tto  bring  about  the  termination  of\t his
\nservices.   At the relevant date of the ordinance no  person
\nother than the first respondent was affected.  In fact,\t the
\nState  while  writing for sanction for\tissue  of  ordinance
\nspecifically mentions about this respondent by name.  But at
\nthe same time it would conceal from Govt.  of India the fact
\nof the matter being sub judice.\t Though the Govt.  of  India
\nwould request exploration of the possibility of amending the
\nrules  under  Section  78<\/a> of the  Electricity  (Supply)\t Act
\nbecause the rule could not have restrospective operation and
\nthe  first  respondent\tcould  not be  reached\tby  such  an
\namendmentof the rules resort is had to the ordinance  making
\npower under Article 213<\/a> of the Constitution.\n<\/p>\n
     Section 3(1)<\/a> was aimed at only against this respondent.
\nThis is undeniable.  While the ordinance was under challenge
\nin writ petition before the High Court the amending Act came
\nto  be passed.\tThis back-ground has to be kept in  mind  to
\nappreciate   the   submissions\tmade  on  behalf   of\tthis
\nrespondent.\n<\/p>\n
\t\t\t\t\t\t  943<\/span><\/p>\n
     Under  the\t Electricity  (Supply) Act<\/a>,  there  are\t two
\nprovisions dealing with the appointments.  One Section 5<\/a> and
\nthe  other  is\tSection 8<\/a>.  The former\tSection\t deals\twith
\ninitial\t  appointment\twhilst\t Section   8<\/a>   deals\twith
\nreappointment.\n<\/p>\n
     What   the\t amending  Act\tdoes  by   prescribing\t the
\ndisqualification  under\t Section 5(6)<\/a> is to  prevent  future
\nappointments  after  attaining the age of  65  years.\tBut,
\neven,  here,  there is no automatic cessation of  office  on
\nattaining  the age of 65 years.\t While there is a power\t for
\nremoval\t when a Member or Chairman of the Electricity  Board
\nbecomes\t a Member of Parliament, he could be  removed  under
\nSection\t 10<\/a>,  there  is no such power in the  event  of\t the
\nMember\tor Chairman incurring the disqualification  of\tage,
\nnamely,\t the  attainment  of  65  years.   Hence  by  merely
\namending  the  law,  it\t cannot\t be  urged  that  the  first
\nrespondent  having  attained the age of 65 ceases  to  be  a
\nMember\tor  Chairman of the Electricity\t Board.\t  Therefore,
\nSection 5(6)<\/a> will not help the appellant.\n<\/p>\n
     Coming  to\t Section 8<\/a> that\t deals\twith  reappointment.
\nSuch a reappointment is governed by the terms and conditions
\nas prescribed.\tThe word “prescribed” means prescribed under
\nthe rules.  The rule making power is contained under Section
\n78(2)<\/a>  (a).   Rule  4  as  originally  stood  governed\t the
\nreappointment  stating it could be under such conditions  as
\nthe  State  Govt. may from time to time, by  order,  direct.
\nThere  is  a proposal to amend the rule.  Even\tunder  those
\nrules namely Rules 3 and 4, the reappointment is thought of.
\nWhile  care has been taken in this regard no  amendment\t has
\nbeen effected to Section 8<\/a> prescribing the age limit of\t 65.
\nAs a matter of fact, for a tenure appointment under  Section
\n8<\/a>,  there never be a prescription of age of  superannuation.
\nSuch an appointment is beyond the pale of Section 5<\/a>.   Thus,
\nit is submitted Sections 5<\/a>,8<\/a>,10<\/a>,78<\/a> (2) (a) provide a  scheme
\nmore  so  when Section 10<\/a> does not prescribe the  age  as  a
\ndisqualification.\n<\/p>\n
     In\t no  statute  an upper age limit  could\t ever  be  a
\ndisqualification, of course, the minimum age of\t recruitment
\ncan  be prescribed.  But no an upper age limit for a  tenure
\nappointment.   It is common knowledge that only\t experienced
\npersons\t even  after retirement are appointed  as  Chairman,
\nhaving regard to the vast experience and wide knowledge.\n<\/p>\n
     On\t the factual aspect, it is submitted by the  learned
\ncounsel, though the notifications dated 12.5.86 and 12.6.89,
\nuse the word “extension” it is
\n\t\t\t\t\t\t  944<\/span>
\nnothing\t but reappointment. As a matter of fact the  counter
\naffidavit  of  the State makes it clear that  the  order  of
\nreappointment  came to be passed under Section 5<\/a>  read\twith
\nSection\t 8<\/a> rule 4.  The statement of `Objects  and  Reasons’
\nalso makes a reference to Section 8<\/a>.  Thus, both legally and
\nfactually Section 5(6)<\/a> cannot help the State.\n<\/p>\n
     Much cannot be made of the words “or begin” brought  in
\nby  way of amendment  of Section 5(6)<\/a>.\tThis  only  connotes
\nthe  attainment of age of 65 subsequent to the\tappointment.
\nWhen  the  Constitution\t uses similar  language\t both  under
\nArticles  102 and 191, it made it clear that under both\t the
\nArticles  101  as  well\t as 190,  the  seat  falling  vacant
\nretrospectively on the incurring of such a  disqualification
\nthere  is no automatic cessation provided under Section\t 10<\/a>.
\nThus  the words “has attained” occurring under Section\t5(6)<\/a>
\nassumes great importance because there is no provision under
\nSection\t 10<\/a>   prescribing age of  disqualification  and\t the
\nconsequent removal.  Even under Section 5(6)<\/a>, it supposes  a
\nperson\tbeing appointed before the age of 65  and  attaining
\nthe  age  of 65.  Such a contingency does  not\tarise  here.
\nTherefore,  it is submitted that Sections 5(6)<\/a> and  3(1)<\/a>  of
\nthe  amending  Act should be rad together.  As\tregards\t the
\namending  Act,\tit  cannot be denied that  on  the  date  of
\nordinance it applied only to the respondent and nobody else.
\nWhile Section 5(6)<\/a> takes care of future appointment  Section
\n3(1)<\/a>  deals  with reappointment.  On the date  of  ordinance
\nSection\t 5(6)<\/a>  would  apply  to\t nobody\t else  because\tthis
\nrespondent  alone  was holding a  tenure  appointment.\t The
\nlegislation was brought about only with a view to unseat the
\nrespondent.   There  can  be a\tsingle\tpersons\t legislation
\nprovided  it is in furtherance of legislative objects.\t The
\nburden is on the State to prove the reason or the basis\t for
\nthis legislation.  Such a burden had not been discharged.\n<\/p>\n
     Certainly,\t  the  reappointment  stand   apart.\tThey
\nconstitute  a  class  by  themselves.\tA  person  initially
\nappointed cannot be compared with a reappointee.  The former
\nfalling\t under\tSection 5(6)<\/a> and the  latter  falling  under
\nSection\t 8<\/a>.  If the respondent had been appointed after\t the
\nage  of\t 65, he forms a class by  himself.   Therefore,\t the
\nState  will  have  to be sore what  exactly  is\t the  public
\npurpose served or a social or economic obligation.  Further,
\nas a matter of fact, this was the test applied in all single
\nperson’s  legislation.\t In all such cases whenever  it\t was
\nupheld\teither it was on the ground of mismanagement of\t the
\ninstitution or a mill, or because it was in furtherance of a
\npublic purpose or a social or economic obligation.\n<\/p>\n
\t\t\t\t\t\t  945<\/span><\/p>\n
In fact, in Ram Prasad Narayan Sahi and another v. The State
\nBihar\tand  Others<\/a>,  [1953]  S.C.R.  1129  the\t  mill\t was
\nmismanaged.   In Lalit Narayan Mishra Institute of  Economic
\nDevelopment  and Social Change, Patna etc v. State of  Bihar
\nand  Others etc., [1988] 3 S.C.R 311, the institute was\t not
\nonly  mismanaged, of course, the policy was  to\t nationalise
\nall  the  institutions.\t  Similarly, in\t Shri  Ram  Krishana
\nDalmia\tv.  Shri Justice S. R. Tendolkar  &  Others<\/a>,  [1959]
\nS.C.R. 279, and in Lachhman Das on behalf of Firm Tilak\t Ram
\nRam Bux v. State of Punjab and Others<\/a>, [1963] 2 S.C.R.\t353,
\nthe  same  test was applied.  Likewise in  Swastik.   Rubber
\nProducts  Ltd.\tetc. etc. v. Municipal\tCorporation  of\t the
\nCity of Poona & Anr., [1982] 1 S.C.R. 729, it was a case  of
\nmismanagement  of industrial project.  The case of  Tilkayat
\nShri  Govindlalji  Maharaj  v. The State  of  Rajasthan\t and
\nOthers<\/a>, [1964]1 S.C.R. 561, Nathdwara Temple where there was
\nmisapprobation\tof  jewellery,\tlikewise  in  the  case\t  of
\nJagannatha Temple.  Thus, it is clear but for  mismanagement
\nor  subserving\ta  public  cause or  a\tsocial\tor  economic
\nobligation, such pieces of single person’s legislation would
\nnot have been upheld.\n<\/p>\n
     Certainly,\t there\tmay  be\t a  legislation\t in  general
\napplication  and it may apply to an individual; but that  is
\nnot the case here.  On the date of the coming into force  of
\nthe Act this responent alone was affected.  The amending Act
\nitself\tmakes a discrimination without any justification  or
\nrationale.   If the respondent is treated alongwith  others,
\nit would amount to treating unequals as equals.\n<\/p>\n
     Thus,  it is submitted two principles will have  to  be
\napplied\t (1)  the  respondent having  been  appointed  under
\nSection 8<\/a> constitutes a class; and (2) if the appointment of
\nthe  respondent is sought to be brought out under Section  5<\/a>
\nit will bring a discrimination treating unequals as  equals.
\nTherefore,   the  law  will  have  to  be  struck  down\t  as
\ndiscriminatory\tand not that this respondent is\t attributing
\nmalafides to the legislature.\n<\/p>\n
     Of course, in The Atlas Cycle Industries Ltd.   Sonepat
\nv.  Their Workmen<\/a>, [1962] 3 S.C.R. 89 case, it applied\tonly
\nto one individual.  But that case is distinguishable for  of
\ntwo  reasons – (a) the benefit of extension was\t granted  to
\nthe  individual\t and it was not an adverse order and  (b)  a
\nnumber\tof industrial adjudications were pending before\t the
\nauthority whose permission was extended.\n<\/p>\n
     As\t regards impleading Chauhan, it is  submitted  where
\nthis respon-\n<\/p>\n
\t\t\t\t\t\t  946<\/span><\/p>\n
dent would choose to question the vires of the ordinance  in
\nthe Act, there was no need to implead Chauhan at all.  As  a
\nmatter of fact, this respondent could not have asked for any
\nrelief\tagainst Chauhan.   Even otherwise, for an  effective
\nadjudication of the points in issue there is no need for the
\npresence of Chauhan.  In support of the submission  reliance
\nis  placed on A. Janaradhana v. Union of India\tand  Others<\/a>.
\n[1983] 3 S.C.C. 601 @ 626.\n<\/p>\n
     Beside,  the  order  of appointment of  Chauhan  it  is
\nstated\t“consequent until further orders.”   Therefore,\t the
\ncourt could grant relief even in his absence.  The cases the
\nside has cited can have no application because they  related
\nto  selection under one scheme only on the  displacement  of
\nselectees.   The writ petitioners could be  granted  relief.
\nIn  fine it is submitted that where substantial justice\t has
\nbeen  done by allowing the first respondent in office  until
\nexpiry of his term in July, 1992 by exercise of power  under
\nArticle\t 136<\/a> this court will not interfere as laid  down  in
\nPritam Singh v. The State<\/a>, [1950] 1 S.C.R. 453.\n<\/p>\n
     Mr.  Shanti Bhushan in his elaborate reply would  state
\nthat  Section 5(2)<\/a> is the only source of appointment –\tboth
\ninitial as well as reappointment.  Section 8<\/a> only deals with
\ntenure.\t  Section  3(1)<\/a> of the amending Act  corresponds  to
\nArticles  101(3)  or 190(3). Therefore, it brings  about  an
\nautomatic cessation of office.\n<\/p>\n
     It\t is incorrect to contend that for a tenure post,  it
\nis not proper to prescribe an age limit.  Instances are\t not
\nwanting where statutory provisions have been made to such an
\neffect.\t   For instance, Article 224<\/a> of the Constitution  in
\nrelation  to  the Addl.\t Judge.\t Likewise Section 8<\/a>  of\t the
\nAdministrative\tTribunals Act.\tDisqualification on  account
\nof age, therefore, could be prescribed statutorily.   Having
\nregard to the words “or being” occurring under Section 5(6)<\/a>,
\nthe  Section  alone  would be enough to\t deprive  the  first
\nrespondent of his office after attaining the age of 65.\t  In
\nthis regard the learned counsel cites American Jurisprudence
\n(2nd Ed) vol 63, para 42.\n<\/p>\n
     The  purpose  of Section 3<\/a> is two-fold-one, by  way  of
\nabundant caution it provides for cessation of office, though
\nSection\t 5(6)<\/a>  itself would be enough.\tSecondly,  it  takes
\naway  the right to emoluments after attaining the age of  65
\nand   substituting  by\tcompensation, not withstanding\t the
\ncontract  to  the  contrary.  Section 10(1)(d)<\/a>\tis  only  an
\nenabling  provision.  That does not, in any  manner,  effect
\nthe operation of Section 5(6)<\/a>.\tIt is incorrect
\n\t\t\t\t\t\t  947<\/span>
\nto submit that this is a single person’s legislation.  It is
\nof  general application and it so happened on  the  relevant
\ndate that the first respondent came to be affected.  Lastly,
\nit is submitted on the basis of B. Prabhakar Rao and  Others
\nv.  State of Andhra Pradesh and Others<\/a>, [1985] Supp.  S.C.C.
