STATE OF HIMACHAL PRADESH AND ANR. v. KAILASH CHAND MAHAJAN AND ORS.

The Judgment of the Court was delivered by B MOHAN, J. The facts relating to the Civil Appeal are as under:-

The first respondent (Mr.Kailash Chand Mahajan) retired from the post of Chief Engineer from the State of Punjab. On 24.7.81, he was -/; C appointed as a member of Himachal Pradesh State Electricity Board and . thereafter appointed as Chairman of the said board for a period of two years. On 13.8.82, the following notification came to be issued :-

"No. 8-155173-DP (Apptt. II) Dated Shimla- 2, the 13th Aug. 1982

D NOTIFICATION

In exercise of the powers conferred by Section 5 of the Electricity (Supply) Act, 1948, the Governor, Himachal Pradesh, is pleased to appoint Shri Kailash Chand, Retd. Chief Engineer (Irrigation) Punjab, whose ap- pointment as Member, H.P.State Electricity Board, has been notified vide E Notification of even number, dated the 24th July, 1981, as Chairman, H.P. State Electricity Board for a period of five years, with effect from 25th July,

1981. Detailed terms and conditions of his appointment has already been issued separately.

F This is in supersession of this deptt. Notification of even number, dated the 24th July, 1981.

By Order K.C.Pandeya Chief Secretary to the G Government of Himachal Pradesh"

On 12.⁵.86, the term as Chairman was extended for another period of three years in the following terms :-

H "No. 8-155/73 - DP (Apptt. II), dated Shimla 2, the 12th May, 1986. " [

p. 931 Copy page pinpoint

Notification A

In continuation of this Department's Notification of even num- ber, dated 13.8.1982, the Governor, Himachal Pradesh is pleased to extend the appointment of Shri Kailash Chand Mahajan as Chairman of the H.P.State Electricity Board for a further period of three years with effect from 25th July, 1986, B on the existing terms and conditions of his appointment as Chairman. By Order (P.K.Mattoo) c Chief Secretary to the Government of Himachal Pradesh". There was a further extension on 12.6.89 for a period of 3 years and that notification reads as under :-

"No. 8-155/73 - DP (Apptt. II) dated Shimla -2 the 12th June, 1989. D

Notification

In continuation of this Department's Notification of even num- E ber, dated 12th May, 1986, the Governor, Himachal Pradesh is pleased to extend the appointment of Sh. Kailash Chand Mahajan as Chairman of the H.P.State Electricity Board for a further period of three years with effect from 25th July; 1989, on the existing terms and conditions of his appointment as Chairman. F

2. The Governor, Himachal Pradesh is further pleased to order that Shri Kailash Chand Mahajan, Chairman, H.P. State Electricity Board shall also continue to function as Secretary (M.P.P. and Power) to the Govern- ment of Himachal Pradesh. G By Order . (B.C.Negi)

Chief Secretary to the Government of Himachal Pradesh. H

p. 932 Copy page pinpoint

A Therefore, it is obvious that the appointment was to continue upto 25.7.92.

In January, 1990, elections to the Legislative Assembly of the State of Himachal Pradesh were scheduled to take place. The respondent in his affidavit would aver that the third respondent (i.e. Mr. Shanta Kumar, the B Chief Minister of Himachal Pradesh) is alleged to have made speeches that should he come to power he would have the first respondent removed from the chairmanship of the Electricity Board. On 5.3.90, the third respondent became the Chief Minister. A notification dated 6.3.90, came to be issued in supersession of the notification dated 12.6.89 that the appointment of c the first respondent as Chairman of the Himachal Pradesh State Electricity Board is extended from 25.7.89 to 6.3.90.

Another notification dated 6.3.90 was issued direct.ing that Mr. R.S.S.Chauhan shall function as Chairman, H.P. State Electricity Board D w.c.f. 7.3.90. At this stage .the first respondent preferred a Writ Petition No., 123/90 challenging the validity of the notification dated 6.3.90, and prayed for certiorari to quash the same. While that writ petition was pending, on 10.3.90, another notification was issued terminating the ap- (· pointment of the first respondent as Member of the State Electricity Board.

E On 30.3.90, the High Court while admitting the writ petition (CWP No. 123 of 1990) ordered that no appointment to the post of Chairman of the State Electricity Board will be made till further orders of the Court. The matter was heard on 22.⁵.90. The learned Advocate General on conclusion of his argument requested the court that the judgment may"not F be pronounced since he desired to seek instructions from the Government to reconsider the impugned order in CWP No.123 of 1990. On 11.6.90, the ·( learned Advocate General submitted to the court that both the notifica- tions dated 6.3.90 and 30.3.90 would be withdrawn. An undertaking to that effect was given. Accordingly the writ petition was disposed of. Conse- quent to this undertaking, by· notification dated 11.6.90, the Government of G Himachal Pradesh withdrew both the notifications dated 6.3.90 and 30.3.90. However, the matter did not rest there. On 11.6.90, a show cause notice was issued to the first respondent for having abused his position as Chair- man, H.P. State Electricity Board and also ex,officio Secretary, M.P.P. & Power. lie was also asked to submit his explanation within 21 days as to H why action should not be taken under Section 10 of the Electricity (Supply)

ST\TE v. K.C. MAHAJAN [MOHAN, J.] 933

Act, 1918. Simultaneously, it was also ordered that he shall be placed A ~nder suspension with immediate effect by virtue of power under Section 10 of the said Act. Consequent upon the suspension of the first respon- dent, the notification dated 16th July, 1990 came to be issued placing Mr. R.S.S.Chauhan, Member (Operations), HP State Electricity Board as Chairman with immediate effect until further orders. B Being aggrieved by the above show cause notice and the qrder of suspension, the first respondent filed CWP 303 of 1990 on 12.6.90. The High C.Jurt while admitting the writ petition granted interim stay of the order o:f suspension. c On 22.6.90, the Chief Secretary. of the Govt. of Himachal Pradesh wrote to the Secretary, Government of India, Ministry of Home Affairs, New Ddhi requesting for permission to promulgate Electricity (Supply H.P.Arrendmcnt) Ordinance, 1990. It was stated in the letter that at present no age limit has been prescribed for holding office of the Member D of the State Electricity Board, it was necessary to prescribe an upper age limit. The concept of terminal appointment at which a person should cease to hold judicial offices and civil posts is entrenched in administrative and constitutional system. Therefore, it was proposed through the ordinance that no person above the age of 65 years could be appointed and continued as Chaicman or Member of H.P. State Electricity Board. This provision was nol only to apply to future appointments, but also to the existing Chairman and Membersi and where the existing incumbcnt's tenure is curtailed adequate compensation could be provided. No doubt, rules could b" framed under Section 78 of the Electrity (Supply) Act, 1948. But those mies cannot have retrospective operations, hence the proposed ordinan:.:e.

