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PETITIONER: STATE OF HIMACHAL PRADESH AND ANR.

       Vs.

RESPONDENT: KAILASH CHAND MAHAJAN AND ORS.

DATE OF JUDGMENT20/02/1992

BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) SAHAI, R.M. (J)

CITATION:  1992 AIR 1277            1992 SCR  (1) 917  1992 SCC  Supl.  (2) 351 JT 1992 (2)   144  1992 SCALE  (1)454

ACT:     Constitution  of India, 1950-Article  136-Appeal-Whether Supreme  Court to decide a case on ethics-Retirement age  of Chairman/Member   of   Electricity   Board-Policy-Need   for legislation-Whether the Court to interfere.     Electricity  (Supply) Act, 1948-Section 5(6) (as amended by  the  Himachal  Pradesh  Act  10  of  1990)-  "Shall   be disqualified from being appointed," "or being"-Meaning of.     Electricity (Supply) Act, 1948-Sections 5,8 and sections 14 and 16 of the General Clauses Act-Period of  appointment- Time  to time extension-Whether amounts  to  re-appointment- Whether section 5 (6) deals only with initial appointment.     Electricity   (Supply)  Act,   1948-Section   10-Whether punitive  in  nature-Reappointment-Person  removed   whether eligible.     Electricity (Supply) Act, 1948-Section 5 (6)-(as amended by the Himachal Pradesh Act 10 of 1990)-Effect of amendment- Cessation  from  holding office of  Chairman/Member  of  the Board  on attaining the age of 65 years  whether  automatic- Right to continue in office-Legitimate  expectation-Legality of-Superannuation age-Introduction-Object of.     Interpretation  of  Statutes-Object of  legislation  and legislative intention-Distinction of-‘Object and Reasons’ of a  Bill-Importance of-The Himachal Pradesh Act, 10 of  1990- Sections 3,5-Object of.     Constitution of India, 1950-Article 14-Amending Act (the Himachal  Pradesh  Act 10 of 1990) introducing  the  age  of superannuation affecting one person-Whether enactment  ultra vires.     Constitution  of India, 1950-Article  226-Writ  petition challenging  vires of the Himachal Pradesh Act 10  of  1990- Non-impletion of a person who was appointed in the place  of the writ-petitioner-Effect of.

HEADNOTE:     Respondent  No.  1, on his retirement from the  post  of Chief  Engineer  from the State of Punjab was  appointed  as a Member  of  Himachal Pradesh State  Electricity  Board  on 24.7.1981 and thereafter appointed as Chairman of the  Board for a period of two years. On 13.8.82 by a notification  the period  was  extended to five years,  w.e.f.  25.7.1981.  On

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12.5.86,  the  term  as Chairman was  extended  for  another period  of  three years. There was a  further  extension  on 12.6.89  for  a period of 3 years. His  appointment  was  to continue upto 25.7.92.     Respondent No. 3, the Chief Minister of Himachal Pradesh was  alleged to have made  speeches that should he  come  to power  in  the  January 1990 elections  he  would  have  the respondent  No.  1  removed from  the  Chairmanship  of  the Electricity Board.     On  5.3.90,  the  respondent  No.  3  became  the  Chief Minister.   A  notification  dated  6.3.90  was  issued   in supersession  of  the notification dated  12.6.89  that  the appointment  of  the  respondent No. 1 as  Chairman  of  the Electricity  Board  was  extended from  25.7.89  to  6.3.90. Another notification dated 6.3.90 was issued directing  that one  Mr.  Chauhan function as Chairman  of  the  Electricity Board w.e.f. 7.3.90.     The   respondent  No.  1  preferred  a   writ   petition challenging the validity of the notification dated 6.3.90.     While the writ petition was pending, on 30.3.90, another notification  was issued terminating the appointment of  the respondent No. 1 as Member of the Electricity Board.     On  30.3.90,  the High Court while  admitting  the  writ petition  (CWP No. 123 of 1990) ordered that no  appointment to  the  post of Chairman of the Electricity Board  be  made till further orders of the Court. When the matter was  heard on  22.5.90, the Advocate General requested the  Court  that the  judgment not to be pronounced since he desired to  seek instructions   from   the  Government  to   reconsider   its notification dated 6.3.90. On 11.6.90, the Advocate  General submitted  to the Court that the notifications dated  6.3.90 and  30.3.90 would be withdrawn and an undertaking  to  that effect was given. Accordingly the writ petition was disposed of.     By  notification dated 11.6.90, the Government  withdrew its notification dated 6.3.90 and 30.3.90.                                                        919     On  11.6.90,  a  show cause notice  was  issued  to  the respondent No. 1 for having abused his petition as  Chairman of  the  Electricity  Board and  also  ex-offcio  Secretary, M.P.P. Power, asking him to submit his explanation within 21 days  as to why action should not be taken under Section  10 of  the Electricity (Supply) Act, 1949. He was  also  placed under suspension with immediate effect. Consequent upon  the suspension  of the respondent No.1, the  notification  dated 16th  July,  1990  issued placing one  Mr.  R.S.S.  Chauhan, Member (Operations) as the Chairman of the Electricity Board with immediate effect.     On 22.6.90, the Chief Secretary of the State  Government requested  the Secretary, Government of India,  Ministry  of Home  Affairs to grant permission to promulgate  Electricity (Supply H.P. Amendment) Ordinance, 1990, as no age limit was prescribed  for  holding office of the Member of  the  State Electricity  Board, it was necessary to prescribe  an  upper age limit and it was proposed through the Ordinance that  no person  above  the age of 65 years could  be  appointed  and continued  as Chairman or Member of H.P.  State  Electricity Board.     On 9.7.90, the Government of India pointed to the  State Government  that  it  was desirable for it  to  examine  the matter with reference to the relevant provisions of the  Act and the Constitution of India.     On 13.7.90, the Governor issued the H.P. Ordinance  Rule of 2/90, amending Section 5 (6) of the Electricity  (Supply) Act.

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   A  notification  was  issued on  16.7.90,  that  as  the respondent  No.1,  having already attained the age  of  more than  sixty-five  years,  was  ceased  to  be   consequently Chairman of the Board.     Aggrieved  by  the  Ordinance  dated  13.7.90  and   the notification dated 16.7.90, the respondent No.1 filed a writ petition (CWP No. 396 of 1990) to quash the same.     The  respondent No. 1 urged before the High  Court  that there  was a deliberate attempt on the part of the State  to get rid of him through the Ordinance; that the Ordinance was violative of Articles 14 and 16 of the Constitution that  as he  was  the only person affected by  the  Ordinance  having crossed  the  age  of 65, he was singled  out  for  a  total discriminatory treatment; that it was a colourable  exercise of power; that while obtaining                                                        920 the  consent  to promulgate the Ordinance, the fact  of  the pending writ petition, concerning the respondent No. 1,  was not  made  known and there was a deliberate  concealment  of facts;  and that in any event, the Chief Minister  (who  was the fourth respondent in the writ petition) was activated by malafides  and  he was determined to remove  the  respondent No. 1, as he held out in the election meeting.     The   respondent   No.   4  (in   the   writ   petition) (Chief  Minister)  denied the allegations of  malafides  and urged that the Ordinance was issued since a policy  decision was  taken  to introduce age of  superannuation  fixing  the limit at 65.     During the pendency of the writ petition, the  Ordinance was  replaced by the Electricity (Supply) (Himachal  Pradesh Amendment)  Act, 1990 (H.P. Act 10 of 1990). Therefore,  the writ  petition was amended to challenge the validity of  the amending Act.     The  Division  Bench  quashing  the  notification  dated 17.7.1990  held that the evidence furnished by the  petition (respondent  No. 1) in the form of newspaper  reports  would not  be  enough  to hold that the  Chief  Minister  had  any personal  bias; that the legislature as a body could not  be accused of having passed a law for an extraneous purpose and therefore,   no  malafides  could  be  attributed   to   the legislature; that by the Ordinance an age of  superannuation was  brought in, and as there was no such age prescribed  by the  Central  Act,  there was no repugnancy;  that  by  mere curtailment  of  the term as Chairman of the  Board  without any mention about his inability or professional  competence, so as to affect his reputation in any manner, no injury  was taken place so as to complain of violation of Article 21  of the  Constitution; that prescription of maximum age  by  the amending Act at 65 years could not be said to be  arbitrary; that  as the petitioner was appointed after he attained  the age  of 65 years, he would not be affected by Section  3(1); and  that Mr. R.S.S. Chauhan was not a necessary  party,  as his appointment was only "until further orders."     Against the decision of the High Court by special  leave this  appeal was filed by the State, contending that  though the inapplicability of the Ordinance or Act was not  raised, the High Court allowed the argument; that the  Ordinance/Act was applicable to the respondent No. 1; that the reading  of Sections 2 and 3 of the amending Act, both individually and                                                        921 conjointly  lead  to the  only  conclusion  that   the   Act disqualified  every  person from holding office who  on  the date  of  enactment  namely, 13th July, 1990  was  above  65 years;  that  the Act on its own terms made  no  distinction whatsoever  between those persons who already  attained  the