\n432, that there is no need to dislodge Chauhan from  office,
\nafter  all,  he\t had been continuing so\t long.\t He  may  be
\nallowed for the remaining period of the tenure of the  first
\nrespondent.   The  court itself could fix  the\tcompensation
\ninstead of even relegating matter to the State.\n<\/p>\n
     Having  regard  to the above arguments,  the  following
\npoints arise for our determination :-\n<\/p>\n
\t (i)  The power of appointment under Section  5<\/a>\t and
\n\t the  scope of Section 8<\/a> and 10<\/a> of  the\t Electricity
\n\t (Supply) Act, 1948.\n<\/p>\n
\t (ii)  The effect of amendment under Section 5(6)<\/a> of
\n\t the said Act.\n<\/p>\n
\t (iii)\t The  scope  of\t Section  3  of\t Electricity
\n\t (Supply) (H.P. Amendment) Act of 1990.\t Whether  it
\n\t is violative as single person’s legislation.\n<\/p>\n
\t (iv)  Whether the failure to implead Chauhan  would
\n\t be fatal to the writ petition.\n<\/p>\n
     We\t will  now deal with these points.   In\t the  normal
\ncourse of events the first respondent would have  continued,
\nby   virtue  of\t his  extension,  upto\t25.7.92.    However,
\nconsequent to the Assembly  Elections held in the  beginning
\nof  1990, there was a change of the Government.\t The  fourth
\nrespondent  became  the Chief Minister.\t From then  on,\t the
\nfirst  respondent met with an avalanche of  misfortune.\t  He
\nreceived  successive  blows.  Hence he was obliged  to\twage
\nlegal  battles.\t  That is why  the learned counsel  for\t the
\nfirst  respondent  would urge that all these  attempts\twere
\nonly with the sole aim of removing the first respondent from
\noffice. the Executive having failed in its attempt  resorted
\nto  legislative process.  It is unethical to do so.  We\t are
\nafraid,\t we  cannot decide the case on ethics.\t We  are  to
\njudge the law and the correctness of the legal provisions as
\nwe  see\t then.\tTherefore, we are to move from\tthe  ethical
\nplane to the legal plane.\n<\/p>\n
     In\t this case the State wants to introduce the  age  of
\nsuperannuation
\n\t\t\t\t\t\t  948<\/span>
\nprescribing  an\t upper age limit of 65 for the\tMembers\t and
\nChairman  of  the Electricity Board.  As a matter  of  fact,
\nhitherto,  no  such  limit  was\t found\tin  the\t Electricity
\n(Supply)  Act<\/a>, 1948 (hereinafter referred to as\t the  Supply
\nAct<\/a>).\tBefore\tthe  introduction  of  the  amendment,\t the
\nappellant State of Himachal Pradesh wrote on 22.6.90 to\t the
\nGovernment of India, Ministry of Home Affairs for  procuring
\nprior instructions from the President of India, as envisaged
\nin  clause  (1)\t of Article 213<\/a> of  the\t Constitution.\t The
\nsubject matter of the proposed ordinance falls under item 38
\nof  List  III  (List  III of the  Seventh  Schedule  of\t the
\nConstitution  of  India).  Item 38 deals  with\telectricity.
\nWhere, therefore, it was proposed to amend Section 5 of\t the
\nSupply\tAct (Central Act 54\/48), in its application  to\t the
\nState  of  Himachal Pradesh it had to be  reserved  for\t the
\nconsideration  of the President under Article 254(2)<\/a> of\t the
\nConstitution.  This was because if a Bill containing similar
\nprovision after having been passed by the State\t Legislature
\nrequired   to  be so reserved for the consideration  of\t the
\nPresident  of India.  However, it is important to note\tthat
\nin  this  letter it was categorically stated  that  in\tmost
\nadministrative\tsystems of the world an outer age  limit  is
\nprovided.   Such  a  provision is found\t with  reference  to
\njudicial  officers  and\t civil posts and  is  entrenched  in
\nadministrative and constitutional systems.  Having regard to
\nthe  desirability of providing for a terminal point of\ttime
\nbeyond\twhich  a  Chairman  and the  Members  of  the  State
\nElectricity Board must cease to hold office by operation  of
\nthe  statute, it was proposed to prescribe the age limit  at
\n65 for retirement of the Chairman\/Members of the Board.\n<\/p>\n
     The same point is reiterated as seen from the statement
\nof  `Objects and Reasons’ for the Bill No. 6 of 1990,  which
\nlater  on  became  Act 10 of 1990.  We will  now  quote\t the
\nrelevant  portion  of  the said\t statement  of\tObjects\t and
\nReasons.\n<\/p>\n
\t “Section  8<\/a> of the Electricity (Supply)  Act,\t1948
\n\t (Act No. 54 of 1948) provides that the Chairman and
\n\t other Members of the State Electricity Board  shall
\n\t hold  office for such period and shall be  eligible
\n\t for reappointment under such conditions, as may  be
\n\t prescribed.   In other words no provision has\tbeen
\n\t made in respect of maximum age or period upto which
\n\t a  person  may serve as Chairman or Member  of\t the
\n\t Board.\t  Indeed, the provision after mandatory\t age
\n\t of  superannuation or specification of\t age  beyond
\n\t which an incumbent must cease to hold
\n\t\t\t\t\t\t  949<\/span>
\n\t office\t  is   vital   and   essential.\t   In\tmost
\n\t administrative\t systems of the world, an outer\t age
\n\t limit is provided.  In our own country the  concept
\n\t of  the age of superannuation, in other  words\t the
\n\t concept  of  the terminal point at which  a  person
\n\t should\t cease\tto hold judicial offices  and  civil
\n\t posts,\t are  entrenched in our\t administrative\t and
\n\t constitutional\t systems.   Public  policy  requires
\n\t that  the  concept  of\t superannuation\t should\t  be
\n\t applied  to  civil  posts  and\t offices.   It\twas,
\n\t therefore, decided to prescribe the age of 65 years
\n\t for  retirement of the Members of  the\t Electricity
\n\t Board, as the retirement age of High Court  Judges,
\n\t Members of the Administrative Tribunal, Members  of
\n\t Public\t  Service   Commission\t and   other\thigh
\n\t functionaries\t has   also   been   fixed.\tThis
\n\t necessitated  the  amendments\tin  the\t Electricity
\n\t (Supply) Act<\/a>, 1948 in its application to the  State
\n\t of Himachal Pradesh”.\n<\/p>\n
     Therefore, what does the State desire to do?  It  wants
\nto embark on a policy of retirement of the  Chairman\/Members
\nof  the\t Electricity  Board after attaining the\t age  of  65
\nyears.\tThis Court is least concerned with the wisdom of the
\npolicy.\n<\/p>\n
     Certainly,\t no one could quarrel with the\tintroduction
\nof  that  measure  as of policy.  In  fact  this  Court\t has
\nrepeatedly  recognised\tsuch a right of the  State.   It  is
\nenough\tif we quote K.Nagaraj & Anr. etc. etc. v.  State  of
\nAndhra Pradesh & Anr. etc. A.I.R. 1985 S.C. 551.  In para 7,
\nthe court had occasion to observe thus :-
\n\t “Barring a few services in a few parts of the world
\n\t as,  for example, the American Supreme\t Court,\t the
\n\t terms\tand  conditions\t of  every  public   service
\n\t provide  for  an age of  retirement.\tIndeed,\t the
\n\t proposition  that  there  ought to be\t an  age  of
\n\t retirement in public services is widely accepted as
\n\t reasonable   and  rational.   The  fact  that\t the
\n\t stipulation as to the age of retirement is a common
\n\t feature  of all of our public services\t establishes
\n\t its  necessity,  no less than\tits  reasonableness.
\n\t Public\t interest demands that there ought to be  an
\n\t age of retirement in public services.\tThe point of
\n\t the  peak  level of efficiency is bound  to  differ
\n\t from  individual  to  individual  but\tthe  age  of
\n\t retirement cannot obviously differ from  individual
\n\t to individual
\n\t\t\t\t\t\t       950<\/span>
\n\t for  that  reason.   A\t common\t scheme\t of  general
\n\t application governing superannuation has therefore,
\n\t to be evolved in the light of experience  regarding
\n\t performance  levels  of  employees,  the  need\t  to
\n\t provide  employment  opportunities to\tthe  younger
\n\t sections  of  society\tand  the  need\tto  open  up
\n\t promotional opportunities to employees at the lower
\n\t levels\t early\tin their  career.   Inevitably,\t the
\n\t public\t  administrator\t  has\tto    counterbalance
\n\t conflicting  claims  while determining the  age  of
\n\t superannuation.   On the one had,  public  services
\n\t cannot\t be  deprived of the benefit of\t the  mature
\n\t experience of senior employees; on the other  hand,
\n\t a  sense  of frustration and stagnation  cannot  be
\n\t allowed  to  generate in the minds  of\t the  junior
\n\t members of the services and the younger section  of
\n\t the  society.\tThe balancing of  these\t conflicting
\n\t claims\t  of  the  different  segments\tof   society
\n\t involves  minute questions of policy which must, as
\n\t far  as  possible, be left to the judgment  of\t the
\n\t executive   and  the  legislature.   These   claims
\n\t involve   considerations  of  varying\tvigour\t and
\n\t applicability.\t    Often,   the   Court   has\t  no
\n\t satisfactory  and effective means to  decide  which
\n\t alternative, out of the many competing ones, is  th
\n\t best in the circumstances, of a given case.  We  do
\n\t not suggest hat every question of policy.  Were  it
\n\t so  this  Court would have  declined  to  entertain
\n\t pricing  disputes covering as wide a range as\tcase
\n\t to mustard-oil.  If the age of retirement is  fixed
\n\t at  an\t unreasonably  low level so as\tto  make  it
\n\t arbitrary and irrational, the court’s\tinterference
\n\t would be called for, though not for fixing the\t age
\n\t of   retirement   but\tfor   mandating\t  a   closer
\n\t consideration\tof  the matter.\t “Where\t an  act  is
\n\t arbitrary, it is implicit in it that it is  unequal
\n\t both\t according    to   political\tlogic\t and
\n\t constitutional\t law and is therefore, violative  of
\n\t Article  14;<\/a> E.P. Royappa v. State of\tTamil  Nadu<\/a>,
\n\t [1974]\t 2  SCR 348-AIR 1974 SC\t 555″.\t But,  while
\n\t resolving  the validity of policy issues  like\t the
\n\t age  of  retirement, it is not proper\tto  put\t the
\n\t conflicting  claims in a sensitive  judicial  scale
\n\t and  decide the issue by finding out which  way  th
\n\t balance  tilts.   That\t is an\texercise  which\t the
\n\t administrator\t and   the   legislature   have\t  to
\n\t undertake.”\n<\/p>\n
     For adumbrating this policy a legislation is enacted by
\nthe  State.   It is not for this court to find\tout  whether
\nthere  was any need for such a legislation.  Of course,\t for
\nlack of legislative competence or for violation
\n\t\t\t\t\t\t  951<\/span>
\nof the right to equality under Article 14<\/a> etc. the  validity
\nof the legislation may be scrutinised.\tBut, certainly, that
\nis  far from saying the court could examine the\t legislation
\nfrom  the  point  of view that it came\tto  be\tpassed\twith
\nmalafide intention.  By long established practice, which has
\nreceived  approbation through authorities of this Court,  it
\nhas  always  refrained from attributing\t malafides   to\t the
\nlegislature.  In fact, such a thing is unknown to law.\tHere
\nagain, we can usefully refer to the case K. Nagaraj & Others
\netc.  etc.  v. State of Andhra Pradesh and  Anr.  etc.,\t AIR
\n1985, 551.  In para 36 it is stated as:-\n<\/p>\n
\t “…. The legislature, as a body, cannot be accused
\n\t of  having passed a law for an extraneous  purpose.
\n\t Its  reasons for passing a law are those that\t are
\n\t stated in the Objects and Reasons and if, none\t are
\n\t so stated, as appear from the provisions enacted by
\n\t it.   Even assuming that the executive, in a  given
\n\t case,\t has   an  ulterior  motive  in\t  moving   a
\n\t legislation, that motive cannot render the  passing
\n\t of  the  law malafide.\t This kind  of\t`transferred
\n\t malice’ is unknown in the field of legislation”.
\n     It\t is  in this background, therefore,  we\t propose  to
\ndetermine the above points.\n<\/p>\n
     1.\t The Power of Appointment under Section 5<\/a> and  Scope
\nof Sections 8<\/a> and 10<\/a> of the Electricity (Supply) Act, 1948.\n<\/p>\n
     The   Electricity\t(Supply)  Act<\/a>,\t 1948\t(hereinafter
\nreferred to as the Act is to provide for rationalisation  of
\nthe  production and supply of electricity and generally\t for
\ntaking measures conducive to electrical department.  Chapter
\nIII of the said Act deals with the State Electricity Boards,
\nGenerating   Companies,\t  State\t  Electricity\tConsultative
\nCouncils  and Local Advisory Committees.  Section 5<\/a> read  as
\nunder :-\n<\/p>\n
\t “5  Constitution  and\tComposition  of\t the   State
\n\t Electricity
\n\t Boards-(1)  The State Government shall, as soon  as
\n\t may  be after the issue of notification under\tsub-
\n\t section   (4)\t of   Section\t1<\/a>,   constitute\t  by
\n\t notification  in  the\tOfficial  Gazette  a   State
\n\t Electricity  Board  under  such name  as  shall  be
\n\t specified in the notification.\n<\/p>\n
\t (2) The Board shall consist of not less than  three
\n\t and not more
\n\t\t\t\t\t\t    952<\/span>
\n\t than\tseven\tmembers\t appointed  by\t the   State
\n\t Government.\n<\/p>\n
\t (3) … Omitted by Act 57 of 1949, S.4.\n<\/p>\n
\t (4)   Of the members –\n<\/p>\n
\t     (a) One shall be a person who has experience of
\n\t     and  has shown capacity in, commercial  matters
\n\t     and administration;\n<\/p><\/blockquote>\n
\t     (b)  one shall be an electrical  engineer\twith
\n\t     wide experience; and\n<\/p><\/blockquote>\n
\t     (c) one shall be a person who has experience of
\n\t     accounting\t and financial matters in  a  public
\n\t     utility undertaking, preferably and electricity
\n\t     supply undertaking.\n<\/p><\/blockquote>\n
\t (5)  One  of  the members  possessing\tany  of\t the
\n\t qualifications\t specified in sub-section (4)  shall
\n\t be  appointed\tby the State Government\t to  be\t the
\n\t Chairman of the Board.\n<\/p>\n
\t (6)  A\t person\t shall be  disqualified\t from  being
\n\t appointed or being am member of the Board if he  is
\n\t a   member   of  (Parliament)\tor  of\t any   State
\n\t Legislature or any local authority.\n<\/p>\n
\t (7)   No act done by the Board shall be  called  in
\n\t question on the ground only of the existence of any
\n\t vacancy  in, or any defect in the constitution\t of,
\n\t the Board.”\n<\/p>\n
     Thus,  it\twill  be seen that State  Government  is  to
\nconstitute,  by notification, the State\t Electricity  Board.