On 9.7.90, the Government of India replied pomtmg out the desirability of the State Government examining with reference to the relevant provisions of the Act and the constitution about the promulgating the ordmance. The State was also advised to explore the feasibility of . amending the rules.

On 13.7.90, the Governor of Himachal Pradesh issued an ordinance, i.e·. H.P Ordinance 'Rule of 2/90, amending Section 5 (6) of the Electricity (Supply! Act. The ordinance reads to the following effect :- H

p. 934 Copy page pinpoint

A "AUTHQRITATIVE ENGLISH TEST". ,S::

H.P.ORDINANCE No ......... of 1990. THE ELECTRICITY (SUPPLY) (HJMACHAL PRADESH AMEND- MENT) ORDINANCE, 1990

B Promulgated by the Governor of Himachal Pradesh m the Forty- first year of the Republic of India.

· An Ordinance to amend the Electricity (Supply) Act, 1948 (Central Act No. 54 of 1948) in its application of the State of c Himachal Pradesh.

Whereas the Legislative Assembly of the State of Himachal Pradesh is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action; D And whereas instructions from the President of India to promulgate the Ordinance have been obtained; {- Now, therefore, in exercise of the powers conferred by clause E (1) of Article 213 of the Constitution of India, the Governor of Himachal Pradesh is pleased to promulgate the following Or- dinance:-

1Copy pinpoint1. This Ordinance may be called the Electricity (Supply) (Himachal Pradesh Amendment) Ordinance, 1990. F

2Copy pinpoint2. In Sub-section (6) of section 5 of the Electricity (Supply) i··- Act, 1948, for the words "if he is a member of parliament", the words "if he has attained the age of 65 years or is a member of Parliament" shall be substituted.

3Copy pinpoint3. (1) Notwithstanding anything to the contrary contained in any provisions of the Electricity (Supply) Act, 1948, rules, regulations or bye-laws made thereunder or in any judgment, decree or order of the Court, any appointment, made before the commencement of the Electricity (Supply) (Himachal H Pradesh Amendment) Ordinance, 1990, whereby a person has .,,.,.--

p. 935 Copy page pinpoint

a right to continue as a member of the Board after attaining A the age of 65 years, shall be void; and on such commencement he shall be deemed to have ceased to hold office of the Member of the Board.

(2) On ceasing to hold office of the member of the Board under sub-section (1), such member shall be entitled to a B compensation as may be determined by the State Government; but such compensation shall not exceed the amount equivalent to the amount of salary and allowances payable to him for his unexpired term. c B. Rachaiah ·Governor Shimla The ·········' 1990."

A:; a sequel to the issue of this ordinance, the following notification D was issued on 16.7.90 :-

"Government of Himachal Pradesh Department of Personnel (AP - II)

No. 8-155/71 - DP (Apptt. II) Dated, Shimla - 2, the 16th July, 1990. E

NOTIFICATION

Whereas as a result of promulgation of the Electricity (Supply) (Himachal Pradesh Amendment) Ordinance 1990, vide F Notification No. LLR-D (6) 8/90- Legislation dated 13th July, 1990, published in the Rajpatra dated 13th July, 1990, Shri Kailash Chand Mahajan, Chairman, H.P. State Electricity Board, having already attained the age of more than sixty-five, years, has ceased to be Member of the H.P .State Electricity Board and consequently Chairman of the said Board. G

NOW, THEREFORE, in exercise of the powers vested in him under sub-section (5) of section 5 of the. Electricity (Supplyj Act, 1948, the · Governor, Himachal Pradesh, is pleased to appoint Shri R.S.S.Chauhan, Member (Operation), H.P.State Electricity Board as Chairman o(1i\ie HP H

p. 936 Copy page pinpoint

A State. Electricity Board with immediate effect, till further orders.

By Order M.S.Mukherjce

Chief Secretary lo the B Govt. of Himachal Pradesh . . Aggrieved by the ordinance dated 13.7.90 and the above notification dated 16.7.90, the first respondent filed CWP No. 396 of 1990, praying for certiorari to quash the ordinance as well as the notifications. c Inter alia, the first respondent as writ petitioner before the High Court urged that there has been a deliberate attempt on the part of the State to gel rid of him through the ordinance. The same is violative of Articles 14 and 16 of the Constitution. In so far as he is the only person affected by the ordinance having crossed the age of 65, he had been singled D out for a total discriminatory treatment. It is a colourable exercise of power. While obtaining the consent of the President of India with regard to a subject falling under the Concurrent List, it was not even let known. that a writ petition was actually pending concerning the petitioner. There had been a deliberate concealment of facts. In any event, the Chief E Minister (who was the fourth respondent) was activated by malafides. He was determined to remove the writ petitioner, as he held out in the election meeting.

The State filed a detailed counter affidavit. The fourth respondent F (the Chief Minister) specifically denied the allegations of malafides and ur~ed that the ordinance came to be issued since a policy decision had been taken to intrpduce age of superannuation fixing the limit at 65. During the pendency of file writ petition, the ordinance came to be replaced by the Electricity (Supply) (Himachal Pradesh Amendment) Act, G 1990 (H.P. Act of 10 of 1990). Therefore, an application for amendment was taken out challenging the validity of the amending act. Before the High Court, the following points were urged :-

(i) malafides -

H (a) against the Chief Minister; and

STATE v. K.C. MAHAJAN [MOHAN, J.J 937

(b) against the legislature. A (ii) the act was unconstitutional and arbitrary. In that it had been passed to get rid of the petitioner, though a single person legislation was permissible in law, yet where the discrimination of the petitioner was wholly unjustified such a legislation would be bad in law. B

(iii) The enactment was void as violative of Article 254.