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age  of 65 years on the date of enactment or those who  were less  than  65 years; that the High Court was not  right  in introducing an artificial distinction; that Section 5(6)  of the Act as amended  would disqualify all persons who were at the  time  of  the amendment 65 years  or  above;  that  the language was very wide in its comprehension; that there  was no necessity to remove the respondent No. 1 by resorting  to Section 10 because Section 5 (6) was self-executory; that by operation of law, the respondent No. 1 ceased to hold office on  the date of coming into force of the  amending  Act;that public  policy  required to prescribe the age  of  65  years retirement of the members of Electricity Board;that the High Court went wrong as though the appointment of the respondent No.  1  was not covered by Section 3(1) since the  right  to continue as Chairman was pursuant to an appointment after he had  attained  the age of 65 years; that  factually  it  was incorrect because the appointment of the first respondent as Chairman was on 13.8.82 and the same appointment came to  be extended from time to time and each of such extensions could not   constitute  a  new  appointment;  that  it   was   one appointment  which  was being continued from time  to  time; that  the reasoning of the High Court was wrong  because  it led to unconstitutionality, as the persons who attained  the age  of 65 years after the amending Act would be obliged  to retire  while  the older persons like the respondent  No.  1 would  remain in office; that such situation  would  clearly amount to discrimination; that either by way of Section 5(6) of the Electricity (Supply) Act, as amended or under Section 3(1)  of the amending Act, the respondent No. 1 would  cease to hold office; that Section 3 was introduced only by way of abundant  caution;  that  Section  3(1)  contained  a   ‘non obstante’  clause  and it rendered any  judgment,  contract/ order or contrary to the sub-section would be void; that the legislature  introduced the non-obstante clause to  put  the matter beyond doubt; that the legislation was general in its terms and its application and the fact that at the  relevant time  of  the  amending  Act  or  even  the  Ordinance,  the respondent  No. 1 alone was no ground to hold that it was  a single  person’s  legislation; that no  malafides  could  be attributed   to  the  Legislature,  an  argument  that   the amendment has been passed only with a view to punish                                                        922 the first respondent was not available to the respondent No. 1; that for the failure to implead Chauhan the writ petition was  liable  to  be dismissed because if by  reason  of  the decision of the court, Chauhan was ultimately affected,  and if  that decision was rendered without hearing  Chauhan,  it would  amount  to  a clear violation  of  the  principle  of natural justice; that there was no need to dislodge  Chauhan from  Office as he was continuing so long; that this  Court, by fixing the compensation, instead of relegating the matter to  the State, may allow him to continue in the  Office  for the remaining period of tenure of the respondent No. 1.     The  respondent  No. 1 submitted that the  State,  while writing   for  sanction  for  issue  of   Ordinance   though specifically  mentioned about the respondent No. 1 by  name, it  concealed  from Govt. of India the facts of  the  matter being sub judice; that the disqualification prescribed under Section  5  (6)  of the amended Act was  to  prevent  future appointments after attaining the age of 65 years; that there was no automatic cessation of office on attaining the age of 65  years; that by merely amending the law, it could not  be urged that the respondent No. 1 having attained the  age  of 65  ceased  to be a Member or Chairman  of  the  Electricity Board; that Section 5 (6) would not help the appellant; that

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the  respondent No.1 having been appointed under  Section  8 constituted a class and if the appointment of the respondent No. 1 was sought to be brought out under Section 5 it  would bring  a  discrimination  treating unequals  as  equals  and therefore,  the  law  would  have  to  be  struck  down   as discriminatory; that the attaining of 65 years was not to be considered  as  disqualification  as  otherwise  Section  10 would  provide for such a situation; that Section 5(6)  only deals with initial appointment and would not cover a case of reappointment after attaining the age of 65; that though the notifications  dated  12.5.86  and 12.6.89,  used  the  word "extension"  it was nothing but reappointment; that  by  the enactment   only  the  first  respondent  alone   could   be affected   and,   therefore,  it  was  a   single   person’s legislation   being   violative  of  Article   14   of   the Constitution;  and  that where the respondent  No.  1  would choose  to question the vires of the Ordinance or  the  Act, there  was  no  need to implead   Chauhan at  all,  and  the respondent  No.  1  could  not have  asked  for  any  relief against  Chauhan  and  even  otherwise,  for  an   effective adjudication  of the points in issue there was no  need  for the presence of Chauhan.     Allowing the appeal filed by the State, this Court,                                                        923     HELD: 1.01. This Court cannot decide the case on ethics. The  Court  is to judge the law and the correctness  of  the legal provisions as it sees. [947G]     1.02. It is not for this court to find out whether there was any need for such a legislation. Of course, for lack  of legislative  competence  or for violation of  the  right  to equality   under  Article  14  etc.  the  validity  of   the legislation may be scrutinised. But, certainly, that is  far from saying the court could examine the legislation from the point  of  view  that it came to  be  passed  with  malafide intention. By long established practice, which has  received approbation through authorities of this Court, it has always refrained from attributing malafides to the legislature.  In fact, such a thing is unknown  to law. [950H-951B]     1.03. In this case the State wants to introduce the  age of  superannuation prescribing an upper age limit of 65  for the  Member  and  chairman of the Electricity Board,  as  no such limit was found in the Electricity (Supply) Act,  1948. Before  the  introduction of the  amendment,  the  appellant wrote   on 22.6.90 to the Government of India,  Ministry  of Home  Affairs  for  procuring prior  instructions  from  the President  of India, as envisaged in clause (1)  of  Article 213 of the Constitution. [947H-948B]     1.04. The subject matter of the proposed Ordinance falls under  item  38 of List III of the Seventh Schedule  of  the Constitution of India. Where, therefore, it was proposed  to amend Section 5 of the Electricity Supply Act (Central Act), in its application to the State of Himachal Pradesh; it  had to be reserved for the consideration of the President  under Article  254 (2) of the Constitution. This was because if  a Bill  containing similar provision after having been  passed by the State Legislature required to be so reserved for  the consideration of the President of India. [948B-D]     1.05.  Therefore, what does the State desire to  do?  It wants   to  embark  on  a  policy  of  retirement   of   the Chairman/Members  of the Electricity Board  after  attaining the age of 65 years. This Court is least concerned with  the wisdom  of the policy. Certainly, no one could quarrel  with the introduction of that measure as of policy. [949D-E]     1.06.  Where  the State has taken a policy  decision  to prescribe an outer age limit for the Members or the Chairman