\nThe minimum member of the Board shall be 3 while the maximum
\nshall  be 7.  The Chairman could be any one of\tthe  members
\nwho  possesses such qualifications as prescribed under\tSub-
\nsection(4).  Sub-section(6) talks of disqualification –\t (1)
\nmember\tbeing  appointed and (2) or being a  member  of\t the
\nBoard  if  he  is a member of Parliament  or  of  any  State
\nLegislature or any local authority.\n<\/p>\n
     Prior  to the amendment in 1960, this  disqualification
\nmust have been incurred within the 12 months last preceding.
\nWhat   is   important  for  our\t purpose  is  there   is   a
\ndisqualification  for  appointment in future  when  it\tsays
\n“shall be disqualified from being appointed”.  Equally,\t “or
\nbeing” means if
\n\t\t\t\t\t\t  953<\/span>
\nsuch  a disqualification is incurred after  the\t appointment
\nduring the tenure of membership of the post.  Therefore, the
\nwords “or being” have great significance.\n<\/p>\n
     We will come to the effect of amendment of Section 5(6)<\/a>
\nlater after dealing with the relevant sections of this\tAct.
\nSection 8<\/a> reads as follow :-\n<\/p>\n
\t “Term\tof office and conditions for  re-appointment
\n\t of  members of the Board – The Chairman  and  other
\n\t members  of  the Board shall hold office  for\tsuch
\n\t period,  and  shall be eligible  for  reappointment
\n\t under such conditions, as may be prescribed.”
\n     A Careful reading of the Section will clearly  disclose
\nthe  section merely talks of term of office  and  conditions
\nfor  reappointment.  Those conditions may be  a\t prescribed.
\nThe  word `prescribed’ has come to be defined under  Section
\n2(9)<\/a> of the said Act.  “Prescribed” means prescribed made by
\nrules  under  this  Act.  Nowhere in this  Section,  in\t our
\nconsidered  view,  an additional power\tfor  appointment  is
\nconferred.   At\t best it could be said that it\tmerely\tlays
\ndown  the eligibility for reappointment.  As  stated  above,
\nthat eligibility must be as per conditions prescribed  under
\nthe  rules.  As a matter of fact, when it says\t“shall\thold
\nthe  office  for  such\tperiod”\t it  means  the\t period\t  as
\nprescribed under the rules.  Beyond this, we are  unable  to
\npersuade  ourselves to come to the conclusion that there  is
\nany  separate  power  for reappointment.   It  is  not\teven
\nnecessary to provide for such a separate power.\t The  reason
\nwhy  we\t say  so is Sections 14<\/a> and 16<\/a>\tof  Central  General
\nClauses Act provide for such a power.  Section 16<\/a> deals with
\nthe  power  of\tappointment carrying with it  the  power  of
\ndismissal,  while  Section  14<\/a> states  any  power  conferred
\nunless a different intention appears could be exercised from
\ntime  to  time\tas  occasion  requires.\t  Where,  therefore,
\nSection\t 5<\/a> provides for a power to appoint, certainly,\tthat
\npower  could  be  exercised from time to  time\tas  occasion
\nrequires.   Thus  one  need  not  search.  for\ta   separate
\nprovision  in  this  regard.   We may  also  note  that\t the
\nprescriptions  in relation to the term was  contained  under
\nElectricity (Supply)  HP Amendment) Act, 1990.\tUnder rule 4
\nof the said Rule, it is stated thus :-\n<\/p>\n
\t “4.   Term  of Office – (1) The Chairman  and other
\n\t Members shall be appointed by the State  Government
\n\t and  hold office for such period and shall, on\t the
\n\t expiration of their terms office,
\n\t\t\t\t\t\t  954<\/span>
\n\t be eligible for reappointment under such conditions
\n\t as  the State Government may from time to  time  by
\n\t order direct.\t(2) No whole-time Member so long  as
\n\t he continues as Member shall accept any  assignment
\n\t other\tthan   that of the Board without  the  prior
\n\t permission of the Government.\n<\/p>\n
     Even  there no further prescription is found  excepting
\nas  laid down under the conditions stipulated by  the  State
\nGovernment from time to time.\n<\/p>\n
     Then  we come to Section 10<\/a>.  That Section\t deals\twith
\nremoval or suspension of members as follows :-
\n\t “Removal  or suspension of members.  (1) The  State
\n\t Government may suspend from office for such  period
\n\t as  it thinks fit or remove from office any  member
\n\t of the Board who-\n<\/p>\n
\t (a)  is found to be a lunatic or becomes of unsound
\n\t mind; or\n<\/p>\n
\t (b) is adjudged insolvent; or\n<\/p>\n
\t (c) fails to comply with the provisions of  Section
\n\t 9<\/a>; or\n<\/p>\n
\t (d)   become  or  seeks  to  become  a\t member\t  of
\n\t Parliament  or any State Legislature or  any  local
\n\t authority; or\n<\/p>\n
\t (e)  in the opinion of the State Government-\n<\/p>\n
\t (i) has refused to act; or\n<\/p>\n
\t (ii)  has become incapable of acting ; or\n<\/p>\n
\t (iii)\thas so abused his position as to render\t his
\n\t continuance   on  the\tBoard  detrimental  to\t the
\n\t interests of the general public’ or\n<\/p>\n
\t (iv)\tis otherwise unfit to continue as a  member;
\n\t or\n<\/p>\n
\t (f)  is convicted of an offence turpitude.
\n\t (2)   The State Government may suspend\t any  member
\n\t pending an inquiry against him.\n<\/p>\n
\t\t\t\t\t\t       955<\/span><\/p>\n
\t (3)  No order of removed shall be made\t under\tthis
\n\t section unless the member concerned has been  given
\n\t an  opportunity  to submit his explanation  to\t the
\n\t State\tGovernment, and when such order\t is  passed,
\n\t the seat of the member removed shall become  vacant
\n\t and another member may be appointed under Section 5<\/a>
\n\t to fill up the vacancy.\n<\/p>\n
\t (4)  A\t member who has been removed  shall  not  be
\n\t eligible  for\treappointment as member\t or  in\t any
\n\t other capacity to the Board.\n<\/p>\n
\t (5) If the Board fails to carry out its  functions,
\n\t or refuses or fails to follow the directions issued
\n\t by  the  State\t Government under  this\t Act,  State
\n\t Government may remove the Chairman and the  members
\n\t of the Board and appoint a Chairman and members  in
\n\t their places.”\n<\/p>\n
    In\tour view this Section confers an enabling  power  on
\nthe  State  Government\tto take punitive  action  against  a
\nmember\tof the Board who falls under any one of the  clauses\n<\/p>\n
(a)  to (f). The fact that it is punitive is  clear  because
\nSub-section (3) contemplates giving an opportunity to  offer
\nan explanation and thereafter removing him. Once so removed,
\nhe is ineligible for reappointment either as a Member or any
\nother capacity in the Board.\n<\/p>\n
    As to why after amending Section 5(6)<\/a> the State has\t not
\ncorrespondingly amended Section 10<\/a> so as to include cases of
\nMembers or Chairman attaining the age of 65 we will consider
\nwhile dealing with the scope of amendment to Section 5(6)<\/a>.
\n    The next Section that has to be looked at is Section 78<\/a>,
\ni.e. the rule making section. Sub-section (1) of Section  78<\/a>
\nas is usual talks of the State Government making rule giving
\neffect\tto  the\t Act. Sub-section  (2),\t catalogues  without
\nprejudice  to the generality of this power, as to  what\t all
\nthe rules may provide for. Certainly, it cannot be contended
\nthat the items catalogued in Sub-section (2) are exhaustive.
\nIt  is merely illustrative. Under Sub-section (2) (a) it  is
\nstated that the rules may provide for (i) the powers of\t the
\nChairman  and the term of office of the Chairman  and  other
\nmembers\t of the Board, (ii) the conditions under which\tthey
\nshall\tbe  eligible  for  reappointment  and  (iii)   their
\nremuneration, allowances  and (iv) other
\n\t\t\t\t\t\t       956<\/span>
\nconditions of service.”\n<\/p>\n
    One\t thing\tthat  is striking is  rules  may  themselves
\nprovide\t  for\teligibility  for  reappointment.   In\tthis
\nconnection  it\tmay not be out of context to  refer  to\t the
\nletter\tof the Ministry of Home Affairs asking the State  to
\nexplore the possibility of making rules instead of  amending
\nthe Act. This was at a time when the State Government sought
\nthe  assent of the President. Where, therefore, rules  could
\nprovide\t   for\t the   conditions   for\t  eligibility\t for
\nreappointment, equally it should follow by amending the\t Act
\nsuch  eligibility for reappointment can be provided. In\t the
\nconspectus  of\tthis Section it would be thus  clear  –\t (1)
\nthere  is only one source of power of appointment  contained
\nunder Section 5<\/a>; (2) there is no seperate power in  relation
\nto reappointment under Section 8<\/a>; (3) Section 10<\/a> is only  an
\nenabling  power for taking punitive action against  such  of
\nthose members who fall under clauses (a) to (f) of the\tsaid
\nSection\t and (4) Section 78(2)(a)<\/a> confers a power  upon\t the
\nState Government to frame rules.\n<\/p>\n
    The\t effect of Amendment under Section 5(6)<\/a> of the\tsaid
\nAct
\n    With this we pass on to the amending section of 5(6), by
\nAct  10\t of 1990. The amendment was carried out\t to  section
\n5(6)<\/a> is as follows. This can be brought out succinctly by  a
\ntabulated statement :-\n<\/p>\n
      STATEMENT OF PROVISIONS LIKELY TO BE AFFECTED BY
\n\t\t     THE AMENDMENT BILL\n<\/p>\n
————————————————————\n<\/p>\n
    Section\t  Provisions as exist\t Provisions as\twill
\n\t\t\t\t\t stand\t after\t the
\n\t\t\t\t\t enactment  of\t the
\n\t\t\t\t\t\t Bill
\n     (1)\t\t   (2)\t\t\t  (3)\n<\/p><\/blockquote>\n
————————————————————\n<\/p><\/blockquote>\n
5. Constitution and Compositi-\t  5. Constitution and Compos-
\non of State Electricity Board-\t  ition of State Electricity
\n\t\t\t\t  Board-\n<\/p>\n
(1) The State Govt. shall, as\t  (1) The State Govt.shall,
\n   soon\t as may be after  the\t  as soon as may be after the
\n   issue of the notification\t  issue of the notification
\n   under  sub-section (4) of\t  under sub-section (4)\t of
\n   sec. 1, constitute by noti-\t  sec.\t1,  constitute\tby
\n   fication in the Official\t  notification in the Offic-
\n   Gazette a State Electricit-\t  ial Gazette a State Elect-
\n   y Board under sub name as\t  ricity Board under sub na-
\n   shall  be specified in the\t  me as shall be  specified
\n   notification.\t\t  in the notification.\n<\/p>\n
\t\t\t\t\t\t       957<\/span><\/p>\n
  (2) The Board shall consist\t  (2)  The  Board  shall co-
\n  of not less than three and\t  nsist of not less than th-
\n  not more than seven members\t  ree and not more than sev-
\n  appointed by the State Govt.\t  en members appointed by t-\n<\/p>\n
\t\t\t\t  he State Govt.\n<\/p><\/blockquote>\n
 (3) X X X\t\t\t  (3) X X X\n (4) Of the members-\t\t  (4) Of the members-\n<\/pre>\n
 (a) one shall be person who\t  (a) one shall be person w-
\n has experience of, and has\t  ho has experience of, and
\n shown\tcapacity in commercial\t  has  shown  capacity\tin
\n mat-ters and administration,\t  commercial mat-ters and ad-\n<\/p>\n
\t\t\t\t  ministration,\n<\/p>\n
 (b) one shall be an Electric-\t (b) one shall be an Electri-
\n al Engr. with wide experience,\t  cal Engr. with wide experi-\n<\/p>\n
 and\t\t\t\t  ence, and\n<\/p>\n
 (c) one shall be a person who\t  (c) one shall be a person
\n has experience of accounting\t  who has experience of acco-
\n and financial matters in a p-\t  unting and financial matte-
\n ublic utility undertaking,\t  rs in a public utility und-
\n preferably an electric supply\t  ertaking, preferably an el-
\n undertaking.\t\t\t  ectric supply undertaking.
\n (5) One of the members posses-\t  (5) One of the member Pos-
\n sing of the qualifications sp-\t  sessing of the qualificat-
\n ecified in sub-sec. (4)shall\t  ions specified in sub-sec.