(iv) It was also violative of Article 21 as it damaged the reputation of the writ petitioner therein. c (v) Section 3(1) of the Ordinance/Act. renders a judgment of the court void and was unconstitutional as being excessive legislative powers in so far as it impinges upon the judicial field.

(vi) Inasmuch as the right" of the petitioner to continue as a D Member/Chairman of the Board had been taken away, it is violative of Article 19. The compensation provided under section 3(2) is vague and illusory.

(vii) Section 3(1) docs not apply to the petitioner at all .. E The Division Bench held that the evidence furnished by the petiti Jner in the form of newspaper reports would not be enough to hold that the Chief Minister had any personal bias. The legislature as a body eannc•t be accused of having passed a law for an extraneous purpose. Therefore, no ma/afides could be attributed to the legislature. F Dealing with the repugnancy it was held that by the impugned ordinonce of the Electricity (Supply) Act, an age of superannuation has been brought in. There was no such age prescribed by the Central Act. Therel"ore, there was no repugnancy.

By mere curtailment of the term as Chairman of the Board without G any mention about his inability or professional competence, so as lo affect his reputation in any manner, no injury had taken place so as to complain of violation of Article 21 of the Constitution. The pica of interference with judicial power was negatived. The pica of violation of Article 19 that the provision of compensation is illusory was negatived. H

p. 938 Copy page pinpoint

A On an elaborate consideration of violation of Article 14, the court after referring to the leading decisions of this court concluded that prescription of maximum age by the amending act at 65 years cannot be said to be arbitrary or irrational. Moreover public interest demands that there ought to be an age of retirement in public services.

B On the ancillary question whether the legislation had been enacted only with a view to get rid off the petitioner and ~hether it would be bad as a single person's legislation, it was held that there was nothing illegal about it. In relation to applicability of Section 3(1) of the amending act to the petitioner, the High Court construed tha.t Section 3(1) will apply only c to an appointment where a person has a right to continue after the attainment of 65 years. If, therefore, the petitioner had been appointed after he had attained the age of 65 years, he would not be affected by Section 3(1). Any contrary inference would not be justified by its language. · It was also held that when Section 5( 6) precluded the petitioner .from D "being a member" of the Board after he had attained 65 years of age, would not help the State as it would apply only prospectively. We may also refer to that particular argument advanced on behalf of the State that Mr. R.S.S.Chauhan having been appointed as Chairman, he ought to have been impleaded as a party. The court rejected the plea not only on the ground that he was not a necessary party, but also on the ground that his appoint - E ment was only "until further orders".

In the result, the notification dated July, 17, 1990 was quashed. It is under these circumstances, Special Leave Petition was preferred to the court. By an order dated 5th August, 1991, special leave was granted. F Hence, this Civil Appeal.

Mr. Sha_nti Bhushan, learned counsel appearing for the State of 1!I Himachal Pradesh after taking us through the orders of appointment and the extensions would urge that though the inapplicability of the Ordinance or Acts was not raised, the High Court had allowed the argument. In other words, it was never urged that the Ordinance/Act was not applicable to the first respondent. A bare reading of Section 2 which amended Section 5 (6) of the Electricity (Supply) Act and Section 3 of the amending act, both individually and conjoinly lead to the only conclusion that the Act dis- qualifies every person from holding office who ·an the date of enactment, namely, 13th July, 1990 is above 65 years.

p. 939 Copy page pinpoint

- In Election Commission, India v. Saka Venkata Subba Rao, [1953] S.C.R. ll44, it has been held on similar language occurring in the Constitu- tion that it postulates both existing and supervening disqualification. If it is the ,,vowed policy of the State to prescribe an age of sup~rarinuation, certainly nobody could have a legitimate complaint. In fact, there are identical State legislative enactments in Andhra Pradesh and Uttar Pradesh specifying an age of superannnuation. This court upheld such a prescrip- tion in several cases. Hence, the first respondent cannot complain that he. could continue indefinitely and others could be retired at the age of 65. F

Section 3 of the amending Act was given retrospective effect from 13.7.90. This Section presupposes an appointment prior to amendment, namely, prior to 13.7.90. In this case, the appointment gives a right to continue after attaining the age of 65 years. If, therefore, the two tests are answer.,d, the appointment is rendered void irrespective of the fact when G the appointment took place. The "Objects &. Reasons" of the Act put the matter beyond doubt. In our country, the concept of age of superannua- tion is ~ntrenched both in administrative as well as constitutional systems. Public policy requires to prescribe the age of 65 years for retirement of the members of Electricity Board as in the case of High Court Judges, mem- H

p. 940 Copy page pinpoint

A hers of tribunal and other high functionaries.

The High Court had gone wrong as though the appointment of the first respondent was not covered by Section 3(1) since the right to continue as Chairman was pursuant to an appointment after he had attained the age of 65 years. Factually this is incorrect because the appointment of the first respondent as Chairman was on 13.8.82. Thereafter the same appointment came to be extended from time to time. Each of those extensions cannot constitute a new appointment. It is one appointment which is being continued from time to time. Legally speaking, also, the reasoning of the High Court is wrong because it leads to unconstitutionality. In that case persons who attained the age of 65 years after the amending Act would be obliged to retire while the older persons like the first respondent would remain in office. This will clearly amount to discrimination. Thus either by way of Section 5(6) of the Electricity {Supply) Act, as amended or under Section 3(1) of the amending Act, the first respondent would cease to hold office. As a matter of fact, Section 3 has been introduced only by way of abundant caution. It is also to be noted that Section 3(1) contains a 'non obstante' clause and it renders any judgment contract/order or contrary to this Sub-section void. The legislature has introduced the non obstante clause to put the matter beyond doubt.