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of the Electricity Board it is perfectly legal. [963D]                                                        924          K.Nagaraj & Others, etc. v. State of Andhra Pradesh          &  Anr.  etc.etc., AIR 1985 SC 551,  paras  7,  36,          referred to.          Pritam Singh v. The State, [1950] SCR 453; Union of          India   v.  M.P.  Singh,  [1990]  Supp   SCC   701,          distinguished.     2.00  There  is a disqualification  for  appointment  in future  when  it  says "shall  be  disqualified  from  being appointed".  "Or being" means if such a disqualification  is incurred   after  the  appointment  during  the  tenure   of membership of the post. [952H-953A]     3.01. Section 8 of the Electricity (Supply) Act talks of term  of  office  and conditions  for  reappointment.  Those conditions may be as prescribed. Nowhere in this Section  an additional  power for appointment is conferred. At  best  it could  be said that it merely lays down the eligibility  for reappointment.  That eligibility must be as  per  conditions prescribed  under  the rules. When it says "shall  hold  the office  for such period" it means the period  as  prescribed under  the  rules.  Beyond  this, the  Court  is  unable  to persuade itself to come to the conclusion that there is  any seperate  power for reappointment. It is not even  necessary to provide for such a seperate power. Sections 14 and 16  of Central  General  Clauses  Act provide  for  such  a  power. Section   16   deals   with   the   power   of   appointment carrying  with it the power of dismissal, while  Section  14 states  any  power conferred unless  a  different  intention appears  could  be exercised from time to time  as  occasion requires.  Where, therefore, Section 5 provides for a  power to  appoint, certainly, that power could be  exercised  from time to time as occasion requires. Thus one need not  search for a seperate provision in this regard. [953C-G]     3.02.  Section 5(6) as amended having regard to the  use of  language "or being" would any way exclude such of  those members or even the Chairman who have attained the age of 65 years of age at the time of appointment.[959E]     3.03.  It is rather unfortunate that the High Court  has missed  the true import of the words "or being". This  Court does  not  approve the findings of the High  Court  when  it states,  "the provision lays down the age of  superannuation for a member prospectively which disqualifies a person  from being  appointed or being a member after he attains the  age of  65  years," by itself it does not affect those  who  had been given appointment                                                        925 after  having  the  age of 65  years.  The  Legislature  was conscious  of it, but thought of enacting a  provision  like Section 3 on that account. [959C-D]     3.04.  The contention that Section 5(6) only deals  with initial   appointment  and  would  not  cover  a   case   of reappointment  after  attaining  the age  of  65  is  wholly unacceptable.  There  is no question of any  seperate  power for  reappointment under Section 8 and the only power  being traceable  to Section 5 read with Sections 14 and 16 of  the General Clauses Act.  [960B-C]     3.05.  The  original order of appointment of  the  first respondent  was  on  24.7.1981, first as  a  Member  and  as Chairman  for  a  period  of 2 years.  The  next  comes  the appointment dated 13.8.1982, when the first respondent  came to be appointed  as  Chairman  of  Himachal   Pradesh  State Electricity  Board. The notification reads "in  continuation of  this  Department’s  notification of  even  number  dated 12.5.1986,  the Governor of Himachal Pradesh is  pleased  to

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extend  the  appointment".  Therefore,  where  the  original appointment dated 12.5.86 is extended from time to time,  it is  futile  to contend that these  are  fresh  appointments. [960D, 961D-E]     4.  Section  10 confers an enabling power on  the  State Government  to take punitive action against a member of  the Board who falls under any one of the clauses (a) to (f). The fact  that it is punitive is clear because  sub-section  (3) contemplates  giving an opportunity to offer an  explanation and  thereafter  removing  him.  Once  so  removed,  he   is ineligible   for  reappointment  either  as a Member or  any other capacity in the Board. [955D-E]     5.01.  The effect of amendment of Section 5 (6) is  that it introduces a new disqualification "if he has attained the age  of  65 years". This disqualification is  not  only  for being   appointed,   namely,  with   reference   to   future appointment,   but  even  with  regard  to   a   supervening disqualification  covering cases of those who have  attained the age of 65 years and being a member of the Board.  [957G- 958A]     5.02. Once this disqualification of attaining the age of 65  years is incurred, there is an automatic cessation  from holding  office. This is because Section 5(6)  contains  the same  phraseology  as is found under Articles 102  and  191. Section  5(6) applies to initial appointment as well  as  to those continuing  in appointment. [956G-H]                                                        926 5.0.3.Section  5(6) itself would be enough to hold  that  on the  coming into force of the amending Act, namely,  13.7.90 the first respondent ceases to hold the office by the rigour of law. [959E-F]     5.04.  The  Act  contains a  ‘non-obstante’  clause.  An appointment  of  a  Member of the Board made  prior  to  the commencement   to   the   Act,   namely,   13.7.90   (giving retrospective operation) when gives a right to continue as a Member after attaining the age of 65 years, that appointment is rendered void. [963G]     5.05.  This non-obstante clause is a sweep.  It  applies (1)   notwithstanding  anything  to  the  contrary  in   any provisions  of the Electricity (Supply) Act; (2)  rules  and regulations, bye-laws made therein; (3) any judgment, decree or order of the court; and (4) any contract. [963H]     5.06. Once it is so rendered void, the law deems that he has  ceased to hold office of the Member of the Board. By  a reading  of  the Section it can be seen  that  Section  3(1) would apply to a person who on the date of the  commencement was already more than 65 years. [964A-B]     5.07.  The Section nowhere makes a  distinction  between those on the date of the enactment are "below" or "over"  65 years of age. Such a distinction is totally unwarranted. The crucial  question   to be asked is whether  the   particular incumbent is continuing after the attainment of 65 years  of age,  if that question is answered in the affirmative  there is  a  cessation  of office, in view of the  terms  of  that Section.  The  contrary  conclusion would  lead  to  strange results. Those who are appointed prior to the Act and on the attainment  of 65 years on 13.7.90, would vacate the  office while a person already 65 on that date and after the passing of the Act notwithstanding the policy of prescribing the age of superannuation  of 65 years would continue in the office. The object of introducing an age of superannuation itself is to  weed  out the older elements and infuse fresh  blood  so that the administration could function with vigour. [964B-D]          Pasupati Nath Sukul, Election Commission of  India,          State of U.P. v. Nem Chand Jain and others,  [1984]

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        2  SCC  404;  Election Commission,  India  v.  Saka          Venkata Subba Rao, [1953] SCR 1144 at page 1157;  R.  v.          Ministry  of  Agriculture Fisheries  and  Food,  ex          parte Jaderow Ltd. and others, 1991 All England Law          Reports 41, referred to.                                                   927          Wade’s  Administrative  Law  (6th  Edition),   Page          520-21, referred to.      6.01.   There  is  a  great  distinction  between   the legislative  intention  and  the purpose or  object  of  the legislation.  While the object of legislation is to  provide a  remedy for the malady, on the contrary,  the  legislative intention relates to the meaning from the exposition of  the remedy as enacted.  For determining the purpose of object of legislation,  indeed,  it is permissible to  look  into  the circumstances which were prevalent at that time when the law was  enacted  and  which necessitated  the  passing  of  the enactment.   For  the limited purpose  of  appreciating  the background and the antecedents factual matrix leading to the legislation  it  is  open  to the court  to  look  into  the statement  of  ’Objects  and  Reasons’  of  the  Bill  which accentuated  the statement to provide a remedy for the  then existing malady.  [964G-965A]      6.02.  The statement of Objects and Reasons’ brings out the  object  of the desirability of introducing  an  age  of superannuation   as   the   same  is   entrenched   in   our administrative and constitutional systems.  With this object in  view,  Section  3 intends that no one  has  a  right  to continue as a member of the Board after attaining the age of 65.   Thus,  the only conclusion possible is, by  reason  of appointment  if  the incumbent is enable to  continue  after attaining  the age of 65 years such continuing  is  rendered void. [965B-D]      6.03.  Section 5 (6) as amended achieves this  purpose. Yet if there is another Section which deals with the same it must  be  regarded  as one introduced  by  way  of  abundant caution.  In short, Section 3 (1) is epexegesis. [965D]      6.04.   Where the right to continue in office has  been put  an  end to by statute, even then it may  be  complained that  the other rights like salary and perks would  continue to  be  reserved and they could be claimed.  To  avoid  that contention,   Section   3(2)   provides   for   compensation equivalent  to the amount of salary and allowances  for  the unexpired term of office.  [967G]      6.05.  On 13.7.90 the first respondent’s right to  hold office  as Chairman/Member of Himachal  Pradesh  Electricity Board came to an end.  The State to pay the first respondent the  salary, allowances and perks for the period  commencing from 13.7.90 upto 25.7.92, had he continued in office                                                   928 but  for the impugned legislation.  If any payment has  been made by interim orders of the court that will go towards the deduction of this liability.                                                     [984B,D]           Francis  Bennions Statutory  Interpretation  (1984           edn.)  at page 237; State of West Bengal v.  Union           of India, [1964] 1 SCR 371, referred to.      7.01.   There  could  be a legislation  relating  to  a single  person.  Assuming for a moment, that the  Section  3 applies only to the first respondent even then, where it  is avowed   policy  of  the  State  to  introduce  an  age   of superannuation  of 65 years of age, there is  nothing  wrong with the same. [971C]      7.02.  The legislative object is to introduce an age of superannnuation.    Beyond   this  nothing  more   need   be