\n be appointed by the State Govt.  (4) shall be appointed by
\n to be the Chair-man of the Boa-  the State Govt. to be the
\n rd.\t\t\t\t  Chairman of the Board.\n<\/p>\n
 (6) A person shall be disquali-  (6) A person shall be dis-
\n fied from being appointed or\t  qualified from being appo-
\n being a member of the Board if\t  inted or being a member of
\n he is a member of Parliament or  the Board he has attained
\n any State Legislature or any l-  the age of 65 years or is
\n ocal  authority.\t\t  a member of Parliament of
\n\t\t\t\t  any  State Legislature  or
\n\t\t\t\t  any local authority.\n<\/p>\n
————————————————————\n<\/p>\n
    The\t effect\t of  amendment\tSection\t 5(6)<\/a>  is  that\t  it
\nintroduces  a new disqualification “if he has  attained\t the
\nage  of\t 65 years”. This disqualification is  not  only\t for
\nbeing\tappointed,   namely,  with   reference\t to   future
\nappointment,   but  even  with\tregard\tto   a\t supervening
\ndisqualification cover-\n<\/p>\n
\t\t\t\t\t\t       958<\/span><\/p>\n
ing cases of those who have attained the age of 65 years and
\nbeing  a member of the Board. As already stated,  the  words
\n“or  being”  are of considerable import. As to what  is\t the
\nmeaning\t of  these words can be gathered by two\t rulings  of
\nthis  Court  which came to deal with  the  similar  language
\nemployed.   (Article   102<\/a>  in\trelation   to\tMembers\t  of
\nParliament).\n<\/p>\n
In  Election  Commission, India v. Saka Venkata\t Subba\tRao<\/a>,
\n[1953] SCR 1144 @ 1157 it was observed as under :-
\n\t “The  use of the word “become” in  articles  190(3)
\n\t and 192(1) is not inapt, in the context, to include
\n\t within\t its  Scope  pre-existing  disqualifications
\n\t also, as becoming subject to a disqualification  is
\n\t predicated of “a member of a House or Legislature”,
\n\t and a person who, being already disqualified,\tgets
\n\t elected,   cannot  inappropriately,  be   said\t  to
\n\t “become”  subject  to\tthe  disqualification  as  a
\n\t member\t as soon as he is elected. The\targument  is
\n\t more ingenious than sound. Article 191<\/a>, which\tlays
\n\t down the same set of disqualifications for election
\n\t as well as for continuing as a member, and  Article
\n\t 193<\/a>  which prescribes the penalty for\tsitting\t and
\n\t voting when disqualified, are naturally phrased  in
\n\t terms\twide enough to cover both  pre-existing\t and
\n\t supervening  disqualifications;  but  it  does\t not
\n\t necessarily follow that articles 190(3) and  192(1)
\n\t must  also  be taken to cover both.  Their  meaning
\n\t must  depend on the language used which, we  think,
\n\t is reasonably plain”.\n<\/p>\n
    In\tPashupati  Nath Sukul etc. v. Nem Chandra  Jain\t and
\nOthers,\t [1984] 2 S.C.C. 404 @ 417, in para 18 it is  stated
\nas under :-\n<\/p>\n
\t “Article  191<\/a>\tof the Constitution  prescribes\t the
\n\t disqualifications    for    membership\t   of\t the
\n\t Legislative  Assembly or Legislative Council  of  a
\n\t State,\t   on\t the   incurring   of\t any\tsuch
\n\t disqualification a member of a Legislative Assembly
\n\t or  a\tLegislative Council ceases to  be  a  member
\n\t thereof.”\n<\/p>\n
lm
\n    Therefore,\t  it\twill   follow\tthat\tonce\tthis
\ndisqualification  of  attaining\t the  age  of  65  years  is
\nincurred,  there  is  an automatic  cessation  from  holding
\noffice.\t This  is  because Section 5(6)<\/a>\t contains  the\tsame
\nphrascology  as is found under Article 102<\/a> and 191.<\/a>  In\t our
\nconsidered view Section 5(6)<\/a> applies to initial\t appointment
\nas well as to those continuing in appointment. We will\talso
\nusefully refer to American Jurisprudence (Vol. 63), at\tpara
\n42, it is stated thus:-\n<\/p>\n
\t\t\t\t\t\t       959<\/span><\/p>\n
\t “Disqualification arising after election and before
\n\t or  during term. – Eligibility to public office  is
\n\t of  a\tcontinuing  nature and\tmust  exist  at\t the
\n\t commencement  of the term and during the  occupancy
\n\t of the office. The fact that the candidate may have
\n\t been  qualified at the time of his election is\t not
\n\t sufficient  to entitle him to hold the\t office,  if
\n\t at  the  time of the commencement of  the  term  or
\n\t during the continuance of the incumbency he  ceases
\n\t to be qualified”.\n<\/p>\n
    It is rather unfortunate that the High Court has  missed
\nthe  true import of the words “or being”. Therefore, we\t are
\nunable\tto subscribe to the findings of the High Court\twhen
\nit states “the provision lays down the age of superannuation
\nfor a member prospectively which disqualifies a person\tfrom
\nbeing  appointed or being a member after he attains the\t age
\nof 65 years” by itself it does not affect those who had been
\ngiven appointment after having attained the age of 65 years.
\nThe Legislature was conscious of it, but thought of enacting
\na provision like Section 3<\/a> on that account.
\n    We\tare  unable  to see any\t warrant  for  holding\tthat
\nSection 5(6)<\/a> as amended having regard to the use of language
\n“or  being” would any way exclude such of those\t members  or
\neven  the Chairman who have attained the age of 65 years  of
\nage at the time of appointment. According, we conclude\tthat
\nSection\t 5(6)<\/a>  itself would be enough to hold  that  on\t the
\ncoming\tinto force of the amending Act, namely, 13.7.90\t the
\nfirst respondent ceases to hold the office by the rigour  of
\nlaw,  as  rightly contended by Mr. Shanti  Bhushan,  learned
\ncounsel for the appellant.\n<\/p>\n
    Now\t  we  shall  proceed  to  consider  as\tto   why   a
\ncorresponding\tamendment   has\t  not\tbeen   provided\t  by
\nincorporating  this  disqualification. The argument  of\t Mr.
\nKapil  Sibal is that the attaining of 65 years is not to  be
\nconsidered as disqualification as otherwise Section 10<\/a> would
\nprovide for such a situation. It has already been seen\tthat
\nSection 10<\/a> merely confers an enabling power to take punitive
\naction. It is one thing the State has power to take  puritiv
\naction,\t it is entirely different thing to say that  in\t law
\nthe first respondent ceases to hold office on the  incurring
\nof the disqualification of attainment of 65 years of age. If
\nSection 5(6)<\/a> itself brings about a cessation of office, that
\nSub-section being self-executory in nature,
\n\t\t\t\t\t\t       960<\/span>
\nthere  is no need to provide for the same under\t Section  10<\/a>
\nonce  over  again. Merely because the  parent  Act  (Central
\nLegislation)  provides for a disqualification on account  of
\nbecoming a Member of Parliament, State Legislature or  Local
\nBoard,\tthat  does not mean there must\tbe  a  corresponding
\nprovision incorporating age as well under Section 10<\/a>. We are
\nunable\t to  agree  with  Mr.  Kapil  Sibal.  Equally,\t the
\ncontention  that  Section  5(6)<\/a>\t only  deals  with   initial
\nappointment  and  would not cover a  case  of  reappointment
\nafter attaining the age of 65 is wholly unacceptable to\t us.
\nFirst of all, as we have stated earlier there is no question
\nof any seperate power for reappointment under Section 8<\/a>\t and
\nthe  only  power  being traceable to  Section  5<\/a>  read\twith
\nSections 14<\/a> and 16<\/a> of the General Clauses Act.
\n    Factually we will now consider whether this is a case of
\nreappointment  at all. The original order to appointment  of
\nthe first respondent was on 24.7.1981, first as a Member and
\nas  Chairman  for a period of 2 years. These two  orders  of
\nappointment do not concern very much.\n<\/p>\n
    The next comes the appointment dated 13.8.1982, when the
\nfirst  respondent  came\t to  be\t appointed  as\tChairman  of
\nHimachal Pradesh State Electricity Board. Though during\t the
\nnarration  of  facts we have referred to this order,  it  is
\nworthwhile to quote it once over again in full as  something
\nmaterial turns on this.\n<\/p>\n
\t      “GOVERNMENT OF HIMACHAL PRADESH
\n\t\t DEPARTMENT OF PERSONNEL-II
\n    No. 8- 155\/73 – DP (Apptt. II) Dated Shimla -2, the 13th
\nAug, 1982.<\/p><\/blockquote>\n
\t\t\tNOTIFICATION
\n\t In exercise of the powers conferred by section 5<\/a> of
\n\t the  Electricity (Supply) Act, 1948, the  Governor,
\n\t Himachal  Pradeshm,  is  pleased  to  appoint\tShri
\n\t Kailash   Chand, Retd. Chief Engineer\t(Irrigation)
\n\t Punjab,  whose\t appointment as Member,\t H.P.  State
\n\t Electricity   Board,\thas   been   notified\tvide
\n\t Notification  of even number, dated the 24th  July,
\n\t 1981, as Chairman, H.P. State Electricity Board for
\n\t a period of five years, with effect from 25th July,
\n\t 1981.\t Detailed  terms  and  conditions   of\t his
\n\t appointment has already been issued separately.\n<\/p>\n
\t\t\t\t\t\t       961<\/span><\/p>\n
\t This is in supersession of this Deptt. Notification
\n\t of even number, dated the 24th July, 1981.\n<\/p>\n
\t\t\t\t\t\t    By Order
\n\t\t\t\t\t\tK.C. Pandeya
\n\t\t\t\t\t  Chief Secy. to the
\n\t\t\t\t Govt. of Himachal Pradesh”.\n<\/p>\n
    As\tseen from the above, the number of the order  is  8-
\n155\/73-DP (Apptt-II). The next order of extension bears\t the
\nsame  number  dated 12.5.86. That also\tclearly\t states\t “in
\ncontinuation  of  this\tDepartment’s  notification  of\teven
\nnumber\tdated 13.8.82, the Governor of Himachal\t Pradesh  is
\npleased\t to extend the appointment” This extension is for  a
\nperiod\tof  three years. Then comes the\t last  extension  on
\n12.6.89\t which also bears the number 8\/155\/73 –\t DP  (Apptt-
\nII). Again, the notification reads “in continuation of\tthis
\nDepartment’s  notification of even number  dated  12.5.1986,
\nthe  Governor of Himachal Pradesh is pleased to\t extend\t the
\nappointment”.  Therefore,  where  the  original\t appointment
\ndated  12.5.86 is extend from time to time, it is futile  to
\ncontend\t that these are fresh appointments. While we are  on
\nthis  we have also get to refer to the counter affidavit  of
\nthe State filed in the writ petition before the High  Court.
\nIn para 12 it is stated as follows :-\n<\/p>\n
\t “The  contents\t of  para 12  of  the  petition,  as
\n\t stated,   are\twrong  and  hence  denied.   It\t  is
\n\t emphatically  denied that the power  was  exercised
\n\t malafide  and was colourable exercise of  power  or
\n\t was a fraud on power. The power has been  exercised
\n\t within\t the  legal  ambit of Section  5<\/a>  read\twith
\n\t Section   8<\/a>  of  the  Act  and\t the  rules   framed
\n\t thereunder.”\n<\/p>\n
    From  this\twe are unable to see how any help  could  be
\nderived\t by the first respondent to base his arguments\tthat
\nthe  power of reappointment is traceable to Section 8<\/a>.\tThis
\naspect of the matter had already been dealt with by us.
\n    The statement of `Objects and Reasons’ makes a reference
\nto  Section  8<\/a>.\t But  it does not again\t mean  there  is  an
\nindependent power of appointment. What the above extract  of
\ncounter affidavit and reference to Section 8<\/a> mean is  denial
\nof malafide. Besides, hitherto no outer age limit has been
\n\t\t\t\t\t\t       962<\/span>
\nprescribed  for the post of Chairmanship. It is\t that  which
\nis  sought to be prescribed now. The reference to Section  8<\/a>
\nmeans only the “term” and nothing else.
\n    We\tare also unable to accept the arguments advanced  on
\nbehalf\tof  the first respondent that for a tenure  post  no
\nperiod\tcan  be\t fixed. Instances are not  wanting  in\tthis
\nregard.\t Therefore, rightly reference is made by Mr.  Shanti
\nBhushan to Article 224<\/a> of the Constitution extract of  which
\nis given below:-\n<\/p>\n
\t “224. Appointment of additional and acting Judges –
\n\t (1)  If by reason of any temporary increase in\t the
\n\t business of a High Court or by reason of arrears of
\n\t work therein, it appears to the President that\t the
\n\t number\t of the Judges of that court should  be\t for
\n\t the   time  being  increased,\tthe  President\t may
\n\t appoint  duly\tqualified persons to  be  additional
\n\t Judges\t of the Court for such period not  exceeding
\n\t two years as he may specify.\n<\/p>\n
\t (2)  When any Judge of a High Court other than\t the
\n\t Chief\tJustice is by reason of absence or  for\t any
\n\t other\treason unable to perform the duties  of\t his
\n\t office or is appointed to act temporarily as  Chief
\n\t Justice, the President may appoint a duly qualified
\n\t person\t to act as a Judge of that Court  until\t the
\n\t permanent Judge has resumed his duties.
\n\t   (3)\tNo  person  appointed as  an  additional  or
\n\t acting\t Judge\tof a High Court\t shall\thold  office
\n\t after attaining the age of (Sixty- two years)”.
\n\t Again, a reference can be made to Section 8<\/a> of\t the
\n\t Administrative Tribunals Act. That Section reads as
\n\t follows :-\n<\/p>\n
\t     “Term  of Office – The Chairman, Vice  Chairman
\n\t or  other  Member shall hold office as such  for  a
\n\t term of five years from the date on which he enters
\n\t upon\this  office,  but  shall  be  eligible\t for
\n\t reappointment for another term of five years :\n<\/p>\n
\t     Provided  that  no Chairman,  Vice-Chairman  or
\n\t other\tMembers shall hold office as such  after  he
\n\t has attained –\n<\/p>\n
\t    (a)\t in  the  case\tof  the\t Chairman  or  Vice-\n<\/p>\n
\t Chairman, the age
\n\t\t\t\t\t\t       963<\/span>
\n\t of sixty five years, and\n<\/p>\n
\t (b)  in  the case of any other Member, the  age  of
\n\t sixty-two years”.\n<\/p>\n
    Therefore,\twhere the State has taken a policy  decision
\nto  prescribe  an  outer age limit for the  Members  or\t the
\nChairman of the Electricity Board it is perfectly legal.
\n    The\t scope of Section 3<\/a> of Electricity  (Supply),  (H.P.