E This legislation is general in its terms and its application. The fact that at the relevant time of the amending Act or even the ordinance, the first respondent alone was affected is no ground to hold that it is a single person's legislation. This court, as a .matter of fact, has upheld such pieces of legislation in Chiranjit Lal Chowdhury v. The Union of fltdia and Ors., F (1950] S.C.R. 869, {particularly the passages occurring at pages 878-79). On the basis of its ruling it is submitted that even if it is held a single person's legislation, if he constitutes a class by himself, such a legislation would be valid. The same principle is stated in Thakur Rag/Jubir Singh and Ors. v. 17ie State of Ajmer (Now Rajasthan) & Ors., (1959] S.C.R. 478. Again in Lachhman Das on behalf of firm Tilak Ram Ram Bux v. State of G Punjab and Ors., (1963] 2 S.C.R. 353 .@ 374, it has been held that a law applying to one person or one class of persons. is constitutional if there is sufficient basis or reason for it. In Tilkayat Shri Govind/alji Maharaj v. The State of Rajasthan & Ors., (1964] 1 S.C.R. 561 where a legislation was confined only to one of the temples, it was held not to be in violation of H Article 14 of the Constitution. To the similar effect are S.P.Mittal etc. etc.

STATE 1·. K.C. MAHAJAN [MOHAN, .l.l 941

v. Ul'ioll of India & Ors., [198311 S.C.R. 729 and in Stale of Uttar Pradeslt A v. Lvkshmi lee Factory & Ors., 11962] Supp. 3 S.C.R. 59. Again, in La/it Naravall Mfrlira fllslitute of Economic Development and Social Challge, Palm! etc. v. State of Bi/tar & Ors. etc., f1988] 3 S.C.R 311, even though the Act was general in terms and applied to only one of the institutions at the relevant time. having regard to the policy of nationalisation, it was upheld. The case of D.S.Redt(v v. Cltancel/or, Osmania University & Ors., [1967] 2 B S.C.ll. 214, has no application to the facts of the case because though the Act was general in ils application, yet, ii applied to only one individual who was when OC'Upying the post of Vice Chancellor of Osmania U nivcrsity. Thu⁵, it i~ submitted as read from the stat~rnent of 'C)hjects and Reasons' of lhe amending Act~ if the policy l"o superannualc at the agl: of 65 is in c order to give full effect to the pnlicy, prnvision will have to he made for those who have <illained tht age L~f 65 also. 'fhi~ is \Vhat Section 3(1) aims at.

Looking it fro1n that point 1.1f \'ie\v this is a legislation which applies D lo all. The chance that the firsl r.::.spund.::nt \Vas affected at the relevant tin1c by introduction of this legi~lation \Viti nnt in any manner render it violative of Article 14 on the ground that it ls a single person's legislation.

If the l:l\v is setth:d 1hat no n1alajhle.1· could he attributed to the Lcgi.;laturc. an drg11n1cnt that lhL· ;1n1cndn1cnt ha;.; hL:cn p~1ssed only 'vith a E vic\v to puni'.-.h thi...~ fir~l rcspondcnf is nut av<:1ilabk: to the fir,J. rcspond~nl. The next sub1nission of the learned counsel is that in the plat:c of lirst respondent. (:h,1uhan had come to be appointed as Chainn<in, tht.:rcforc, he 011ght to havr been in1plca<led as a party. The effect of nnn-irnplea<ling. Chauhan will be falal to the writ petition as laid down in Stuce of Kera/a F and ,111vther v. Miss Rafia Rahim etc., A.LR. 1978 (Kerala), 176 as well as Padmraj Samare11dra and ·others v. State of Bihar and Anr., A.LR. 1979 (Patna) 266. In both the cases where the petitioners were challenging the scle,lion, it was held the selectccs were necessary p<irties as they were affected hylhe decisions of the courl. Therefore, if they arc not impleaded no rdicf could be granted in favour of I he writ petitioners even though on G merits tht:: petitioners could succeed.

Even uthcrwisl'., today. !hi.! principle of natural justice ha~ assumed grea: importance. If by reason of the decision of the cou,rl Chauhan is ultitnatcly affected, and if that decision is rendered will1out hearing H

p. 942 Copy page pinpoint

A Chauhan, it would amount to a clear violation of the principle of natural justice. An order passed in violation of that salutory provision of natural justice would be a nullity. As a matter of fact, if Supreme Court passes an order that would amount to nullity is what this court has laid down in. In A.RAntulay v. R.S. Nayak & Anr, [1988] Supp 1 SCR 1 @ 59. Therefore, for the failure to implead Chauhan the writ petition was liable to be B dismissed. The contrary view taken by the High Court that though he is a proper party but not a necessary party, or that Chauhan came to be appointed "until further orders" and, therefore, he need not be impleaded, is wrong.

c Mr. Kapil Sibal took us through the background in which the im- pugned ordinance and the Act came to be passed. He would submit that it had a great bearing on the legal issues involved in this case. The State of Himachal Pradesh tried .its level best to get rid of the Services of the first respondent. At first it issued a notification whereby the right to D continue as Chairman was interfered with. That was questioned in W.P. 123/90. Finding the judgment ·was going against the State, the State withdrew the notifications. Thereafter, the State came forward with charge memo under suspension order. They are pending in writ proceedings and an interim stay of suspension is in ·operation. At this stage, the ordinance is brought in because the executive method failed to bring about the - E termination of his services. At the relevant date of the ordinance no person other than the first respondent was affected. In fact, the State while writing for sanction fur issue of ordinance specifically mentions about this respondent by name. But at the same time it would conceal from Govt. of India the fact of the m,atter being sub judice. Though the Govt. of India F would request exploration of the possibility of amending the rules under Section 78 of the Electricity (Supply) Act because the rule could not have retrospective operation and the first respondent could not be reached by such an amendment of the rules resort is had to the ordinance making · power under Article 213 of the Constitution.

G Section 3(1) was aimed at only against this respondent. This is undeniable. While the ordinance was under challenge in writ petition before the High Court the amending Act came to be passed. This back- ground has to be kept in mind to appreciate the submissions made on H behalf of this respondent.

p. 943 Copy page pinpoint

Under the Electricity (Supply) Act, there are two provisions dealing with the appointments. One Section 5 and the other is Section 8. The former Section deals with initial appointment whilst Section 8 deals with reap?ointment.