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established   by  the  State.   The  possibility   of   this legislation  applying  to  one or  more  persons  exists  in principle.   The  fact that only one individual came  to  be affected   cannot  render  the  legislation   arbitrary   as violative  of  Article  14.  This is because  Section  3  is general  in terms and the incidence of its applying  to  one individual does not render the legislation invalid. [975B-C]      7.03.   If the State is well entitled to  introduce  an age   of   superannuation,   how  could   that   be   called discrimination on unreasonable?  The resultant conclusion is the  amending  Act, particularly, Section 3 is not,  in  any way, arbitrary and, therefore, not violative of Article  14. [982E]          Ram  Prasad Narayan Sahi and Anr. v. The  State  of          Bihar and others, [1953] SCR 1129; Shri Ram Krishna          Dalmia  v.  Shri Justice S.R. Tendolkar  &  Others,          [1959]  SCR 279; Swastik Rubber Products Ltd.  etc.          etc. v. Municipal Corporation of the City of  Poona          &  Anr., [1982] 1 SCR 729; Chiranjit Lal  Chowdhury          v.  The Union of India and Ors., [1950] 1 SCR  869;          Thakur  Raghubir  Singh and Ors. v.  The  State  of          Ajmer  (Now  Rajasthan)  & Ors.,  [1959]  SCR  478;          Lachhman Das on behalf of Firm Tilak Ram Ram Bux v.          State of Punjab and Ors., [1963] 2 SCR 353 at  page          374; Tilkayat Shri Govindlalji Maharaj v. The State          of Rajasthan & Ors., [1964] 1 SCR  561; S.P. Mittal          etc.  etc. v. Union of India & Ors., [1983]  1  SCR          729; State of Uttar Pradesh v. Lakshmi Ice  Factory          &  Ors.,  [1962]  Supp. 3  SCR  59;  Lalit  Narayan          Mishra,  Institute  of  Economic  Development   and          Social                                                        929          Change,  Patna etc. v. State of Bihar &  Ors.  etc.          [1988] 3 SCR 311; D.S. Reddy v. Chancellor, Osmania          University  &  Ors., [1967] 2 SCR  214;  The  Atlas          Cycle  Industries Ltd., Sonepat v.  Their  Workmen,          [1962] 3 SCR 89 at pages 103-4; Ameerunnissa  Begum          and Others v. Mahboob Begum and Others, [1953]  SCR          404, referred to.          American  Jurisprudence (2nd Ed.) Vol.63, Para  42,          referred to.      8.01   The plea that the decision of the court  in  the absence  of  Chauhan  would be  violative  of  principle  of natural justice as any adverse decision would affect him  is not correct. [982H]      8.02.   What  was the first respondent seeking  in  the writ  petition?   He  was questioning the  validity  of  the Ordinance  and the Act whereby he had been deprived  of  his further continuance.  What is the relief could he have asked for against Chauhan?  None.  The first point is Chauhan came to  be appointed consequent to the suspension of  the  first respondent  which  suspension had come to be stayed  by  the High  Court on 12.6.90.  Then, again, as pointed out by  the High  Court  it was "till further orders",  the  failure  to implead  Chauhan does not affect the maintainability of  the writ petition. [983D-E]          B.  Prabhakar  Rao  and Other v.  State  of  Andhra          Pradesh  and  Others,  [1985] (Supp)  SCC  432;  A.          Janardhana  v. Union of India and Others, [1983]  3          SCC  601  at page 626; Pritam Singh v.  The  State,          [1950] 1 SCR 453, referred to.          State of Kerala and Anr. v. Miss Rajia Rahim  etc.,          AIR 1978 Kerala 176; Padmraj Samarendra and  Others          v.  State  of Bihar and Anr., AIR 1979  Patna  266;          A.R. Antulay v. R.S. Nayak & Anr. [1988] Supp 1 SCR

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        1 at page 59, distinguished.

JUDGMENT:      CIVIL  APPELLATE JURISDICTIOIN : Civil Appeal No.  3062 of 1991.      From  the  judgment and Order dated  12.7.1991  of  the Himachal Pradesh High Court in C.W.P. No. 396 of 1990.      Shanti  Bhushan,  Chabbil Das, Advocate  General,  A.M. Singhvi,  E.C.  Agrawala, Atul Sharma, A.V. Palli,  Mrs.  P. Bhatt and Ms. Reena Aggarwal                                                   930 for the Appellants.      Kapil  Sibal,  Ranjit  Kumar,  Mrs.  Rashmi  Kathpalia, Yashana Adhyaru and Sudhir Walia for the Respondents.      The Judgment of the Court was delivered by      MOHAN,  J.  The facts relating to the Civil Appeal  are as under:-      The  first  respondent  (Mr.  Kailash  Chand   Mahajan) retired  from the post of Chief Engineer from the  State  of Punjab.   On  24.7.81,  he  was appointed  as  a  member  of Himachal  Pradesh  State Electricity  Board  and  thereafter appointed as Chairman of the said board for a period of  two years.   On 13.8.82, the following notification came  to  be issued:-      No.  8-155/73-DP (Apptt. II) Dated Shimla- 2, the  13th Aug. 1982                          NOTIFICATION      In exercise of the powers conferred by Section 5 of the Electricity  (Supply)  Act,  1948,  the  Governor,  Himachal Pradesh,  is  pleased to appoint Shri Kailash  Chand,  Retd. Chief  Engineer  (Irrigation) Punjab, whose  appointment  as Member, H.P. State Electricity Board, has been notified vide Notification  of even number, dated the 24th July, 1981,  as Chairman, H.P. State Electricity Board for a period of  five years, with effect from 25th July, 1981. Detailed terms  and conditions  of  his  appointment  has  already  been  issued separately.      This is in supersession of this deptt.  Notification of even number, dated the 24th July, 1981.                                                      By Order                                                  K.C. Pandeya                                        Chief Secretary to the                               Government of Himachal Pradesh"      On  12.5.86,  the  term as Chairman  was  extended  for another period of three years in the following terms :-      "No.  8-155/73  - DP (Apptt. II), dated Shimla  2,  the 12th May, 1986.                                                   931                          Notification          In  continuation of this Department’s  Notification          of  even  number, dated  13.8.1982,  the  Governor,          Himachal   Pradesh   is  pleased  to   extend   the          appointment  of  Shri  Kailash  Chand  Mahajan   as          Chairman of the H.P. State Electricity Board for  a          further period of three years with effect from 25th          July  , 1986, on the existing terms and  conditions          of his appointment as Chairman.                                                     By Order                                                (P.K. Mattoo)                                       Chief Secretary to the                             Government of Himachal Pradesh".      There  was a further extension on 12.6.89 for a  period of 3 years and that notification read as under :-

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    "No. 8-155/73 -DP (Apptt. II) dated Shimla -2 the  12th June, 1989.                       Notification          In  continuation of this Department’s  Notification          of   even  number,  dated  12th  May,   1986,   the          Governor, Himachal Pradesh is pleased to extend the          appointment   of  Sh.  Kailash  Chand  Mahajan   as          Chairman of the H.P. State Electricity Board for  a          further period of three years with effect from 25th          July, 1989, on the existing terms and conditions of          his appointment as Chairman.      2.   The Governor, Himachal Pradesh is further  pleased to  order  that Shri Kailash Chand Mahajan,  Chairman,  H.P. State  Electricity Board shall also continue to function  as Secretary  (M.P.P. and Power) to the Government of  Himachal Pradesh.                                                     By Order                                                  (B.C. Negi)                                       Chief Secretary to the                               Government of Himachal Pradesh.                                                   932      Therefore,  it is obvious that the appointment  was  to continue upto 25.7.92.      In January, 1990, elections to the Legislative Assembly of  the  State of Himachal Pradesh were  scheduled  to  take place.  The respondent in his affidavit would aver that  the third respondent (i.e.. Mr. Shanta Kumar, the Chief Minister of  Himachal Pradesh) is alleged to have made speeches  that should  he come to power he would have the first  respondent removed from the chairmanship of the Electricity Board.   On 5.3.90, the third respondent became the Chief Minister.    A notification dated 6.3.90, came to be issued in supersession of  the notification dated 12.6.89 that the  appointment  of the  first  respondent as Chairman of the  Himachal  Pradesh State Electricity Board is extended from 25.7.89 to 6.3.90.      Another notification dated 6.3.90 was issued  directing that  Mr.  R.S.S. Chauhan shall function as  Chairman,  H.P. State  Electricity Board w.e.f. 7.3.90.  At this  stage  the first  respondent  preferred  a  Writ  Petition  No.  123/90 challenging  the validity of the notification dated  6.3.90, and  prayed for certiorari  to quash the same.   While  that writ petition was pending, on 30.3.90, another  notification was   issued  terminating  the  appointment  of  the   first respondent as Member of the State Electricity Board.      On  30.3.90,  the High Court while admitting  the  writ petition  (CWP No. 123 of 1990) ordered that no  appointment to the post of Chairman of the State Electricity Board  will be  made till further orders of the Court.  The  matter  was heard   on  22.5.90.   The  learned  Advocate   General   on conclusion  of  his  argument requested the  court  that  th judgment  may  not be pronounced since he  desired  to  seek instructions from the Government to reconsider the  impugned order  in  CWP  No. 123 of 1990.  On  11.6.90,  the  learned Advocate  General  submitted  to the  court  that  both  the notification  dated 6.3.90 and 30.3.90 would  be  withdrawn. An  undertaking to that effect was given.   Accordingly  the writ   petition  was  disposed  of.   Consequent   to   this undertaking,  by notification dated 11.6.90, the  Government of  Himachal Pradesh withdrew both the  notifications  dated 6.3.90 and 30.3.90.  However, the matter did not rest there. On  11.6.90,  a show cause notice was issued  to  the  first respondent for having abused his position as Chairman,  H.P. State Electricity Board and also ex-offico Secretary, M.P.P. & Power.  He was also asked to submit his explanation within 21  days as to why action should not be taken under  Section