\nAmendment)  Act<\/a>,  1990\tand  whether it\t is  bad  as  single
\nperson’s legislation.\n<\/p>\n
    Section 3<\/a> of the Amendment Act reads as follows :-
\n\t “3.  (1) Notwithstanding anything to  the  contrary
\n\t contained  in\tany provisions\tof  the\t Electricity
\n\t (Supply) Act<\/a>, 1948, rules, regulations or  bye-laws
\n\t made thereunder or in any judgement decree or order
\n\t of  the court or in any contract,  any\t appointment
\n\t made  before  the commencement of  the\t Electricity
\n\t (Supply)  (Himachal Pradesh Amendment)\t Act,  1990,
\n\t whereby  a  person  has a right to  continue  as  a
\n\t member\t of the Board after attaining the age of  65
\n\t years,\t shall be void; and on such commencement  he
\n\t shall\tbe deemed to have ceased to hold  office  of
\n\t the member of the Board.\n<\/p>\n
\t (2) On ceasing to hold office of the member of\t the
\n\t Board\tunder sub-section (1) such member  shall  be
\n\t entitled  to compensation as may be  determined  by
\n\t the  State Government; but such compensation  shall
\n\t not  exceed the amount equivalent to the amount  of
\n\t salary\t and  allowances  payable  to  him  for\t his
\n\t unexpired term”.\n<\/p>\n
    One\t thing\tthat is significant is it contains  a  `non-
\nobstante’  clause. An appointment of a Member of  the  Board
\nmade  prior to the commencement to this Act namely,  13.7.90
\n(giving\t retrospective\toperation)  when gives\ta  right  to
\ncontinue  as a member after attaining the age of  65  years,
\nthat appointment is rendered void.\n<\/p>\n
    This  non-obstante\tclause is a sweep.  It\tapplies\t (1)
\nnotwithstanding\t anything to the contrary in any  provisions
\nof the Electricity (Supply) Act<\/a>; (2) rules and\tregulations,
\nbye-laws made therein; (3) any judgment, decree or order  of
\nthe court; and (4) any contract.\n<\/p>\n
\t\t\t\t\t\t       964<\/span><\/p>\n
    Once  it is so rendered void, the law deems that he\t has
\nceased\tto  hold  office of the Member of the  Board.  By  a
\nreading of the Section we are unable to conclude how Section
\n3(1)<\/a> would fail to apply to a person who on the date of\t the
\ncommencement  was already more than 65 years. This  line  of
\nreasoning  adopted by the High Court does not appeal to\t us.
\nThe Section nowhere makes a distinction between those on the
\ndate of the enactment are “below” or “over” 65 years of age.
\nSuch  a\t distinction  is totally  unwarranted.\tThe  crucial
\nquestion to be asked is whether the particular incumbent  is
\ncontinuing after the attainment of 65 years of age, if\tthat
\nquestion is answered in the affirmative there is a cessation
\nof  office,  in\t view  of the terms  of\t that  Section.\t The
\ncontrary conclusion would lead to strange results. Those who
\nare  appointed prior to the Act and on the attainment of  65
\nyears  on  13.7.90, would vacate the office while  a  person
\nalready\t 65  on that date and after the passing of  the\t Act
\nnotwithstanding\t the  policy  of  prescribing  the  age\t  of
\nsuperannuation of 65 years would continue in the office. The
\nobject of introducing an age of superannuation itself is  to
\nweed  out the older elements and infuse fresh blood so\tthat
\nthe administration could function with vigour.
\n    Mr.\t  Kapil\t Sibal,\t learned  counsel  for\t the   first
\nrespondent  would submit that legislative intention has\t not
\nbeen brought out clearly. In this connection we will do well
\nto refer to Francis Bennion’s Statutory Interpretation (1984
\nedn.)  at page 237. The distinction between the\t legislative
\nintention and the purpose object of the legislation has been
\nsuccinctly summarised as under:-\n<\/p>\n
\t “The  distinction between the purpose or object  of
\n\t an   enactment\t  and  the   legislative   intention
\n\t governing  it\tis that the former  relates  to\t the
\n\t mischief to which the enactment is directed and its
\n\t remedy,  while\t the  latter relates  to  the  legal
\n\t meaning of the enactment”.\n<\/p>\n
    Thus there is a great distinction between the two. While
\nthe  object  of legislation is to provide a remedy  for\t the
\nmalady.\t On the contrary, the legislative intention  relates
\nto the meaning from the exposition of the remedy as enacted.
\nFor  determining  the  purpose\tof  object  of\tlegislation,
\nindeed,\t it  is permissible to look into  the  circumstances
\nwhich  were prevalent at that time when the law was  enacted
\nand  which necessitated the passing of that  enactment.\t For
\nthe limited purpose of appreciating
\n\t\t\t\t\t\t       965<\/span>
\nthe background and the antecedents factual matrix leading to
\nthe  legislation  it is open to the court to look  into\t the
\nstatement  of  `Objects\t and  Reasons’\tof  the\t Bill  which
\naccentuated  to\t provide  a remedy  for\t the  then  existing
\nmalady.\t In  the case of State of West Bengal  v.  Union  of
\nIndia<\/a>, [1964] 1 SCR 371, this court ruled that the statement
\nof `Objects and Reasons’ accompanied a Bill when  introduced
\nin  Parliament\tcan  be\t used for  the\tlimited\t purpose  of
\nunderstanding,\tthe background and state of affairs  leading
\nup  to\tthe  legislation. Therefore, we now  look  into\t the
\nstatement of `Objects and Reasons’. That clearly brings\t out
\nthe  object  of the desirability of introducing\t an  age  of
\nsuperannuation\t as   the   same  is   entrenched   in\t our
\nadministrative and constitutional systems. With this  object
\nin  view,  Section  3<\/a> intends that no one  has\ta  right  to
\ncontinue as a member of the Board after attaining the age of\n<\/p>\n
65.  Thus,  the only conclusion possible is,  by  reason  of
\nappointment  if\t the incumbent is enable to  continue  after
\nattaining  the age of 65 years such continuing\tis  rendered
\nvoid.\n<\/p>\n
    No\tdoubt  as  we have stated  above,  Section  5(6)<\/a>  as
\namended\t achieves  this\t purpose. Yet if  there\t is  another
\nSection which deals with the same it must be regarded as one
\nintroduced  by\tway of abundant caution. In  short,  Section
\n3(1)<\/a> is epexegesis.\n<\/p>\n
    The\t arguments advanced by Mr. Kapil Sibal remind us  of
\nthe  eloquent  words  of  Dr. Johnson  “There  is  a  wicked
\ninclination in most people to supppose an old man decayed in
\nhis itellects. If a young or middle-aged man, when leaving a
\ncompany,  does\tnot recollect where he laid his hat,  it  is
\nnothing; but if the same inattention is discovered in an old
\nman,  people  will shrug up their shoulders, and  say,\t`His
\nmemory is going’.”\n<\/p>\n
    It our opinion such sentiments can be no answer  against
\nthe operation of law.\n<\/p>\n
    In might be argued by the tenure of appointment there is
\na right to continue; the legitimate expectation has come  to
\nbe interfered with. In a matter of this kind, as to  whether
\nlegitimate  expectation\t could be pleaded is a\tmoot  point.
\nHowever, we will now refer to Wade’s Administrative Law (6th
\nEdition) wherein it is stated at page 520-21, as under :-
\n\t “Legitimate expectation : positive effect
\n\t\t\t\t\t\t       966<\/span>
\n\t The  classic situation in which the  principles  of
\n\t natural justice is where some legal right,  liberty
\n\t or  interest  is  affected, for  instance  where  a
\n\t building  is  demolished  or  an  office-holder  is
\n\t dismissed  or\ta trader’s license is  revoked.\t But
\n\t good  administration  demands their  observance  in
\n\t other\tsituations  also,  where  the  citizen\t may
\n\t legitimately  expect to be treated fairly. As\tLord
\n\t Bridge has explained :\n<\/p>\n
\t Re  Westminister  CC  (1986) AC 668  at  692.\tLord
\n\t Diplock  made a formal statement in the Council  of
\n\t Civil\tService Unions case (below) at 4408,  saying
\n\t that  the  decision must affect some  other  person
\n\t either\t – (a) by altering rights or obligations  of
\n\t that person which are enforceable by or against him
\n\t in  private  law; or (b) by depriving him  of\tsome
\n\t benefit or advantage which either (i) he had in the
\n\t past been permitted by the decision-maker to  enjoy
\n\t and   which  he  can  legitimately  expect  to\t  be
\n\t permitted  to continue to do until there  has\tbeen
\n\t communicated  to  him\tsome  rational\tgrounds\t for
\n\t withdrawing  it  on  which he\thas  been  given  an
\n\t opportunity  to  comment; or (ii) he  has  received
\n\t assurance  from  the  decision-maker  will  not  be
\n\t withdrawn  without giving him first an\t opportunity
\n\t of  advancing\treasons\t for  contending  that\tthey
\n\t should not be withdrawn.\n<\/p>\n
\t This  analysis\t is  `classical\t but  certainly\t not
\n\t exhaustive   :\t R.  Secretary\tof  State  for\t the
\n\t Environment ex. P. Nottinghamshire CC (1986) AC 240
\n\t at 249 (Lord Scarman). One case which does not seem
\n\t to be covered is that of a first-time applicant for
\n\t a   licence  (below.  p.  559).  The  courts\thave
\n\t developed a relatively novel doctrine in public law
\n\t that  a  duty\tof consultation\t may  arise  from  a
\n\t legitimate  expectation  of  consultation   aroused
\n\t either\t by a promise or by an established  practice
\n\t of consultation”.\n<\/p>\n
    In a recent case, in dealing with legitimate expectation
\nin  R.\tv. Ministry of Agriculture Fisheries  and  Food,  ex
\nparte Jaderow Ltd and Others, [1991] All England Law Reports\n<\/p>\n
41. It has been observed at page 68 :-\n<\/p>\n
\t “Question II : Legitimate Expectation: It should be
\n\t pointed  out in this regard that, under the  powers
\n\t reserved  to  the  member states by  Art.  5(2)<\/a>  of
\n\t Regulation 170\/83, fishing activities could
\n\t\t\t\t\t\t       967<\/span>
\n\t be made subject to the grant to licences which,  by
\n\t their nature, are subject to temporal limits and to
\n\t various  conditions. Furthermore, the\tintroduction
\n\t of  the  quota system was only\t one  event  amongst
\n\t others\t in the evolution of the  fishing  industry,
\n\t which\t is   characterised   by   instability\t and
\n\t continuous changes in the situation due to a series
\n\t of  events  such  as the extensions,  in  1976,  of
\n\t fishing  areas to 200 miles from certain coasts  of
\n\t the community, the necessity to adopt measures\t for
\n\t the  conservation of fishing resources,  which\t was
\n\t dealt with at the international by the introduction
\n\t of total allowable catches, the arguments about the
\n\t distribution  amongst\tthe members  states  of\t the
\n\t total\t allowable   catches   available    to\t the
\n\t Community,  which were finally distributed  on\t the
\n\t basis of a reference period which ran from 1973  to
\n\t 1978 but which is reconsidered every year.
\n\t   In those circumstances, operators in the  fishing
\n\t industry were not justified in taking the view that
\n\t the  Community\t rule precluded the  making  of\t any
\n\t changes  to  the conditions laid down\tby  national
\n\t legislation  or practice for the grant of  licences
\n\t to fish against national quotas or the adoption  of
\n\t new conditions compatible with community Law.
\n\t   Consequently, the answer to this question must be
\n\t that  Community  Law  as it  now  stands  does\t not
\n\t preclude   legislation\t or a practice of  a  member
\n\t state\twhereby\t a  new\t condition  not\t  previously
\n\t stipulated  is laid down for the grant of  licences
\n\t to fish against national quotas.”\n<\/p>\n
    Thus,  it  will  be clear  even  legitimate\t expectation
\ncannot preclude legislation.\n<\/p>\n
    Where  the right to continue in office has been  put  an
\nend  to by statute, even then it may be complained that\t the
\nother  rights  like salary and perks would  continue  to  be
\nreserved   and\tthey  could  be\t claimed.  To\tavoid\tthat
\ncontention,   Section\t3(2)<\/a>   provides\t  for\tcompensation
\nequivalent  to the amount of salary and allowances  for\t the
\nunexpired term of office.\n<\/p>\n
    Even  assuming that the reasoning of the High  Court  is
\ncorrect, in that, by the term of appointment he should\thave
\na right to continue after
\n\t\t\t\t\t\t       968<\/span>
\nattaining  the age of 65, when we look at  the\tnotification
\ndated  12.6.89, that lives the first respondent a  right  to
\ncontinue beyond the age of 65.\n<\/p>\n
    Then  the  question\t will  be whether  it  is  a  single
\nperson’s legislation. The argument and the counter arguments
\nproceed\t thus.\tMr.  Shanti  Bhushan  would   urge  that  it
\nhappened at the time of enactment only the first  respondent
\nhad  attained the age of 65 years and, therefore,  it  could
\nnot  be called a single man’s legislation since\t it  affects
\neveryone.  On the contrary, the argument of Kapil  Sibal  is
\nthat only the first respondent alone could be affected\tand,
\ntherefore,  it\tis  a  single  person’s\t legislation   being
\nviolative of Article 14<\/a> of the constitution. We will look at
\nthe  relevant  case  law which deals  with  single  person’s
\nlegislation and how far they are violative of Article 14.<\/a> In
\nChiranjit  Lal Chowdhury v. The Union of India\tand  Others<\/a>,
\n[1950] 1 S.C.R. 869, the head note reads :
\n\t “Held also per KANIA C.J., FAZAL ALI, and MUKHERJEA
\n\t JJ.-  (PATANJALI SASTRI AND DAS,JJ.  dissenting)  –
\n\t that  though the Legislature had proceeded  against
\n\t one  company only and its shareholders inasmuch  as
\n\t even  one corporation or a group of persons can  be
\n\t taken\tto be a class by itself for the\t purpose  of
\n\t legislation, provided there is sufficient basis  or
\n\t reason for it and there is a strong presumption  in
\n\t favour\t of the constitutionality of  an  enactment,
\n\t the  burden  was on the petitioner  to\t prove\tthat
\n\t there were also other companies similarly  situated
\n\t and  this  company  alone  had\t been  discriminated
\n\t against,  and\tas he had failed to  discharge\tthis
\n\t burden\t the  impugned Act cannot be  held  to\thave
\n\t denied\t to  the  petitioner  the  right  to   equal
\n\t protection  of the laws referred to in Art. 14<\/a>\t and
\n\t the  petitioner was not therefore entitled  to\t any
\n\t relief under Art. 32.”\n<\/p>\n
\t In  Shri  Ram Krishna Dalmia v. Shri  Justice\tS.R.