What the amending Act does by prescribing the disqualification under Section 5(6) is to prevent future appointments after attaining the age of 6: years. But, even, here, there is no automatic cessation of office on attaining the age of 65 years. While there is a power for removal when a Member or Ch~irman of the Electricity Board becomes a Member of >- Parliament, he could be removed under Section 10, there is no such power in the event of the Member or Chairman incurring the disqualification of age, namely, the attainment of 65 years. Hence by merely amending the law, it cannot be urged that the first respondent having attained the age of 65 ceases to be a Member or Chairman of the Electricity Board. There- fore, Section 5( 6) will not help the appdlant.

Coming to Section 8 that deals with reappointment. Such a reap- D poin·:ment is governed by the terms and conditions as prescribed. The worcl "prescribed" means prescribed under the rules. The rule making power is contained under Section 78(2) (a). Rule 4 as originally stood go,,.,rned the reappointment stating it could be under such conditions as the :>tale Govt. may from time to time, by order, direct. There is a E proposal to amend the rule. Even under those rules namely Rules 3 and 4, the reappointment is thought of. While care has been taken in this rega"d no amendment has been effected to Section 8 prescribing the age limit of 65. As a matter of fact, for a tenure appointment under Section 8, there never be a prescription of age of superannuation. Such an ap- pointment is beyond the pale of Section 5. Thus, it is submitted Sections F 5,8,10,78 (2) (a) provide a scheme more so when Section 10 does not prescribe the age as a disqualification.

Jn no statute an upper age limit could ever be a disqualification, of cour<e, the minimum age of recruitment can be prescribed. But not an G uppt:r age limit for a tenure appointment. It is common knowledge that only experienced persons even after retirement are appointed as Chairman, having regard to the vast experience and wide knowledge.

On the factual aspect, it is submitted by the learned counsel, though the iotifieations dated 12.⁵.86 and 12.6.89, use the word "extension" it is H

944 SUPREME COlJRT REPORTS 1199.²] 1 S.C.R.

A nothing but reappointment. As a matter of fact, the counter affidavit of the Stale makes it clear that the order of reappointment came to be passed under Section 5 read with Section 8 rule 4. The statement of 'Objects and Reasons' also makes a reference tu Section 8. Thus, both legally and factually Section 5(6) cannot help the Stale.

B Much cannot be made of the words "or being" brought in by way of amendment of Section 5(6). This only connotes the attainment of age of 65 subsequent to the appointment. When the Constitution uses similar . language both under Articles 102 and 191, it made it clear that under both the Articles 101 as well as 190, the seat falling vacant retrospectively on c the incurring of such a disqualification there is no automatic cessation provided under Section 10. Thus the words "has attained" occurring under Section 5(6) assumes great importance because there is no provision under Section 10 prescribing age of disqualification and the consequent removal. Even under Section 5(6), it supposes a person being appointed before the D age of 65 and attaining the age of 65. Such a contingency does not arise here. Therefore, it is submitted that Sections 5(6) and 3(1) of the amend- ing Act should be read together. As regards the amending Act, it cannot be denied I hat on the date of ordinance it applied only lo the respondent and nobody else. While Section 5(6) takes care of future appointment Section 3(1) deals with reappointment. On the date of ordinance Section - E 5(6) would apply to nobody else l:>ecause this respondent alone ,was holding a tenure appointment. The legislation was brought about only' with a view to unseat the respondet1t. There can he a single person's legislation provided it is in furtherance of legislative objects. The burden is on 'the Stale to prove the reason or the basis for this legislation. Such a burden had not been discharged. F Certainly, the reappointments stand apart. They ciinstitute a class by themselves. A person initially appointed cannot be compared with a reappointec. The former falling under Section 5(6) and the latter falling under Section 8. If the respondent had been appointed after the age of G 65, he forms a class by himself. Therefore, the Slate will have lo be sure what exactly is the public purpose served or a social or economic obliga- tion. Further. as a matter of fact, this was the te•t applied in all single person's legislation. In all such cases whenever it was upheld either it was on the ground nf mismanagement of the institution or a mill, or because it A Was tn f~rtherancc uf a public purpose or a social or econon1ic obligation.

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In fact, in Ram Prasa.:. Narayan Sahi and another v. The State of Bihar and A Others, [1953] S.C.R. 1129 the mill was mismanaged. In Lalit Narayan Mishra fnstitute of Economic Developmmt and Social Change, Patna etc v. State of Bihar and Others etc., [1988] 3 S.C.R 311, the institute was not only mismanaged, of course, the policy was to nationalise all the institutions. Similarly, in Shri Ram Krishana Da/mia v. Shri Justice S.R. Tendolkar & B Others, [1959) S.C.R. 279, and in Lachhman Das on behalf of Firm TI/ak Ram Ram Bux v. State of Punjab and Others, [1963] 2 S.C.R. 353, the same · test was applied. Likewise in Swastik. Rubber Products Ltd. etc. etc v. \ Municipal Corporation of the City of Poona & Anr., [1982] 1 S.C.R. 729, it tr- was a case of mismanagement of industrial project. · The ca~e of Ti/kayat Shri Govind/alji Maharaj v. 771e State of Rajasthan and Others, [1964] 1 C S.C.R. '.i61, Nathdwara Temple where there was misapprobation of jewel- lery, likewise in the case of Jagannatha Temple. Thus, it ·is clear but for mismanagment or subserving a public cause or a social or economic obligati,)n, such pieces of single person's legislation would not have been upheld. D

Certainly, there may be a legislation in general application and it may ...i.. apply to an individual; but that is not the case here. On the date of the coming into force of the Act this respondent alone was affected. The amending Act itself makes a discrimination without any justification or rational'· If the respondent is treated alongwith others, it would amount E to treating unequals as equals.

Thus, it is submitted two principles will have to be applied (1) the respondent having been appointed under Section 8 constitutes a class; and (2) if the appointment of the respondent is sought to be brought out under Section 5 it will bring a discrimination treating unequals as equals. There- F fore, the law will have to be struck doWn as discriminatory and not that this respondent is atti:ibuting malafides to the legislature.