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10 of the Electricity (Supply)                                                   933 Act,  1948.   Simultaneously, it was also ordered  that  the shall  be placed under suspension with immediate  effect  by virtue   of  power  under  Section  10  of  the  said   Act. Consequent upon the suspension of the first respondent,  the notification dated 16th July, 1990 came to be issued placing Mr.   R.S.S.   Chauhan,  Member   (Operations),   HP   State Electricity  Board as Chairman with immediate  effect  until further orders.      Being aggrieved by the above show cause notice and  the order  of suspension, the first respondent filed CWP 303  of 1990  on 12.6.90.  The High Court while admitting  the  writ petition granted interim stay of the order of suspension.      On  22.6.90,  the  Chief  Secretary  of  the  Govt.  of Himachal  Pradesh  wrote  to the  Secretary,  Government  of India,   Ministry of Home Affairs, New Delhi requesting  for permission to promulgate Electricity (Supply H.P. Amendment) Ordinance,  1990.   It  was stated in  the  letter  that  at present no age limit has been prescribed for holding  office of  the  Member  of  the State  Electricity  Board,  it  was necessary to prescrible an upper age limit.  The concept  of terminal appointment at which a person should cease to  hold judicial   offices   and  civil  posts  is   entrenched   in administrative and constitutional system.  Therefore, it was proposed through the ordinance that no person above the  age of 65 years could be appointed and continued as Chairman  or Member of H.P. State Electricity Board.  This provision  was not  only to apply to future appointments, but also  to  the existing  Chairman  and  Members,  and  where  the  existing incumbent’s tenure is curtailed adequate compensation  could be provided.  No doubt, rules could be framed under  Section 78  of the Electricity (Supply) Act, 1948.  But those  rules cannot  have  retrospective operations, hence  the  proposed ordinance.      On 9.7.90, the Government of India replied pointing out the  desirability  of the State  Government  examining  with reference  to  the relevant provisions of the  Act  and  the constitution  about  the promulgating the  ordinance.   This State  was  also  advised  to  explore  the  feasibility  of amending the rules.      On  13.7.90, the Governor   of Himachal Pradesh  issued an  ordinance,  i.e. H.P. Ordinance Rule of  2/90,  amending Section  5  (6)  of  the  Electricity  (Supply)  Act.    The ordinance reads to the following effect :_                                                   934              "AUTHORITATIVE ENGLISH TEST".                            H.P. ORDINANCE No.........of 1990. THE  ELECTRICITY  (SUPPLY)    (HIMACHAL  PRADESH   AMENDMENT) ORDINANCE, 1990          Promulgated by the Governor of Himachal Pradesh  in          the Forty-first year of the Republic of India.          An Ordinance to amend the Electricity (Supply) Act,          1948   (Central  Act  No.  54  of  1948)   in   its          application of the State of Himachal Pradesh.          Whereas  the Legislative Assembly of the  State  of          Himachal Pradesh is not in session and the Governor          is satisfied that circumstances exist which  render          it necessary for him to take immediate action;          And  whereas  instructions from  the  President  of          India   to  promulgate  the  Ordinance  have   been          obtained;          Now, therefore, in exercise of the powers conferred          by clause (1) of Article 213 of the Constitution of          India, the Governor of Himachal Pradesh is  pleased

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        to promulgate the following Ordinance :-          1.  This  Ordinance may be called  the  Electricity          (Suppy) (Himachal Pradesh Amendment) Ordinanc,1990.          2.   In  Sub-section  (6)  of  section  5  of   the          Electricity  (Supply) Act, 1948, for the words  "if          he is a member of parliament", the words "if he has          attained  the  age of 65 years or is  a  member  of          Parliament" shall be substituted.          3.  (1)  Notwithstanding anything to  the  contrary          contained  in  any provisions  of  the  Electricity          (Supply) Act, 1948, rules, regulations or  bye-laws          made thereunder or in any judgment, decree or order          of  the  Court, any appointment,  made  before  the          commencement of the Electricity (Supply)  (Himachal          Pradesh  Amendment)  Ordinance,  1990,  whereby   a          person has                                                   935          a right to continue as a member of the Board  after          attaining  the age of 65 years, shall be void;  and          on  such  commencement he shall be deemed  to  have          ceased to hold office of the Member of the Board.          (2)  On ceasing to hold office of the member of the          Board  under sub-section (1), such member shall  be          entitled to a compensation as may be determined  by          the  State Government; but such compensation  shall          not  exceed the amount equivalent to the amount  of          salary  and  allowances  payable  to  him  for  his          unexpired term.                                                   B. Rachaiah                                                      Governor      Shimla      The ...... 1990."      As  a  sequel  to  the issue  of  this  ordinance,  the following notification was issued on 16.7.90 :-           "Government of Himachal Pradesh           Department of Personnel (AP - II)      No. 8-155/71 -DP (Apptt. II) Dated, Shimla -2, the 16th July, 1990.                        NOTIFICATION          Whereas   as  a  result  of  promulgation  of   the          Electricity  (Supply) (Himachal Pradesh  Amendment)          Ordinance  1990,  vide Notification No.  LLR-D  (6)          8/90- Legislation dated 13th July, 1990,  published          in the Rajpatra dated 13th July, 1990, Shri Kaialsh          Chand  Mahajan,  Chairman, H.P.  State  Electricity          Board, having already attained the age of more than          sixty-five,  years, has ceased to be Member of  the          H.P.  State  Electricity  Board  and   consequently          Chairman of the said Board.      NOW, THEREFORE, in exercise of the powers vested in him under  sub-section  (5)  of section  5  of  the  Electricity (Supply)  Act,  1948,  the Governor,  Himachal  Pradesh,  is pleased to appoint Shri R.S.S. Chauhan, Member  (Operation), H.P. State Electricity Board as Chairman of the HP                                                   936 State Electricity Board with immediate effect, till  further orders.                                                      By Order                                                M.S. Mukherjee                                         Chief Secretary to the                                     Govt. of Himachal Pradesh.      Aggrieved  by  the  ordinance  dated  13.7.90  and  the above notification dated 16.7.90, the first respondent filed CWP  No.  396 of 1990, praying for certiorari to  quash  the ordinance as well as the  notifications.