\n\t Tendolkar  & Others<\/a>, [1959] S.C.R. 1959    296-299,
\n\t it has been held thus :-\n<\/p>\n
\t “…It\t is now well established that while  article
\n\t 14<\/a>  forbids class legislation, it does\t not  forbid
\n\t reasonable  classification  for  the  purposes\t  of
\n\t legislation. In order, however, to pass the test of
\n\t permissible  classification two conditions must  be
\n\t fulfilled, namely, (i) that the classification must
\n\t be  founded on an intelligible\t differentia   which
\n\t distinguishes persons or things that are
\n\t\t\t\t\t\t       969<\/span>
\n\t grouped together from others left out of the  group
\n\t and,  (ii)  that  that\t differentia  must  have   a
\n\t rational  relation  to\t the  object  sought  to  be
\n\t achieved   by\t the  statute\tin   question.\t The
\n\t classification\t may be founded on different  hases,
\n\t namely,  geographical, or according to\t objects  or
\n\t occupations or the like. What is necessary is\tthat
\n\t there\tmust  be  a  nexus  between  the  basis\t  of
\n\t classification\t and  the object of  the  Act  under
\n\t consideration.\t It is also well established by\t the
\n\t decisions  of this Court that article\t14<\/a>  condemns
\n\t discrimination\t not only by a substantive  law\t but
\n\t also\tby  a  law  of\tprocedure”.  The   principle
\n\t enunciated above has been consistently adopted\t and
\n\t applied  in subsequent cases. The decisions of this
\n\t Court further establish –\n<\/p>\n
\t (a) that a law may be constitutional even though it
\n\t relates to a single individual, on account of\tsome
\n\t special circumstances or reasons applicable to\t him
\n\t and   not   applicable\t to  others,   that   single
\n\t individual may be treated as a class by himself ;\n<\/p>\n
\t (b) that there is always a presumption in favour of
\n\t the  constitutionality\t of  an\t enactment  and\t the
\n\t burden\t is  upon him who attacks it  to  show\tthat
\n\t there\thas  been  a  clear  transgression  of\t the
\n\t constitutional principles ;\n<\/p>\n
\t (c)  that it must be presumed that the\t legislature
\n\t understands  and correctly appreciates the need  of
\n\t its  own  people,  that its laws  are\tdirected  to
\n\t problems  made manifest by experience and that\t its
\n\t discriminations are based on adequate grounds ;\n<\/p>\n
\t (d)  that  the\t legislature is\t free  to  recognise
\n\t degrees of harm and may confine its restrictions to
\n\t those\tcases  where the need is deemed\t to  be\t the
\n\t clearest ;\n<\/p>\n
\t (e)  that  in order to sustain the  presumption  of
\n\t constitutionality   the   court   may\t take\tinto
\n\t consideration matters of common knowledge,  matters
\n\t of common report, the history of the times  and may
\n\t assume every state of facts which can be  conceived
\n\t existing at the time of legislation ; and\n<\/p>\n
\t (f)  that  while good faith and  knowledge  of\t the
\n\t existing  conditions on the part of  a\t legislature
\n\t are to be presumed, if there
\n\t\t\t\t\t\t  970<\/span>
\n\t is   nothing  on  the\tface  of  the  law  or\t the
\n\t surrounding  circumstances brought to he notice  of
\n\t the   court   on  which  the\tclassification\t may
\n\t reasonably be regarded as based, the presumption of
\n\t constitutionality  cannot be carried to the  extent
\n\t of   always  holding  that  there  must   be\tsome
\n\t undisclosed  and  unknown  reasons  for  subjecting
\n\t certain  individuals or corporations to hostile  or
\n\t discriminating legislation.\n<\/p>\n
\t The  above  principles will have to  be  constantly
\n\t borne\tin mind by the court when it is called\tupon
\n\t to adjudge the constitutionality of any  particular
\n\t law attacked as discriminatory and violative of the
\n\t equal protection of the laws.\n<\/p>\n
\t A  close persual of the decisions of this Court  in
\n\t which the above principles have been enunciated and
\n\t applied by this Court will also show that a statute
\n\t which\tmay come up for consideration on a  question
\n\t of its validity under Art.  14<\/a> of the Constitution,
\n\t may be placed in one or other of the following five
\n\t classes :-\n<\/p>\n
\t (i)   A statute may itself indicate the persons  or
\n\t things to whom its provisions are intended to apply
\n\t and the basis of the classification of such persons
\n\t of things may appear on the face of the statute  or
\n\t may be gathered from the surrounding  circumstances
\n\t known to or brought to the notice of the Court.  In
\n\t determining  the  validity or otherwise or  such  a
\n\t statute  the  court  has to  examine  whether\tsuch
\n\t classification is or can be reasonably regarded  as
\n\t based\tupon  some differentia\twhich  distinguishes
\n\t such persons or things grouped together from  those
\n\t left out of the group and whether such\t differentia
\n\t has  a reasonable relation to the object sought  to
\n\t be  achieved by the statute, no matter whether\t the
\n\t provisions of the statute are intended to apply  to
\n\t a  particular person or thing or only to a  certain
\n\t class\tor persons or thing.  Where the Court  finds
\n\t that  the classification satisfies the\t tests,\t the
\n\t court\twill uphold the validity of the law,  as  it
\n\t did in Chiranjital Chowdhari v. The Union of India,
\n\t The  State  of Bombay v. F.N. Balsara<\/a>,\t Kedar\tNath
\n\t Bajoria  v.  The  State of West  Bengal  V.M.\tSved
\n\t Mohammad  &  Company<\/a>  v. The State  of\t Andhra\t and
\n\t Bhushan Choudhary v.  The State of Bihar.\n<\/p>\n
\t\t\t\t\t\t       971<\/span><\/p>\n
\t (ii)\tA statute may direct its provisions  against
\n\t one  individual  person  or  thing or\tto   several
\n\t individual  persons  or things\t but  no  reasonable
\n\t basis\tof classification may appear on the face  of
\n\t it   or   be\tdeducible   from   the\t surrounding
\n\t circumstances, or matters of common knowledge.\t  In
\n\t such  a case the court will strike down the law  as
\n\t an  instance of naked discrimination, as it did  in
\n\t Ammerunnissa  Begum v. Mahboob Begum<\/a> and  Ramprasad
\n\t Narain Sahi v. The State of Bihar.”\n<\/p>\n
     From  the\tproposition it is clear that there  could  a
\nlegislation  relating  to a single person.  Assuming  for  a
\nmoment,\t that  the  Section  3<\/a> applies\tonly  to  the  first
\nrespondent even then, where it is avowed policy of the State
\nto  introduce an age of superannuation of 65 years  of\tage,
\nthere is nothing wrong with the same.\n<\/p>\n
     In Lachhman Das on behalf of firm Ram Ram Bux v.  State
\nof Punjab  and Others<\/a> [1963] 2 S.C.R. 353 @ 375, it is\theld
\nas thus :-\n<\/p>\n
\t “…Professor Willis says in his Constitutional Law
\n\t p.580 “a law applying to one person or one class of
\n\t persons  is constitutional if there  is  sufficient
\n\t basis or reason for it”.  This statement of law was
\n\t approved by this Court in Chiranjit Lal Chowdhry v.
\n\t Union of India<\/a>“.\n<\/p>\n
     Therefore,\t on  this principle Patiala State  Bank\t was
\nheld  to  be a class by itself and it would  be\t within\t the
\npower of the State to enact a law with respect to it.\n<\/p>\n
     In\t Tilkyat  Shri Govindlalji Maharaj v. The  State  of
\nRajasthan and others<\/a>, [1964] S.C.R. 561 @ 617-18, it is held
\nas thus :-\n<\/p>\n
\t “That\ttakes  us to the argument that\tthe  Act  is
\n\t invalid because it  contravenes Act.  14.   In\t our
\n\t opinion, there is no substance in this argument. We
\n\t have referred to the historical background  of\t the
\n\t present  legislation.\tAt the time  when  Ordinance
\n\t No.  II  of  1959 was issued, it had  come  to\t the
\n\t knowledge  of\tthe  Government\t of  Rajasthan\tthat
\n\t valuables  such a jewelleries, ornaments, gold\t and
\n\t silver-ware  and  cash\t had  been  removed  by\t the
\n\t Tilkayat in the month of December 1957, and as\t the
\n\t successor  of\tthe  State of Mewar,  the  State  of
\n\t Rajasthan had to
\n\t\t\t\t\t\t    972<\/span>
\n\t exercise   its\t  right\t of  supervising   the\t due
\n\t administration\t of  the properties of\tthe  temple.
\n\t There\tis  no doubt that the  shrine  at  Nathdwara
\n\t holds\ta unique position amongst the Hindu  shrines
\n\t in  the  State of Rajasthan and no  temple  can  be
\n\t regarded  as  comparable  with\t it.   Besides,\t the
\n\t Tilkayat himself has entered into negotiations\t for
\n\t the  purpose of obtaining a proper scheme  for\t the
\n\t administration\t of  the temple properties  and\t for
\n\t that purpose, a suit under s.92 of the Code had  in
\n\t fact been filed.  A Commission of Enquiry had to be
\n\t appointed  to investigate into the removal  of\t the
\n\t valuables.   If the temple is a public\t temple\t and
\n\t the  legislature  though that it was  essential  to
\n\t safe\tguard the interests of the temple by  taking
\n\t adequate  legislative action in that behalf, it  is
\n\t difficult  to\tappreciate  how\t the  Tilkayat\t can
\n\t seriously  contend  that in passing  the  Act,\t the
\n\t legislature  has  been guilty\tof  unconstitutional
\n\t discrimination.  As has been held by this Court  in
\n\t the case of Shri Ram Krishna Dalmia v. Shri Justice
\n\t G.R.  Tendolkar<\/a>, that a law may  be  constitutional
\n\t even  though it relates to a single individual\t if,
\n\t on account of some special circumstances or reasons
\n\t applicable  to\t him and not applicable\t to  others,
\n\t that single individual may be treated as a class by
\n\t himself.   Therefore, the plea raised under  Art.14<\/a>
\n\t fails.\n<\/p>\n
     In\t  Lalit\t  Narayan  Mishra  Institute   of   Economic
\nDevelopment and Social Change, Patna, etc. v. State of Bihar
\n& other etc., [1988] 3 SCR 311 @ 312 it is held thus :-
\n\t “All\tthe   institutions   which   answered\t the
\n\t description  given in section 2(a)<\/a> of the Act\twere
\n\t to be nationalised.  It was not correct to say that
\n\t the   Institute   had\t been\tsingled\t  out\t for
\n\t nationalisation.”\n<\/p>\n
\t @ p. 321 it is held thus :-\n<\/p>\n
\t “The  nationalisation has been resolved to be\tmade
\n\t in phases.  It has been already that under  section
\n\t 3(1)<\/a>  of the Act, the Institution mentioned in\t the
\n\t Schedule   will   be  transferred  to\t the   State
\n\t Government  and will be actually vested in it\tfree
\n\t from  all  circumstances.   The  Schedule  mentions
\n\t only  one Institute and in view of section 3(1)<\/a>  it
\n\t has vested in the State
\n\t\t\t\t\t\t       973<\/span>
\n    Government.\t It is said that the first phase relates  to
\n    the taking over of the Institute and that has been done.
\n    Section 3(2)<\/a> also provides for amendment of the Schedule
\n    by including any institution.  In other words, the other
\n    institutions  which\t answer the description\t of  private
\n    educational\t institutions  as defined in clause  (a)  of
\n    section 2<\/a> of the Act will also be nationalised not at  a
\n    time, but in phases, the first phase having started with
\n    the take over of the institute.  This, in short, is\t the
\n    scheme of the Act.\n<\/p>\n
     p. 232, it is held as under :-\n<\/p>\n
    “The contention made on behalf of the petitioner-Society
\n    is\t wholly\t misconcieved.\t The  Ordinances  were\t not
\n    promulgated\t and the Act was not passed for the  purpose
\n    of\tnationalisation\t of  the  Institute  only.    It  is
\n    apparent  from the provisions of the Ordinances and\t the
\n    Act that the private educational institutions as defined
\n    there  in  are  to\tbe taken over  for  the\t purpose  as
\n    mentioned in the Preambles to the Ordinances and the Act
\n    in\ta phased manner.  All the institutions which  answer
\n    the description as given in Section 2(a)<\/a> of the Act\t are
\n    to\tbe nationalised.  It is, therefore, not\t correct  to
\n    say\t that  the Institute has been singled  out  for\t the
\n    purpose of nationalisation.\n<\/p>\n
    There  can be no doubt that when nationalisation has  to
\n    be done in a phased manner, all the institutions  cannot
\n    be\ttaken  over  at a time.\t The  nationalisation  in  a
\n    phased manner contemplates that by and by the object  of
\n    nationalisation  will  be  taken  over.   Therefore,  in
\n    implementing the nationalisation of private institutions
\n    in a phased manner, the Legislature has started with the
\n    Institute.\tTherefore, the question of singling out\t the
\n    Institute  or treating it as a class by itself  does  no
\n    arise,  for as the provisions of the Act the  Ordinances
\n    go, all the private educational institutions, as defined
\n    in\tsection\t 2(a)<\/a> of the Act will be nationalised  in  a
\n    phased manner”.\n<\/p>\n
    @ p.325-26 it is held thus :-\n<\/p>\n
    “It\t is submitted that this fact demonstrates  that\t the
\n    professed object of nationalisation in phases is a\tmere
\n    pretence and a
\n\t\t\t\t\t\t  974<\/span>
\n\t colourable  device to single out the Institute\t for
\n\t discriminatory\t treatment.  The taking over of\t the
\n\t Institute  is an act of legislation and not an\t act
\n\t of  the Government.  The question to be  considered
\n\t is  whether  at the time when the  Ordinances\twere
\n\t promulgated  or  the  Act  was\t passed,  the\tsame
\n\t suffered the vice of discrimination or not.   There
\n\t can  be  no doubt that on the date  the  Ordinances
\n\t were  promulgated and the Act was passed, the\tsame
\n\t could\tnot  be\t challenged on the  ground  of\tnon-
\n\t implementation\t  of  the  legislative\t intent\t  in
\n\t nationalising\tsimilar institutes by  amending\t the
\n\t Schedule.   If\t a legislative enactment  cannot  be
\n\t challenged  as\t discriminatory on the\tdate  it  is
\n\t passed,   it is difficult to challenge the same  as
\n\t violative of Article 14<\/a> of the Constitution on\t the
\n\t ground of inaction of the executive in implementing
\n\t the  purpose  of the Act, regard being had  to\t the
\n\t fact that it was the Legislative which had made the
\n\t selection  for the first phase of  nationalisation.