0 f course, in The Atlas Cycle Industries Ltd. Sonepat v. Their Workme~, [1962] 3 S.C.R. 89 case, it applied only to one individual. But G that case is distinguishable for of two reasons - (a) the benefii of extension was granted to the individual and it was not an adverse order and (b) a number of industrial adjudications were pending before the authority whose permission was extended.

A:; regards impleading Chauhan, it is submitted where this respon- H

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A dent would choose to question the vires of the ordinance in the Act, there was no need to implead Chauhan at all. As a matter of fact, this respondent could not have asked for any relief against Chauhan. Even otherwise, for an effective adjudication of the points in issue there is no need for the presence of Chauhan. In support of the submission reliance i~ placed on A. Janaradhana v. Union of India and Others, [1'83) 3 S.C.C. 601 @ 626. B Besides, ihe order of appoint111ent of Chauhan it is stated "conse- quent until further orders" .. Therefore, the court could grant relief even in his absence. The c.ases the side has cited can have no application because they related to selection under one scheme only on the displacement of c selectees. · The writ petitioners could be granted relief. In fine it is submitted that where.substantial justice has been done by allowing the first respondent in -0ffice until expiry of his term in July, 1992, by exercise of power under Article 136 this court will not interfere as laid down in Pritam Sin~h v. .The State, [1950] 1 S.C.R 453.

D Mr. Shanti Bhushan in his elaborate reply would state that Section 5(2} is the only source of appointment - both initial as well as reappoint- ment. Section 8 only deals with tenure. Section 3(1) of the amending Act corresponds to Articles 101(3) or 190(3). Therefore, it brings about an automatic cessation of office. E It is incorrect to cont'f!ld that for a tenure post, it is not proper to prescribe an age limit. Instances are not wanting where statutory provisions have ·been made to such an effect. For in~tance, Article 224 of the Constitution in relation to the Addl Judge. Likewise Section 8 of the Administrative Tribunals Act. Disqualification on account of age, there- F fore, could be prescribed statutorily. Having regard to the words "or bein~" occurring under Section 5(6), the Section alone would be enough to deprive the first respondent of his office after attaining the age of 65. In this regard the learned counsel cites American Jurisprudence (2nd Ed) Vol 63, parn 42. G The purpose of Section 3 is two-fold-one, by way of abundant caution it provides for cessation of office, though Section 5( 6) itself would be

J enough. Secondly, it takes away the right to emoluments after attaining the age of 65 and substituting by compensation, notwithstanding the con- tract to the contrary. Section lO(l}(d) is only an enabling provision. That H does not, in any mariner, effect the operation of Section 5(6). It L• incorrect

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to S\lbmit that this is a single person's legislation. It is of general applica- A tion and it s_o ha'ppened on the relevant date that the first respondent came to be affected. Lastly, it is submitted on the basis of B.Prabhakar Rao and Others v. State of Andhra Pradesh and Others, (1985] Supp. S.C.C. 432, that there is no need to dislodge Chauhan from office, after all, he had been ::ontinuing so long. · He may be allowed for the remaining period of the tenure "or the first respondent. The court itself could fix the compensation B i.nstead of even relegating matter to the State.

Having regard to the above arguments, the following points arise for ~ .. our determination :-

(i) The power of appointment under Section 5 and the scope c of Sections 8 and 10 of the Electricity (Supply) Act, 1948.

(ii) The effect of amendment under Section 5(6) of the said Act. D (iii) The scope of Section ~ of Electricity (Supply) (H.P. Amendment) Act of 1990. Whether it is violative as single person's legi'ilation.

(iv) Whether the failure to implead Chauhan would be fatal to the writ petition. ·E

We will now deal with these points. fo the normal course of events the first. respondent would have continued, by virtue of his extension, upto 2D.92. However, consequent to the Assembly Elections held in the beginning of 1990, there was a change of the Government. The fourth - y respondent became the Chief Minister. From th.en on, the first respondent . F rr.et with an avalanche of misfortune. He received successive blows. Hence he "was obliged to wage legal battles. That is why the learned counsel for the first respondent would urge that all these attempts were only with the sole aim of removing the first respondent from office. The E~ecutive having failed in its attempt resorted to legislative process. It is G unethical to do so. We are afraid, we cannot decide the case on ethics. We are to judge the law and the correctness of the legal provisions as we see then. Therefore, we are to move from the ethical plane to the legal plane.

In this case the State wants to introduce the age of superannuation H

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A prescribing an upper age limit of 65 for the Members and Chairman of the Electricity Board. As a matter of fact, hitherto, no such limit was found in the Electricity (Supply), Act, 1948 (hereinafter referred to as the Supply Act). Before the introduction of the amendment, the appellant State of Himachal Pradesh wrote on 22.6.90 to the Government of India, Ministry of Home Affairs for pr0curing prior instructions from the President of B India, as envisaged in clause (1) of Article 213 of the Constitution. The subject matter of the proposed ordinance falls under item 38 of List III (List III of the Seventh Schedule of the Constitution of India). Item 38 deals with electricity. Where, therefore, it was proposed to amend Section 5 of the Supply Act (Central Act 54/-18), in its application to the State of c Himachal Pradesh it had to be reserved for the consideration of the President under Article 254(2) of the Constitution. This was because if a Bill containing similar provision after having been passed by the State Legislature required to be so reserved for the consideration of the Presi- dent of India. However, it is important to note that in this letter it was categorically stated that in most administrative systems of the world an outer age limit is provided. Such a provision is found with reference to judicial officers and civil posts and is entrenched in administrative and constitutional systems. Having regard to the desirability of providing for a terminal point of time beyond which a Chairman and the .Members of the State Electrictiy Board must cease to hold office by operation of the statute, it was proposed to prescribe the age limit at 65 for retirement of the Chairman/Members of the Board.