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    Inter  alia,  the first respondent as  writ  petitioner before the High Court urged that there has been a deliberate attempt  on the part of the State to get rid of him  through the ordinance.  The same is violative of Articles 14 and  16 Constitution.   In so far as he is the only person  affected by  the ordinance having crossed the age of 65, he had  been singled  out for a total discriminatory treatment.  It is  a colourable  exercise of power.  While obtaining the  consent of  the President of India with regard to a subject  falling under the Concurrent List, it was not even let known that  a writ   petition   was  actually   pending   concerning   the petitioner.   There  had been a  deliberate  concealment  of facts.  In any event, the Chief Minister (who was the fourth respondent)  was activated by malafides.  He was  determined to  remove  the  writ  petitioner, as he  held  out  in  the election meeting.      The  State  filed a detailed  counter  affidavit.   The court  respondent (the Chief Minister)  specifically  denied the  allegations of malafides and urged that  the  ordinance came to be issued since a policy decision had been taken  to introduce  age  of superannuation fixing the  limit  at  65. During the pendency of the writ petition, the ordinance came to be replaced by the Electricity (Supply) (Himachal Pradesh Amendment) Act, 1990 (H.P. Act of 10 of 1990). Therefore, an application  for  amendment was taken  out  challenging  the validity  of the amending act.  Before the High  Court,  the following points were urged :-       (i) malafides -           (a) against the Chief Minister; and                                                   937             (b) against the legislature.          (ii)  the act was unconstitutional  and  arbitrary.          In  that  it  had been passed to  get  rid  of  the          petitioner, though a single person legislation  was          permissible in law, yet where the discrimination of          the  petitioner  was  wholly  unjustified  such   a          legislation would be bad in law.          (iii)    The  enactment was void  as  violative  of          Article 254.          (iv)    It was also violative of Article 21  as  it          damaged  the  reputation  of  the  writ  petitioner          therein.          (v)  Section  3(1) of the Ordinance/Act  renders  a          judgment of the court void and was unconstitutional          as being excessive legislative powers in so far  as          it impinges upon the judicial field.          (vi)   Inasmuch as the right of the  petitioner  to          continue as a Member/Chairman of the Board had been          taken  away,  it is violative of Article  19.   The          compensation  provided under section 3(2) is  vague          and illusory.          (vii)    Section  3(1)  does  not  apply   to   the          petitioner at all.      The Division Bench held that the evidence furnished  by the petitioner in the form of newspaper reports would not be enough  to  hold that the Chief MInister  had  any  personal bias.  The legislature as a body cannot be accused of having passed  a  law  for an extraneous  purpose.   Therefore,  no malafides could be attributed to the legislature.      Dealing  with  the repugnancy it was held that  by  the impugned  ordinance of the Electricity (Supply) Act, an  age of  superannuation has been brought in.  There was  no  such age prescribed by the Central Act.  Therefore, there was  no repugnancy.      By  mere  curtailment of the term as  Chairman  of  the

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Board   without   any  mention  about   his   inability   or professional  competence, so as to affect his reputation  in any  manner, no injury had taken place so as to complain  of violation  of Article 21 of the Constitution.  The  plea  of interference with judicial power was negatived.  The plea of violation  of Article 19 that the provision of  compensation is illusory was negatived.                                                   938      On  an elaborate consideration of violation of  Article 14,  the court after referring to the leading  decisions  of this  court concluded that prescription of maximum   age  by the amending act at 65 years cannot be said to be  arbitrary or irrational.  Moreover public interest demands that  there ought to be an age of retirement  in public services.      On  the ancillary question whether the legislation  had been enacted only with a view to get rid off the  petitioner and   whether  it  would  be  bad  as  a   single   person’s legislation,  it  was held that there  was  nothing  illegal about  it.  In relation to applicability of Section 3(1)  of the amending act to the petitioner, the High Court construed that Section 3(1) will apply only to an appointment where  a person  has a right to continue after the attainment  of  65 years.   If,  therefore, the petitioner had  been  appointed after  he had attained the age of 65 years, he would not  be affected by Section 3(1).  Any contrary inference would  not be  justified by its language.  It was also held  that  when Section 5(6) precluded the petitioner from "being a  member" of  the Board after he had attained 65 years of  age,  would not help the State as it would apply only prospectively.  We may  also  refer  to that particular  argument  advanced  on behalf  of  the State that Mr. R.S.S.  Chauhan  having  been appointed as Chairman, he ought to have been impleaded as  a party.  The court rejected the plea not only on  the  ground that  he was not a necessary party,  but also on the  ground that his appointment was only "until further orders."      In the result, the notification dated July, 17 1990 was quashed.   It  is under these circumstances,  Special  Leave Petition was preferred to the court.  By an order dated  5th August, 1991, special leave was granted.  Hence, this  Civil Appeal.      Mr.  Shanti Bhushan, learned counsel appearing  for  th State of Himachal Pradesh after taking us through the orders of appointment and the extensions would urge that though the inapplicability of the Ordinance or Acts was not raised, the High Court had allowed the argument.  In other words, it was never urged that the Ordinance/Act was not applicable to the first respondent.  A bare reading of Section 2 which amended Section 5 (6) of the Electricity (Supply) Act and Section  3 of the amending act, both individually and conjoinly lead to the  only conclusion that the Act disqualifies every  person from  holding office who on the date of  enactment,  namely, 13th July, 1990 is above 65 years.                                                   939      The   Act  on  its  own  terms  makes  no   distinction whatsoever  between those persons who have already  attained the  age of 65 years on the date of enactment or  those  who are  less than 65 years.  Therefore, the High Court was  not right  in  introducing an artificial distinction.   For  the purpose of his argument he would submit that Section 5(6) as amended, would disqualify all persons who are at the time of the amendment 65 years or above.  The language is very  wide in  its  comprehension.   When  it  says  "or  being",  this corresponds  to  Article 102 of the Constitution as  well as Article 191, this provision being made applicable either  to the Members of Parliament or to the legislative body of  the

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State  respectively.   It  has been held  in  Pasupati  Nath Sukul,  Election Commission of India, State of U.P.  v.  Nem Chand  Jain  and Others, [1984] 2 S.C.C., 404  that  on  the incurring  of  the qualification he ceases to  be  a  member thereof.   Therefore, there is a automatic cessation of  the right  to  hold office,that is the purpose of  "or   being’. These  is  no necessity to remove the first  respondent,  by resorting  to  Section  10 because Section 5  (6)  is  self- executory.   Therefore,  by  operation  of  law,  the  first respondent ceases to hold office on the date of coming  into force of the amending Act.      In  Election  Commission, India v. Saka  Venkata  Subba Rao,  [1953]  S.C.R.  1144,  it has  been  held  on  similar language  occurring in the Constitution that  it  postulates both  existing and supervening disqualification.  If  it  is the  avowed  policy  of the State to  prescribe  an  age  of superannuation,  certainly  nobody could have  a  legitimate complaint.   In fact, there are identical State  legislative enactments in Andhra Pradesh and Uttar Pradesh specifying an age   of   superannnuation.   This  court  upheld   such   a prescription in several cases.  Hence, the first  respondent cannot  complain  that he could  continue  indefinitely  and others be retired at the age of 65.      Section  3 of the amending Act was given  retrospective effect   from   13.7.90.   This   Section   presupposes   an appointment  prior to amendment, namely, prior  to  13.7.90. In  this  case, the appointment gives a  right  to  continue after attaining the age of 65 years.  If, therefore, the two tests  are  answered,  the  appointment  is  rendered   void irrespective  of the fact when the appointment  tool  place. The  "Objects  & Reasons" of the Act put the  matter  beyond doubt.  In our country, the concept of age of superannuation is   entrenched   both   in  administrative   as   well   as constitutional systems.  Public policy requires to prescribe the  age  of  65  years for retirement  of  the  members  of Electricity Board as in the case of High Court Judges, mem-                                                   940 bers of tribunal and other high functionaries.      The High Court had gone wrong as though the appointment of  the  first respondent was not covered  by  Section  3(1) since  the right to continue as Chairman was pursuant to  an appointment  after  he  had attained the age  of  65  years. Factually  this is incorrect because the appointment of  the first respondent as Chairman was on 13.8.82.  Thereafter the same  appointment  came to be extended from  time  to  time. Each   of   those  extensions  cannot   constitute   a   new appointment.  It is one appointment which is being continued from time to time.  Legally speaking, also, the reasoning of the   High   Court   is   wrong   because   it   leads    to unconstitutionality.  In that case persons who attained  the age  of 65 years after the amending Act would be obliged  to retire  while  the older persons like the  first  respondent would  remain  in  office.   This  will  clearly  amount  to discrimination.   Thus either by way of Section 5(6) of  the Electricity  (Supply) Act, as amended or under Section  3(1) of  the  amending Act, the first respondent would  cease  to hold  office.   As  a matter of fact,  Section  3  has  been introduced  only by way of abundant caution.  It is also  to be noted that Section 3(1) contains a ‘non obstante’  clause and  it renders any judgment contract/order or  contrary  to this  Sub-section void.  The legislature has introduced  the non obstante clause to put the matter beyond doubt.      This  legislation  is  general  in  its  terms  and  it application.   The  fact that at the relevant  time  of  the amending  Act  or even the ordinance, the  first  respondent