\n\t If   no  such\tselection  had\tbeen  made  by\t the
\n\t Legislature  and the entire thing had been left  to
\n\t the  discretion  of the Government, it\t might\thave
\n\t been\tpossible   to  contend\t of   discriminatory
\n\t treatment.   The respondent’s have, however,  given
\n\t an explanation for not including the other  similar
\n\t institutions  in the programme of  nationalisation,
\n\t to be precise, in the Schedule to the Act”.
\n     While we are on this case, we have got to deal with the
\narguments  of Mr. Kapil Sibal, who bases his  submission  on
\nthe extract from the pages 325-326 that the relevant date to
\ndetermine  arbitrariness is the date of enactment.   On\t the
\ndate  if the first respondent alone is affected it would  be
\narbitrary and violative of Article 14<\/a>, so proceeds argument.\n<\/p>\n
     We\t are unable to agree with this argument.  No  doubt,
\nin this case Lalit Narayan Mishra Institute alone was  taken
\nover  by  the Legislature.  That was  the  only\t institution
\naffected  thereby.   Inspite  of this the  Court  held\tthis
\nenactment   is\tnot  violative\tof  Article  14<\/a>,  since\t the
\ninstitution  of like nature would fall within the  ambit  of
\nthe   statute,\tnotwithstanding\t the  fact  that  only\t one
\ninstitute  has been specified in the schedule.\tThe  attempt
\nof  the\t learned counsel for the first respondent  that\t all
\nthese\tcases  legislative  intervention  became   necessary
\nbecause there were some other reasons namely,  mismanagement
\nrequiring taking over the banks and temples etc.
\n\t\t\t\t\t\t  975<\/span>
\nand therefore, the single person’s legislation was upheld is
\nnot  tenable.\tWe  also hold that in order  to\t justify   a
\nlegislation  of this character, no  extraordinary  situation
\nneed  be  disclosed.   The contention that this\t is  not  in
\nfurtherance  of\t the  legislative  object,  cannot  also  be
\naccepted   because  it\thas  already  been  seen  that\t the
\nlegislative object is to introduce as age of superannuation.
\nBeyond\tthis nothing more need be established by the  State.
\nThe possibility of this legislation applying to one or\tmore
\npersons\t exists\t in  principle.\t  The  fact  that  only\t one
\nindividual came to be affected cannot render the legislation
\narbitrary  as  violative  of Article 14.<\/a>   This\t is  because
\nSection\t 3<\/a>  is\tgeneral in terms and the  incidence  of\t its
\napplying  to one individual does not render the\t legislation
\ninvalid.\n<\/p>\n
     The  theory  advanced by the learned  counsel  for\t the
\nfirst  respondent that there must be mismanagement  or\tsome
\nextraordinary  situation  to warrant a\tlegislation  of\t its
\ncharacter also does not seem to be correct as seen from\t The
\nAtlas  Cycle  Industries  Ltd., Sonepat\t v.  Their  Workmen<\/a>,
\n[1963] 3 S.C.R. Suppl. 89 @ 103-4, it is held thus :-
\n\t “Lastly,  it is contended that the transfer of\t the
\n\t proceedings pending before the old Tribunal to\t the
\n\t new  Tribunal under the Notification dated  October
\n\t 31, 1957, was invalid and inoperative.\t Two grounds
\n\t were  urged in support of this contention.  One  is
\n\t that  Shri A.N. Gujral attained the age  of  sixty-
\n\t five on June 4, 1957, and his term of office  would
\n\t have  then  expired under s.7C.   Then\t the  Punjab
\n\t Legislature  enacted Act 8 of 1957 raising the\t age
\n\t of  retirement\t under s.7C(b)\tfrom  sixty-five  to
\n\t sixty-seven.  That was with a view to continue Shri
\n\t A.N.  Gujral in office.  And this legislation\tcame
\n\t into  force only on June 3, 1957.  This Act<\/a>, it  is
\n\t said offends Art. 14<\/a> as its object was to benefit a
\n\t particular  individual,  Shri\tA.  N.\tGujral,\t and
\n\t reference  was made to a decision of this Court  in
\n\t Ameeroonissa\tv.   Mehboob  as   supporting\tthis
\n\t contention.  There is no force in this\t contention.
\n\t There the legislation related to the estate of\t one
\n\t Nawab Waliudduoula, and it provided that the claims
\n\t of Mehboob Begum and Kadiran Be gum, who claimed as
\n\t heirs\tstood  dismissed thereby and  could  not  be
\n\t called\t in question in any court of law.  And\tthis
\n\t Court held that it was repugnant to Art. 14<\/a>, as  it
\n\t singled out individuals and denied them the right
\n\t\t\t\t\t\t       976<\/span>
\n\t which\tother citizens have of resort to a court  of
\n\t law.  But the impugned Act. 8 of 1957 is of general
\n\t application,  the age being raised  to\t sixty-seven
\n\t with  reference to all persons holding\t the  office
\n\t under\tthat section.  The occasion  which  inspired
\n\t the enactment of the statute might be the impending
\n\t retirement of Shri A.N. Gujral.  But that is not  a
\n\t ground\t for holding that it is\t discriminatory\t and
\n\t contravenes  Art. 14<\/a>, when it is, on its terms,  of
\n\t general application”.\n<\/p>\n
     The  attempt to distinguish this case that it  was\t one
\nwherein\t a  benefit of extension was conferred\tand  that  a
\nnumber\tof industrial adjudications were pending  cannot  be
\naccepted.\n<\/p>\n
     However,  strong  reliance is placed on D.S.  Reddy  v.
\nChancellor, Osmania  University & Ors<\/a>, [1967] 2 S.C.R. 214 @\n<\/p>\n
223.  The facts of this case require to be noted they can be
\nculled from the headnote as under :-\n<\/p>\n
\t “As a result of the Osmania University\t (Amendment)
\n\t Act  II of 1966, s.12(1) of the Osmania  University
\n\t Act,\t1959,  was  amended  to\t provide   for\t the
\n\t appointment   of   the\t Vice  Chancellor   by\t the
\n\t Chancellor  alone;  in\t s.12(2)  a  provision\t was
\n\t introduced  whereby he could only be  removed\tfrom
\n\t office by an order of the Chancellor passed on\t the
\n\t ground of misbehaviour or incapacity after  enquiry
\n\t by  a person who was or had been a Judge of a\tHigh
\n\t Court\tor  the\t Supreme Court and  after  the\tVice
\n\t Chancellor had been given an opportunity of  making
\n\t his  representation  against such  removal  Section
\n\t 13(1)<\/a>\tof  the 1959 Act was also amended so  as  to
\n\t reduce\t  the term of office of the Vice  Chancellor
\n\t from 5 to 3 years.\n<\/p>\n
\t The 1959 Act was again amended later in 1966 by the
\n\t Osmania  University  (Second Amendment) Act  XI  of
\n\t 1966.\tSection 5<\/a> of this amending Act introduced  a
\n\t new  s.  13A<\/a>  into  the 1959  Act  whereby  it\t was
\n\t provided that the person then holding the office of
\n\t Vice  chancellor was appointed; and that  such\t new
\n\t appointment  must  be made within 90  days  of\t the
\n\t commencement  of  the Act whereupon  the  old\tVice
\n\t Chancellor would cease to hold Office.\n<\/p>\n
\t\t\t\t\t\t     977<\/span><\/p>\n
\t The appellant filed a writ petition claiming, inter
\n\t alia,\t that  s.5  of\tthe  second   amending\t Act
\n\t introducing  the  new s.13A was  discriminatory  as
\n\t against him and therefore violative of Art. 14.<\/a> The
\n\t High Court dismissed the petition.\n<\/p>\n
\t In  the  appeal  to  the  Supreme  Court,  it\t was
\n\t contended on behalf of the respondents that as\t the
\n\t term  of office had been reduced to 3 years by\t the
\n\t first\tamending Act, the legislature, in  order  to
\n\t give  effect to this provision and to enable  fresh
\n\t appointments to be made under the Act, had  enacted
\n\t s.13A which had, necessarily, to apply to a  person
\n\t like  the appellant who was in office at  the\ttime
\n\t when\tthe  provisions\t came  into   force.\tSuch
\n\t provisions  could  not, in the\t nature\t of  things,
\n\t apply to Vice chancellors who were to be  appointed
\n\t in future; the appellant was appointed from a panel
\n\t submitted  by\ta committee  constituted  under\t the
\n\t unamended  s.12(2) whereas future Vice\t Chancellors
\n\t were  to  be  appointed by  the  Chancellor  alone;
\n\t furthermore,  the  appellant  had  been  the\tVice
\n\t Chancellor  for  7 years.  Having regard  to  these
\n\t circumstances\tthe legislature had chosen to  treat
\n\t the  appellant\t as  a\tclass  by  himself  and\t had
\n\t differentiated\t him  from persons to  be  appointed
\n\t Vice\tChancellors  in\t the  future;\t that\tsuch
\n\t classification\t was reasonable and had\t a  rational
\n\t relation  to the object sought to be\tachieved  by
\n\t the   second  amending\t Act  i.e.  bringing   about
\n\t uniformity  in the tenure of 3 years of office\t for
\n\t all  Vice Chancellors; that the appellant  was\t not
\n\t entitled  to  the  benefits  of  s.12(2)  and\t the
\n\t legislature  was competent to enact s.13A so as  to
\n\t give  effect to the amended provisions as early  as
\n\t possible”.\n<\/p>\n
\t @ p. 229-230, it is held :-\n<\/p>\n
\t “We  have  already  stated that the  appellant\t was
\n\t appointed  under the Act, for a further term  of  5
\n\t years,\t as Vice Chancellor, on April 30, 1964,\t and
\n\t he  was continuing in office, as such, at the\ttime
\n\t when  the  two\t Amending  Act<\/a>s\t were  passed;\tand,
\n\t normally, he would be entitled to continue in\tthat
\n\t post  for the full term, which will expire only  at
\n\t the  end of April, 1969.  The First  Amendment\t Act
\n\t provided,  in\ts.12  of  the  Act,  that  the\tVice
\n\t Chancellor  is to be appointed by  the\t Chancellor;
\n\t but s.12(2)
\n\t\t\t\t\t\t     978<\/span>
\n\t specifically  provided\t that  the  Vice  Chancellor
\n\t shall\tnot be removed from his office except by  an
\n\t order\tof  the Chancellor passed on the  ground  of
\n\t misbehaviour  or incapacity and, after due  inquiry
\n\t by  such  person who is, or has been, a Judge\tof a
\n\t High  Court  or  the  Supreme\tCourt,\tas  may\t  be
\n\t appointed by the Chancellor.  It was also  provided
\n\t that the Vice Chancellor was to have an opportunity
\n\t of making his representation against such  removal.
\n\t Prima facia, the provisions contained in  sub.s.(2)
\n\t of  s.12 must also apply to the appellant, who\t did
\n\t continue  in office even after the passing  of\t the
\n\t First Amendment Act. No doubt the term of office of
\n\t the  Vice  Chancellor was fixed at  3\tyears  under
\n\t s.13(1) of the Act.  But no provisions were made in
\n\t the  First Amendment Act regarding the\t termination
\n\t of the tenure of office of the Vice chancellor\t who
\n\t was then holding that post.\n<\/p>\n
\t There\tcan be no controversy that s.13A  introduced
\n\t bys.5 of the Second Amendment Act<\/a>, deals only\twith
\n\t the appellant.\t In fact, the stand taken on  behalf
\n\t of  the respondents in the counter affidavit  filed
\n\t before\t the High Court, was to the effect that\t the
\n\t Legislature had chosen to treat the Vice Chancellor
\n\t holding  office at the time of commencement of\t the
\n\t Second\t Amendment  Act<\/a>, as a class by\thimself\t and
\n\t with a view to enable the Chancellor to make  fresh
\n\t appointments,\ts.13A of the Act<\/a> was enacted.
\n\t Therefore,  it is clear that s.13A applies only  to
\n\t the  appellant.   Though  no  doubt,  it  has\tbeen
\n\t stated,  on behalf of the respondent, that  similar
\n\t provisions  were  incorporated, at about  the\tsame
\n\t time,\tin  two other Acts, relating  to  two  other
\n\t Universities  viz., the Andhra University  and\t the
\n\t Sri   Venkateswara  University,  and  though\tthis
\n\t circumstance  has also been taken into\t account  by
\n\t the  learned  Judges  of the  High  Court,  in\t our
\n\t opinion,  those  provisions  have  no\tbearing\t  in
\n\t considering the attack levelled by the appellant on
\n\t s.13A of the Act<\/a>.\n<\/p>\n
\t This  is  a  clear case where\tthe  statute  itself
\n\t directs  its provisions by enacting s.13A,  against
\n\t one  individual, viz. the appellant; and before  it
\n\t can  be  sustained  as valid, this  Court  must  be
\n\t satisfied
\n\t\t\t\t\t\t     979<\/span>
\n\t that  there is a reasonable basis for grouping\t the
\n\t appellant  as\ta  class by himself  and  that\tsuch
\n\t reasonable basis must appear either in the  statute
\n\t itself or must be deducible from other\t surrounding
\n\t circumstances.\t  According to learned\tcounsel\t for
\n\t the appellant, all Vice Chancellors of the  Osmania
\n\t University   come  under  one\tgroup  and  can\t  be
\n\t classified only as one unit and there is absolutely
\n\t no  justification for grouping the appellant  under
\n\t one class and the Vice Chancellors to be  appointed
\n\t in  future under a separate class.  In any  event,.
\n\t it  is also urged that the said classification\t has
\n\t no   relation\tor  nexus  to  the  object  of\t the
\n\t enactment.\n<\/p>\n
\t @  p. 230-231, it is observed as under :-\n<\/p>\n
\t “We  are inclined to accept the contention  of\t Mr.
\n\t Setalvad,  that there is no justification  for\t the
\n\t impugned legislation resulting in a  classification
\n\t of  the Vice Chancellors into two categories,\tviz.