The same point is reiterated as seen from the statement of 'Objects and Reasons' for the Bill No. 6 of 1990, which later on became Act 10 of

1990. We will now quote the relevant portion of the said statement of F i - Objects and Reasons.

"Section 8 of the Electricity (Supply) Act, 1948 (Act No. 54 of 1948) provides that the Chairman and other Members of the State Electricity Board shall hold office fo.r such period and G shall be eligible for reappointment under such conditions, as may be prescribed. In other words no provision has been made in respect of maximum age or period upto which a person may serve as Chairman or Member of the Board. Indeed, the provision after mandatory age of superannuation or specifica- H tion of age beyond which an incumbent must cease. to hold

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office is vital and essential. In most administrative systems of A the world, an outer age limit is provided. In our own country the concept of the age of superannuation, in other words the concept of the terminal point at which a person should cease to hold judicial offices and civil posts, are entrenched in our administrative and constitutional systems. Public policy re- B quires that the concept of superannuation should be applied to civil posts and offices. It was, therefore, decided to prescribe the age of 65 years for retirement of the Members of the Electricity Board, as the. retirement age of High Court Judges, Members of the Administrative Tribunal, Members of Public . Service Commission and other high functionaries has also been C fixed. This necessitated the amendments in the Electricity (Supply) Act, 1948 in its application to the State of Himachal Pradesh".

Therefore, what does the State desire to do? It wants to embark on a pc licy of retirement of the Chairman/Members of the Electricity Board D afte1 attaining the age of 65 years. This Court is least concerned with the -) wisdom of the policy.

Certainly, no one could quarrel with the introduction of that measure as of policy. In fact this Court has repeatedly recognised such a right of E : the ~:tate. It is enough if we quote KNagaraj & A11r. etc.etc. v. State of Andhra Pradesh & A11r. etc., A.LR. 1985 S.C. 551. In para 7, the court had occa! ion to observe thus:-

- y "Barring a few .services in a few parts of the world as, for example, the American Supreme Court, the terms and condi· tions of every public service provide for an age of retirement. Indeed, the proposition that there ought to be an age of retirement in public services is widely accepted as reasonable and rational. 'The fact that the stipulation as to the age of retirement is a common feature of all of our public services establishes its necessity, no less than its reasonableness. Public interest demands that there ought to be an age of retirement in public services. The point of the peak level of efficiency is :----....r bound to differ from individual to individual but the age of retirement cannot obviously differ from individual to individual H

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A for that reason. A common scheme of general application governing superannuation has therefore, to be evolved in the light of experience regarding performance levels of employees, the need to provide employment opportunities to the younger sections of society and the need to open up promotional op- portunities to employees at the lower levels early in their career. B Inevitably, the public administrator has to counterbalance con- flicting claims while determining the age of superannuation. On the one hand, public services cannot be deprived of the benefit of the mature experience of senior employees; on the I other hand, a sense of frustration and stagnation cannot be ·-~

c allowed to generate in the minds of the junior members of the services and the younger section of the society. The balancing of these conflicting claims of the different segments of society involves minute questions of policy which must, as far as pos- sible , be left to the judgment of the executive and the legisla- ture. These claims involve considerations of varying vigour and applicability. Often, the Court has no satisfactory and effective means to d~~ide which alternative, out of the many competing ones, is the best in the circumstances, of a given case. We do not suggest that every question of policy. Were it so this Court would have declined to entertain pricing disputes covering as wide a range as case to mustard-oil. IJ'. the age of retirment is fixed at an unreasonably low level so as to make it arbitrary and irrational, the court's interferer{ce would be called for, though not for foong the age of retirement but for mandating · a closer consideration of the matter. "Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14; E.P. Royappa v. State of Tamil Nadu, [1974) 2 SCR 348-AIR 1974 SC 555". But, while resolving the validity of policy issues like the age of retirement, it is not proper to put the conflicting claims in a sensitive judicial scale and decide the issue by finding out which way the balance tilts. That is an exercise which the administrator and the legislature have to undertake".

For adumbrating this policy a legislation is enacted by the State. It is not for this court to find out whether there was any need for such a H legislation. Of course, for lack of legislative competence or for violation ~

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of the right to equality under Article lll etc. the validity of the legislation A may be scrutinised. But, certainly, that is far from saying the court could eiamine the legislation from the point of view that it came to be passed with ma/afide intention. By long established practice, which has received approbation through authorities of this Court, it has always refrained from att1ibuting malafides to the legislature. In fact, such a thing is unknown to B !av-. Here again, we can usefully refer to the case K Nagaraj & Others etc. etc. v. State of Andhra Pradesh and Anr. etc., AIR 1985, 551. In para 36 it i' stated as:- I .>- "..... The legislature, as a body; cannot be accused of having passed a law for an extranellus purpose. Its reasons for passing. C a law are those that are stated in the Objects and Reasons- and if, none are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law malafide. This kind of 'trans- .ferred malice' is unknown in the field of legislation". D It is in this background, therefore, we propose to determine the above points.

1. The Power of Appointment under Section 5 and Scope. of Sections E 8 and JO of the Electricity (Supply) Ac~ 1948.

The Electricity {Supply) Act, 1948 {hereinafter referred to as the Act is to provide for rationalisation of the production and supply of electricity and generally for taking measures conducive to electrical department. - 'y Chapter III of the said Act deals with the State Electricity Boards, F Generating Companies, State Electricity Consultative Councils and Local Advi,.ory Committees. Section 5 reads as under :-

"5. Constitution and Composition of the State .Electricity Boards-(1) The State Governmel)t shall, as soon as may be after the issue of notification under sub-section {4) of G Section 1, constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification.

(2) The Board shall consist of not less than three and not more H

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A than seven members appointed by the State Government,

(3) ... omitted by Act 57 of 1949, S.4.

(4) Of the members -

B (a) one shall be a person who has experience of, and has shown capacity in, commercial matters and administra- tion;

(b) one shall be an electrical engineer with wide experience; ~l., " and c (c) one shall be a person who has experience of accounting and financial matters in a public utility undertaking, preferably an electri~ty supply undertaking. I (5) One of the members possessing any of the qualifications D specified in sub-section (4) shall be appointed by the State Government to be the Chairman of the Board.