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alone was affected is no ground to hold that it is a  single person’s legislation.  This court, as a matter of fact,  has upheld such pieces of legislation in Chiranjit Lal chowdhury v.  The  Union  of  India  and  Ors.,  [1950]  S.C.R.   869, (particularly  the passages occurring at pages  878-79).  On the  basis of its ruling it is submitted that even if it  is held  a  single person’s legislation, if  he  constitutes  a class  by himself, such a legislation would be  valid.   The same  principle is stated in Thakur Raghubir Singh and  Ors. v. The State of Ajmer (Now Rajasthan) & Ors., [1959]  S.C.R. 478.  Again in Lachhman Das on behalf of firm Tilak Ram  Ram Bux v. State of Punjab and Ors., [1963] 2 S.C.R. 353 @  374, it  has been held that a law applying to one person  or  one class  of persons is constitutional if there  is  sufficient basis  or  reason  for it.   In  Tilkayat  Shri  Govindlalji Maharaj  v. The State of Rajasthan & Ors.,  [1964] 1  S.C.R. 561  where  a legislation was confined only to  one  of  the temples, it was held not to be in violation of Article 14 of the  Constitution.   To the similar effect are  S.P.  Mittal etc. etc.                                                    941 v.  Union of India & Ors., [1983] 1 S.C.R. 729 and in  State of Uttar Pradesh v. Lakshmi Ice Factory & Ors., [1962] Supp. 3  S.C.R. 59.  Again, in Lalit Narayan Mishra  Institute  of Economic Development and Social Change, Patna etc. v.  State of  Bihar & Ors. etc., [1988] 3 S.C.R. 311, even though  the Act  was  general in terms and applied to only  one  of  the institutions  at  the relevant time, having  regard  to  the policy of nationalisation, it was upheld.  The case of  D.S. Reddy  v.  Chancellor, Osmania University & Ors.,  [1967]  2 S.C.R.  214,  has no application to the facts  of  the  case because though the Act was general in its application,  yet, it applied to only one individual who was when occupying the post of Vice Chancellor of Osmania University.  Thus, it  is submitted  as  read  from  the  statement  of  ‘Objects  and Reasons’ of the amending Act, if the policy to  superannuate at  the  age of 65 is in order to give full  effect  to  the policy,  provision will have to be made for those  who  have attained the age of 65 also.  This is what Section 3(1) aims at.      Looking   it  form  that  point  of  view  this  is   a legislation which applies to all.  The chance that the first respondent was affected at the relevant time by introduction of  this  legislation  will  not in  any  manner  render  it violative  of Article 14 on the ground that it is  a  single person’s legislation.      If  the  law  is settled that  no  malafides  could  be attributed   to  the  Legislature,  an  argument  that   the amendment  has  been passed only with a view to  punish  the first  respondent is not available to the first  respondent. The  next submission of the learned counsel is that  in  the place of first respondent, Chauhan had come to be  appointed as Chairman, therefore, he ought to have been impleaded as a party.   The effect of non-impleading Chauhan will be  fatal to  the  writ petition as laid down in State of  Kerala  and another v. Miss Rafia Rahim etc., A.I.R. 1978 (Kerala),  176 as  well as Padmraj Samarendra and others v. State of  Bihar and Anr., A.I.R. 1979 (Patna) 266.  In both the cases  where the petitioners were challenging the selection, it was  held the  selectees were necessary parties as they were  affected by  the decisions of the court.  Therefore, if they are  not impleaded  no relief could be granted in favour of the  writ petitioners  even  though on merits  the  petitioners  could succeed.      Even otherwise, today, the principle of natural justice

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has assumed great importance.  It by reason of the  decision of  the  court Chauhan is ultimately affected, and  if  that decision is rendered without hearing                                                   942 Chauhan,  it  would  amount  to a  clear  violation  of  the principle of natural justice.  An order passed in  violation of  that  salutory provision of natural justice would  be  a nullity.   As a matter of fact, if Supreme Court  passes  an order  that would amount to nullity is what this  court  has laid  down in.  In A.R. Antulay v. R.S. Nayak & Anr,  [1988] Supp  1 SCR 1 @ 59.  Therefore, for the failure  to  implead Chauhan  the writ petition was liable to be dismissed.   The contrary  view taken by the High Court that though he  is  a proper party but not a necessary party, or that Chauhan came to  be appointed "until further orders" and,  therefore,  he need not be impleaded, is wrong.      Mr. Kapil Sibal took us through the background in which the  impungned  ordinance and th Act came to be  passed.  He would submit that it had a great bearing on the legal issues involved in this case.  The State of Himachal Pradesh  tried its  level  best  to get rid of the  Service  of  the  first respondent.   At first it issued a notification whereby  the right to continue as Chairman was interfered with.  That was questioned  in W.P. 123/90.  Finding the judgment was  going against  the  State, the State withdrew  the  notifications. Thereafter,  the State came forward with charge  memo  under suspension order.  They are pending in writ proceedings  and an  interim  stay of suspension is in  operation.   At  this stage,  the  ordinance is brought in because  the  executive method  failed  to  bring  about  the  termination  of   his services.   At the relevant date of the ordinance no  person other than the first respondent was affected.  In fact,  the State  while  writing for sanction for  issue  of  ordinance specifically mentions about this respondent by name.  But at the same time it would conceal from Govt.  of India the fact of the matter being sub judice.  Though the Govt.  of  India would request exploration of the possibility of amending the rules  under  Section  78 of the  Electricity  (Supply)  Act because the rule could not have restrospective operation and the  first  respondent  could  not be  reached  by  such  an amendmentof the rules resort is had to the ordinance  making power under Article 213 of the Constitution.      Section 3(1) was aimed at only against this respondent. This is undeniable.  While the ordinance was under challenge in writ petition before the High Court the amending Act came to  be passed.  This back-ground has to be kept in  mind  to appreciate   the   submissions  made  on  behalf   of   this respondent.                                                   943      Under  the  Electricity  (Supply) Act,  there  are  two provisions dealing with the appointments.  One Section 5 and the  other  is  Section 8.  The former  Section  deals  with initial   appointment   whilst   Section   8   deals    with reappointment.      What   the  amending  Act  does  by   prescribing   the disqualification  under  Section 5(6) is to  prevent  future appointments  after  attaining the age of  65  years.   But, even,  here,  there is no automatic cessation of  office  on attaining  the age of 65 years.  While there is a power  for removal  when a Member or Chairman of the Electricity  Board becomes  a Member of Parliament, he could be  removed  under Section  10,  there  is no such power in the  event  of  the Member  or Chairman incurring the disqualification  of  age, namely,  the  attainment  of  65  years.   Hence  by  merely amending  the  law,  it  cannot  be  urged  that  the  first

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respondent  having  attained the age of 65 ceases  to  be  a Member  or  Chairman of the Electricity  Board.   Therefore, Section 5(6) will not help the appellant.      Coming  to  Section 8 that  deals  with  reappointment. Such a reappointment is governed by the terms and conditions as prescribed.  The word "prescribed" means prescribed under the rules.  The rule making power is contained under Section 78(2)  (a).   Rule  4  as  originally  stood  governed   the reappointment  stating it could be under such conditions  as the  State  Govt. may from time to time, by  order,  direct. There  is  a proposal to amend the rule.  Even  under  those rules namely Rules 3 and 4, the reappointment is thought of. While  care has been taken in this regard no  amendment  has been effected to Section 8 prescribing the age limit of  65. As a matter of fact, for a tenure appointment under  Section 8,  there never be a prescription of age of  superannuation. Such an appointment is beyond the pale of Section 5.   Thus, it is submitted Sections 5,8,10,78 (2) (a) provide a  scheme more  so  when Section 10 does not prescribe the  age  as  a disqualification.      In  no  statute  an upper age limit  could  ever  be  a disqualification, of course, the minimum age of  recruitment can  be prescribed.  But no an upper age limit for a  tenure appointment.   It is common knowledge that only  experienced persons  even  after retirement are appointed  as  Chairman, having regard to the vast experience and wide knowledge.      On  the factual aspect, it is submitted by the  learned counsel, though the notifications dated 12.5.86 and 12.6.89, use the word "extension" it is                                                   944 nothing  but reappointment. As a matter of fact the  counter affidavit  of  the State makes it clear that  the  order  of reappointment  came to be passed under Section 5  read  with Section  8 rule 4.  The statement of ‘Objects  and  Reasons’ also makes a reference to Section 8.  Thus, both legally and factually Section 5(6) cannot help the State.      Much cannot be made of the words "or begin" brought  in by  way of amendment  of Section 5(6).  This  only  connotes the  attainment of age of 65 subsequent to the  appointment. When  the  Constitution  uses similar  language  both  under Articles  102 and 191, it made it clear that under both  the Articles  101  as  well  as 190,  the  seat  falling  vacant retrospectively on the incurring of such a  disqualification there  is no automatic cessation provided under Section  10. Thus  the words "has attained" occurring under Section  5(6) assumes great importance because there is no provision under Section  10   prescribing age of  disqualification  and  the consequent removal.  Even under Section 5(6), it supposes  a person  being appointed before the age of 65  and  attaining the  age  of 65.  Such a contingency does  not  arise  here. Therefore,  it is submitted that Sections 5(6) and  3(1)  of the  amending  Act should be rad together.  As  regards  the amending  Act,  it  cannot be denied that  on  the  date  of ordinance it applied only to the respondent and nobody else. While Section 5(6) takes care of future appointment  Section 3(1)  deals  with reappointment.  On the date  of  ordinance Section  5(6)  would  apply  to  nobody  else  because  this respondent  alone  was holding a  tenure  appointment.   The legislation was brought about only with a view to unseat the respondent.   There  can  be a  single  persons  legislation provided  it is in furtherance of legislative objects.   The burden is on the State to prove the reason or the basis  for this legislation.  Such a burden had not been discharged.      Certainly,   the  reappointment  stand   apart.    They constitute  a  class  by  themselves.   A  person  initially