\n\t the appellant as the then existing Vice  Chancellor
\n\t and  the  future Vice Chancellors to  be  appointed
\n\t under\tthe  Act.\n<\/p>\n
\t In our view, the Vice Chancellor, who is  appointed
\n\t under\tthe  Act,  or the Vice\tChancellor  who\t was
\n\t holding  that post on the date of the\tcommencement
\n\t of the Second Amendment Act<\/a>, from one single  group
\n\t or class.  Even assuming that the classification of
\n\t these\ttwo  types of persons as  coming  under\t two
\n\t different  groups can be made nevertheless,  it  is
\n\t essential  that  such\ta  classification  must\t  be
\n\t founded   on  an  intelligible\t differentia   which
\n\t distinguishes\t the   appellant   from\t  the\tVice
\n\t Chancellor  appointment under the Act.\t We are\t not
\n\t able  to find any such intelligible differentia  on
\n\t the  basis  of\t which\tthe  classification  can  be
\n\t justified.\n<\/p>\n
\t “While\t a Vice Chancellor  appointed under s.12  of
\n\t the Act can be removed from office only by adopting
\n\t the  procedure under s.12(2), the services  of\t the
\n\t appellant,  who  was  also a  Vice  Chancellor\t and
\n\t similarly  situated, is sought to be terminated  by
\n\t enacting  s.13A  of  the Act<\/a>.\tWe do  not  see\t any
\n\t policy\t  underlying   the   Act   justifying\tthis
\n\t differential  treatment accorded to the  appellant.
\n\t The term of office of the Vice Chancellors has been
\n\t\t\t\t\t\t  980<\/span>
\n\t no doubt reduced under the First Amendment Act\t and
\n\t fixed\tfor  3 years for all the  Vice\tChancellors.
\n\t But,  so  far\tas the appellant  is  concerned,  by
\n\t virtue of s.13A of the Act<\/a>, he can continue to hold
\n\t that  office  only until a new Vice  Chancellor  is
\n\t appointed  by the Chancellor, and that\t appointment
\n\t is to be made within 90 days.\tWhile all other Vice
\n\t Chancellors, appointed under the Act, can  continue
\n\t to  be in office for a period of three\t years,\t the
\n\t appellant is literally forced out of his office  on
\n\t the   expiry\t of  90\t days  from  the   date\t  of
\n\t commencement of the Second Amendment Act<\/a>.  There is
\n\t also no provision in the statute providing for\t the
\n\t termination   of   the\t  services   of\t  the\tVice
\n\t chancellors,  who are appointed under the  Act,  in
\n\t the  manner  provided under s.13A of the  Act<\/a>.\t  By
\n\t s.13A,\t the appellant is even denied  the  benefits
\n\t which may be available under the provision to\tsub-
\n\t s.(1)\tof  s.13  of  the  Act,\t which\tbenefit\t  is
\n\t available to all other Vice chancellors.”
\n     It\t will  be clear from the above extract\ton  its\t own
\nterms  the  legislation applied only to one  individual\t and
\nnobody else, even in principle, to a future Vice Chancellor.
\nThere was no basis for making a distinction between the then
\nexisting  Vice Chancellor and the future  Vice\tChancellors,
\nwho  are to be treated differently.  Further,  the  existing
\nVice Chancellor was subject to a disability for which  there
\nwas no rational basis.\n<\/p>\n
     As\t a  matter  of fact, this ruling  had  come  up\t for
\ndiscussion  in\tLalit Narayan Mishra Institute\tof  Economic
\nDevelopment and Social Change, Patna, etc. v. State of Bihar
\nand Others etc., [1988] 3 S.C.R. 311 @ 322 it is ruled :-
\n\t “The  other decision that has been relied  upon  by
\n\t the petitioner is B.S. Reddy v. Chancellor, Osmania
\n\t University<\/a>,  [1967]  2 SCR 214.  What happened\t  in
\n\t that  case  was  that\tsection\t 5  of\tthe  Osmania
\n\t University (Second Amendment) Act, 1966  introduces
\n\t into the Osmania University Act, 1959 a new section
\n\t 13A<\/a>  whereby it was provided that the\tperson\tthen
\n\t holding  the office of the Vice Chancellor  of\t the
\n\t University could only hold that office until a\t new
\n\t Vice  Chancellor was appointed, and that  such\t new
\n\t amendment  must  be  made within  90  days  of\t the
\n\t commen-\n<\/p>\n
\t\t\t\t\t\t     981<\/span><\/p>\n
\t cement of the said amendment Act whereupon the\t old
\n\t Vice Chancellor would cease to hold the office.  It
\n\t was   held  by\t this  Court  that  there   was\t  no
\n\t justification\tfor the impugned  legislation,\tthat
\n\t is,  the provision of section 13A<\/a>, resulting  in  a
\n\t classification\t of  the Vice Chancellors  into\t two
\n\t categories,  namely, the appellant as the  existing
\n\t Vice Chancellor and the future Vice Chancellors  to
\n\t be appointed under the Osmania University Act.\t  It
\n\t was held that both these categories constituted one
\n\t single group of class, and that even assuming\tthat
\n\t the classification of these two types of persons as
\n\t coming\t under two different groups could  be  made,
\n\t nevertheless,\t it  was  essential  that   such   a
\n\t classification\t must be founded on an\tintelligible
\n\t differentia  which would distinguish the  appellant
\n\t from  the  Vice  Chancellors  appointed  under\t the
\n\t Osmania University Act.  The Court held that  there
\n\t was  no  intelligible differentia on the  basis  of
\n\t which the classification could be justified.”
\n\t The  situation\t in  the case in  hand\tis  entirely
\n\t different.\n<\/p>\n
     (Ameerunnissa  Begum  and Others v. Mehboob  Begum\t and
\nOthers<\/a>,\t [1953] S.C.R. (404) Ameerunnissa’s case is  clearly
\ndistinguishable.    The\t reason is  the\t impugned  enactment
\nexcluded an particular set of persons viz., heirs of  Nawab.
\nThey  were  even denied access to Court to  ventilate  their
\ngrievances.   Secondly, it was a named legislation.   Though
\nfor apparent purposes it deals with specifically the  wife’s
\nclaims of succession.  Lastly, we will deal with Ram  Prasad
\nNarayan\t Sahi and Another v. The State of Bihar and  Others<\/a>,
\n[1953] S.C.R.  1129 @ 1132-33, it is held as under :-
\n\t “The  decision\t of the majority of  this  Court  in
\n\t Chiranjit Lal v. The Union of India<\/a> is relied on in
\n\t support  of  these  contentions.   In\tthat   case,
\n\t however,  the majority felt justified in  upholding
\n\t the  legislation, though it adversely affected\t the
\n\t rights\t and  interest\tof  the\t shareholders  of  a
\n\t particular   joint  stock  company,   because\t the
\n\t mismanagement\t  of\tthe    company’s     affairs
\n\t prejudicially\t affected  the\tproduction   of\t  an
\n\t essential commodity and caused serious unemployment
\n\t amongst  a section of the community.\tMr.  Justice
\n\t Das  and I took the view that legislation  directed
\n\t against  a particular named person  or\t corporation
\n\t was
\n\t\t\t\t\t\t       982<\/span>
\n\t obviously    discriminatory\tand    could\t not
\n\t constitutionally   be\t justified  even   if\tsuch
\n\t legislation resulted in some benefit to the public.
\n\t In  a system of Government by political parties,  I
\n\t was apprehensive of the danger inherent in  special
\n\t enactments which deprive particular named person of
\n\t their\tliberty or property because the\t Legislature
\n\t thinks\t them guilty of misconduct, and said in\t may
\n\t dissenting opinion :\n<\/p>\n
\t “Legislation  based  upon  mismanagement  or  other
\n\t misconduct  as the differentia and made  applicable
\n\t to a specified individual or corporate body is\t not
\n\t far   removed\tfrom  the  notorious   parliamentary
\n\t procedure formerly employed in Britain of punishing
\n\t individual   delinquents   by\tpassing\t  bills\t  of
\n\t attainder, and should not, I think receive judicial
\n\t encouragements.\n<\/p>\n
     It has to be carefully noted that this Act was intended
\nto deny the appellant a right to decision by a court of\t law
\nand  that  too\tin a private dispute  between  the  parties.
\nHence, this ruling again has no application to the facts  of
\nthe case.  As we observed in the beginning of the  judgment,
\nif  the\t State\tis  well entitled to  introduce\t an  age  of
\nsuperannuation\t(we  have  referred  to\t [1985]\t 2  SCR\t 579
\nNagaraja’s case), how could that be called discrimination or
\nunreasonable ? The resultant conclusion is the amending Act,
\nparticularly,  Section 3<\/a> is not, in any way, arbitrary\tand,
\ntherefore, not violative of Article 14.<\/a>\n<\/p>\n
     Whether the failure to implead  Chauhan  would be fatal
\nto the Writ Petition?\n<\/p>\n
     The  contention of Mr. Shanti Bhushan that the  failure
\nto  implead Chauhan will be fatal to the writ petition\tdoes
\nnot  seem  to be correct.  He relies on A.I.R.\t1979  Kerala\n<\/p>\n
179.   That  case related to admission\tto  medical  college
\nwhereby\t invalidating the selection vitally  affected  those
\nwho  had been selected already.\t Equally, the  case  Padmraj
\nSamrendra and others v. State of Bihar and Anr<\/a>., A.I.R. 1979
\nPatna  266  has no application.\t This was a case  where\t the
\nplea was founded in Article 14<\/a> and arbitrary selection.\t The
\nselectees were vitally affected.  The plea that the decision
\nof the court in the absence of Chouhan would be violative of
\nprinciple  of natural justice as any adverse decision  would
\naffect him is not correct.\n<\/p>\n
\t\t\t\t\t\t  983<\/span><\/p>\n
     On the contrary, we think we should approach the matter
\nfrom  this  point  of view, viz.,  to  render  an  effective
\ndecision  whether the presence of Chauhan is necessary?\t  We
\nwill  in this connection refer to A. Janardhana v. Union  of
\nIndia  and Others<\/a>, [1983] 3 S.C.C. 601, @ para 36 it is\t held
\nas under:-\n<\/p>\n
\t “…Approaching the matter from this angle, it\t may
\n\t be  noticed that relief is sought only against\t the
\n\t Union of India and the concerned  Ministry and\t not
\n\t against any individual nor any seniority is claimed
\n\t by   any   one\t individual  and   against   another
\n\t particular   individual  and  therefore,  even\t  if
\n\t technically the direct recruits were not before the
\n\t court,\t the petition is not likely to fail no\tthat
\n\t ground”.\n<\/p>\n
     What   was\t the first respondent seeking  in  the\twrit
\npetition?  He was questioning the validity of the  Ordinance
\nand  the  Act whereby he had been deprived  of\this  further
\ncontinuance.   What  is the relief could be have  asked\t for
\nagainst Chauhan?  None.\t The first point is Chauhan came  to
\nbe  appointed  consequent  to the suspension  of  the  first
\nrespondent  which  suspension had come to be stayed  by\t the
\nHigh  Court on 12.6.90.\t Then, again, as pointed out by\t the
\nHigh Court it was “till further orders”.  Therefore, we hold
\nthe   failure  to  implead  Chauhan  does  not\taffect\t the
\nmaintainability of the writ petition.\n<\/p>\n
     One  postscriptum needs to be added.  It was argued  on
\nthe  basis of Pritam Singh v. The State<\/a>, [1950]\t S.C.R.\t 453
\nthat unless the court comes to the conclusion that the\tHigh
\nCourt is palpably wrong, it should not interfere.  No doubt,
\nthe  same  principle  is stated in Union of  India  v.\tM.P.
\nSingh<\/a>,\t[1990]\t(Suppl.)  S.C.C.  701  that  if\t substantial
\njustice\t is done the interference under Article 136<\/a>  is\t not
\nwarranted.  We\tdo not think this principle  will  have\t any
\napplication.\n<\/p>\n
     There is no denying the fact that the first  respondent
\nhad
\n\t  “battled with great grief and fears and borne\t the
\n\t  conflict of dream shattering years.”\n<\/p>\n
     But  the State says that this is a case of “much  of  a
\nmuchness”  in  the  words  of Sir  John\t Vanbrugh  (in\t“The
\nProvoked Husband”).\n<\/p>\n
\t\t\t\t\t\t  984<\/span><\/p>\n
     How  do we balance these claims except to\texamine\t the
\nmatter\tin the light of the law and quote Horace:  ”  tempus
\nabire tibi est” (“time you were off”).\n<\/p>\n
     In the light of the above discussion, it  follows\tthat
\nthe  appellant\tis  entitled to succeed.  We  hold  that  on
\n13.7.90\t the  first  respondent’s right to  hold  office  as
\nChairman\/Member\t of Himachal Pradesh Electricity Board\tcame
\nto  end.  The impugned judgment of the High Court in  C.W.P.
\nNo.  396 of 1990 dated 12th July, 1991 is hereby set  aside.
\nThe appeal will stand allowed.\n<\/p>\n
     However,  as  repeatedly stated by Mr.  Shanti  Bhushan
\nduring the course of the arguments that the State is willing
\nto  provide  compensation for the remaining  period  of\t the
\ntenure, we direct the State to pay the first respondent\t the
\nsalary, allowances and perks for the period commencing\tfrom
\n13.7.90 upto 25.7.92, had he continued in office but for the
\nimpugned  legislation.\t If  any payment has  been  made  by
\ninterim\t orders\t of  the  court that  will  go\ttowards\t the
\ndeduction of this liability.\n<\/p>\n
     In view of the peculiar facts and circumstances of\t the
\ncase, there will be no order as to costs.\n<\/p>\n
V.P.R.\t\t\t\t\t     Appeal allowed.\n\t\t\t\t\t\t  985<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Himachal Pradesh And Anr vs Kailash Chand Mahajan And Ors on 20 February, 1992 Equivalent citations: 1992 AIR 1277, 1992 SCR (1) 917 Author: S Mohan Bench: Mohan, S. (J) PETITIONER: STATE OF HIMACHAL PRADESH AND ANR. Vs. RESPONDENT: KAILASH CHAND MAHAJAN AND ORS. DATE OF JUDGMENT20\/02\/1992 BENCH: MOHAN, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249214","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Himachal Pradesh And Anr vs Kailash Chand Mahajan And Ors on 20 February, 1992 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-and-anr-vs-kailash-chand-mahajan-and-ors-on-20-february-1992\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Himachal Pradesh And Anr vs Kailash Chand Mahajan And Ors on 20 February, 1992 - 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