(6) A person shall be disqualified from being appointed or being a member of the Board if he is a member of (Parliament) E or of any State Legislature or any local authority.

(7) No act done by the Board shall be called in question on the ground only of ~he existence of any vacancy_in, or any defect in the constitution of, the Board.'

F Thus, it will be seen that State Government is to constitute, by .·· 1 -. notification, the State Electricity Board. The minimum member of the Board shall be 3 while the maximum shall be 7. The Chairman could be any one of the members who possesses such qualifications as prescribed under Sub-section(4). Sub-section(6) talks of disqualification - (1) mem- G ber being appointed and (2) or being a member of the Board if he is a member of Parliament or of any State Legislature or any local authority.

Prior to the amendment in 1960, this disqualification must have been incurred. within the 12 months last preceding. What is important for our purpose is there is a disqualification for appointment in future when it says .'r.~ H "shall be disqualified from being appointed". Equally, "or being' means if

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such a disqualification is iricurred after the appointment during the tenure A of membership of the post. Therefore, the words "or being' have great significance.

We will come to the effect of amendment of Section 5(6) later after dealing with the relevant sections of this Act. Section 8 reads as follows :- B

"Term of office .and conditions for re-appointment of members of the Board; The Chairman and other members of the Board shall hold office for such period, and shall be eligible for re- appointment under such conditions, as may be prescribed." C A careful reading of the Section will clearly disclose the section tt erely talks of term of office and conditions for reappointment. Those conditions may be as prescribed. The word 'prescribed' has come to be defined under Section 2(9) of the said Act. "Prescribed" means prescribed m.1de by rules under this Act. Nowhere in this Section, in our considered vi<w, an additional power for appointment is conferred. At best it could be said that it merely lays down the eligibility for reappointment. As stated •) abnve, that eligibility must be as per conditions prescribed under the rules. As a matter of fact, when it says "shall hold the office for such period' it me.ms the period as prescribed under the rules. Beyond this, we are unable to persuade ourselves to come to the conclusion that there is any separate power for reappointment. It is not even necessary to provide for such a separate power. The reason why we say so is Sections 14 and 16 of Cen '.ral Generaltlauses Act provide for such a power. Section 16 deals with the power of appointment carrying with it the power of dismissal, while Section 14 states any power conferred unless a different intention appears could be exercised from time to time as occasion requires. Where, therefore, Section 5 provides for a power to appoint, certainly, that power could be exercised from time to time as occasion requires. Thus one need not s<·arch.for a separate provision in this regard. We may also note that the prescriptions in relation to the term was contained under Electricity G (Supply) (HP Amendment) Act, 1990. Under rule 4 of the said Rule, it is stated thus :-

"4. Term of Office · (1) The Chairman and other Members shall be appointed by the State Government and hold office for such period and shall, on the expiration of their terms office, H

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A be eligible for reappointment under such conditions as the State Government may from time to time; by order direct. (2) No whole-time Member so long as he• continues as Member shall accept al)y assignment other than that of the Board without the prior permission of the Government."

B Even there no further prescription is found excepting as laid down under the conditions stipulated by the State Government from time to time.

Then we come to Section 10. That Section deals with removal or suspension of members as follows :- c "Removal or suspension of members. (1) The State Govern- ment may suspend from office for such period as it thinks fit or remove from office any member of the Board who -

(a) is found to be a lunatic or becomes of unsound mind; D or

(b) is adjudged insolvent; or

(c) fails to comply with the provisions of Section 9; or

E (d) becomes or seeks to become a member of Parliament or any State Legislature or any local authority; or

(e) in the opinion of the State.Government-

(i) has refused to act; or F (ii) has become incapable of acting ; or

(iii) has so al:msed his position as to render his con- tinuance on the Board detrimental to the interests of the general public; or G (iv) is otherwise unfit to continue as a member; or

(t) is convicted of an offence turpitude.

{2) The State Government may suspend any member pending an inquiry against him.

STATE'" K.C. MAJ IAIAN [MOHAN. J.) 955

(3) No order of rcmo\'al shall he made under this section unless the member concerned ha~ bcl.!n gi\'cn an opportunity to submit his explanation to the State GoYcrnmcnt. and when such order is passed, the seal of the member removed shall become vacant and another member may he appointed under Section 5 to fill up the vacancy. B '· (4) A mcmher who has been removed shall not he eligible for reappointment as member or in any other capacity lo the Board.

(5) If the Board fails l<> carry out its functions, or refuses or C fails lo follow the directions issued by the Stale Govcrnm•:nt under this Act, the Stale Gmwnment may remove the Chair- man and the members of the Board and appoint a Chairman and members in their places."

In our view this Section confers an enabling power on the Stale D Clovcrnmcnt to take punitive action against a mcinbcr of thi.: Board \\'ho ., falls under any one of the clauses (a) lo (I). The fact that it is punitive is ckar because Suh-section (3) conlc1nplales giving an opportunity lo offer a:i explanation anti thcn.:aftcr removing him. ()nee so rcmovc<l, he i~ ineligihlc for reappointment either as a Member or any other capacity in E tk Board.

As to why after amending Section 5(6) the Stale has not correspond- ingly amended Section lO so as lo include cases of Members or Chairman

, al laining the age of 65, we will consider while dealing with the scope of amendment to Section 5(6).

The next Section that has lo be looked al is Section 7S, i.e. the rule making section. Suh-section (1) of Section 78 as is usual talks of the Slate Government making rule gi\'ing effect lo the Act. Suh-section (2), F

catalogues without prejudice lo the generality of this power, as to what all the ruks mav pnwide for. Certainly it cannot be contended that the items G catalogued in Suh~~t:ction (2) arc cxhausth'l!. It is mcn.:ly iHuslratirl·. Under Suh-section (2)(a) it is slated that the rules may pnwidc for (i) "the pO\\'crs of lhc l'.hairman an<l thl.! tcnn of orficc of th,.; Chairn1an and other memhcrs of the Board, (ii) the conditions under which they shall be digibk for rl:appointmcnt and (iii) their rt:munl.!ration, alJo,vanccs and (iv) other H

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