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appointed cannot be compared with a reappointee.  The former falling  under  Section 5(6) and the  latter  falling  under Section  8.  If the respondent had been appointed after  the age  of  65, he forms a class by  himself.   Therefore,  the State  will  have  to be sore what  exactly  is  the  public purpose served or a social or economic obligation.  Further, as a matter of fact, this was the test applied in all single person’s  legislation.   In all such cases whenever  it  was upheld  either it was on the ground of mismanagement of  the institution or a mill, or because it was in furtherance of a public purpose or a social or economic obligation.                                                   945 In fact, in Ram Prasad Narayan Sahi and another v. The State Bihar   and  Others,  [1953]  S.C.R.  1129  the   mill   was mismanaged.   In Lalit Narayan Mishra Institute of  Economic Development  and Social Change, Patna etc v. State of  Bihar and  Others etc., [1988] 3 S.C.R 311, the institute was  not only  mismanaged, of course, the policy was  to  nationalise all  the  institutions.   Similarly, in  Shri  Ram  Krishana Dalmia  v.  Shri Justice S. R. Tendolkar  &  Others,  [1959] S.C.R. 279, and in Lachhman Das on behalf of Firm Tilak  Ram Ram Bux v. State of Punjab and Others, [1963] 2 S.C.R.  353, the  same  test was applied.  Likewise in  Swastik.   Rubber Products  Ltd.  etc. etc. v. Municipal  Corporation  of  the City of Poona & Anr., [1982] 1 S.C.R. 729, it was a case  of mismanagement  of industrial project.  The case of  Tilkayat Shri  Govindlalji  Maharaj  v. The State  of  Rajasthan  and Others, [1964]1 S.C.R. 561, Nathdwara Temple where there was misapprobation  of  jewellery,  likewise  in  the  case   of Jagannatha Temple.  Thus, it is clear but for  mismanagement or  subserving  a  public  cause or  a  social  or  economic obligation, such pieces of single person’s legislation would not have been upheld.      Certainly,  there  may  be  a  legislation  in  general application  and it may apply to an individual; but that  is not the case here.  On the date of the coming into force  of the Act this responent alone was affected.  The amending Act itself  makes a discrimination without any justification  or rationale.   If the respondent is treated alongwith  others, it would amount to treating unequals as equals.      Thus,  it is submitted two principles will have  to  be applied  (1)  the  respondent having  been  appointed  under Section 8 constitutes a class; and (2) if the appointment of the  respondent is sought to be brought out under Section  5 it will bring a discrimination treating unequals as  equals. Therefore,   the  law  will  have  to  be  struck  down   as discriminatory  and not that this respondent is  attributing malafides to the legislature.      Of course, in The Atlas Cycle Industries Ltd.   Sonepat v.  Their Workmen, [1962] 3 S.C.R. 89 case, it applied  only to one individual.  But that case is distinguishable for  of two  reasons - (a) the benefit of extension was  granted  to the  individual  and it was not an adverse order and  (b)  a number  of industrial adjudications were pending before  the authority whose permission was extended.      As  regards impleading Chauhan, it is  submitted  where this respon-                                                   946 dent would choose to question the vires of the ordinance  in the Act, there was no need to implead Chauhan at all.  As  a matter of fact, this respondent could not have asked for any relief  against Chauhan.   Even otherwise, for an  effective adjudication of the points in issue there is no need for the presence of Chauhan.  In support of the submission  reliance is  placed on A. Janaradhana v. Union of India  and  Others.

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[1983] 3 S.C.C. 601 @ 626.      Beside,  the  order  of appointment of  Chauhan  it  is stated  "consequent until further orders."   Therefore,  the court could grant relief even in his absence.  The cases the side has cited can have no application because they  related to  selection under one scheme only on the  displacement  of selectees.   The writ petitioners could be  granted  relief. In  fine it is submitted that where substantial justice  has been  done by allowing the first respondent in office  until expiry of his term in July, 1992 by exercise of power  under Article  136 this court will not interfere as laid  down  in Pritam Singh v. The State, [1950] 1 S.C.R. 453.      Mr.  Shanti Bhushan in his elaborate reply would  state that  Section 5(2) is the only source of appointment -  both initial as well as reappointment.  Section 8 only deals with tenure.   Section  3(1) of the amending Act  corresponds  to Articles  101(3)  or 190(3). Therefore, it brings  about  an automatic cessation of office.      It  is incorrect to contend that for a tenure post,  it is not proper to prescribe an age limit.  Instances are  not wanting where statutory provisions have been made to such an effect.    For instance, Article 224 of the Constitution  in relation  to  the Addl.  Judge.  Likewise Section 8  of  the Administrative  Tribunals Act.  Disqualification on  account of age, therefore, could be prescribed statutorily.   Having regard to the words "or being" occurring under Section 5(6), the  Section  alone  would be enough to  deprive  the  first respondent of his office after attaining the age of 65.   In this regard the learned counsel cites American Jurisprudence (2nd Ed) vol 63, para 42.      The  purpose  of Section 3 is two-fold-one, by  way  of abundant caution it provides for cessation of office, though Section  5(6)  itself would be enough.  Secondly,  it  takes away  the right to emoluments after attaining the age of  65 and   substituting  by  compensation, not withstanding   the contract  to  the  contrary.  Section 10(1)(d)  is  only  an enabling  provision.  That does not, in any  manner,  effect the operation of Section 5(6).  It is incorrect                                                   947 to submit that this is a single person’s legislation.  It is of  general application and it so happened on  the  relevant date that the first respondent came to be affected.  Lastly, it is submitted on the basis of B. Prabhakar Rao and  Others v.  State of Andhra Pradesh and Others, [1985] Supp.  S.C.C. 432, that there is no need to dislodge Chauhan from  office, after  all,  he  had been continuing so  long.   He  may  be allowed for the remaining period of the tenure of the  first respondent.   The  court itself could fix  the  compensation instead of even relegating matter to the State.      Having  regard  to the above arguments,  the  following points arise for our determination :-          (i)  The power of appointment under Section  5  and          the  scope of Section 8 and 10 of  the  Electricity          (Supply) Act, 1948.          (ii)  The effect of amendment under Section 5(6) of          the said Act.          (iii)   The  scope  of  Section  3  of  Electricity          (Supply) (H.P. Amendment) Act of 1990.  Whether  it          is violative as single person’s legislation.          (iv)  Whether the failure to implead Chauhan  would          be fatal to the writ petition.      We  will  now deal with these points.   In  the  normal course of events the first respondent would have  continued, by   virtue  of  his  extension,  upto  25.7.92.    However, consequent to the Assembly  Elections held in the  beginning

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of  1990, there was a change of the Government.  The  fourth respondent  became  the Chief Minister.  From then  on,  the first  respondent met with an avalanche of  misfortune.   He received  successive  blows.  Hence he was obliged  to  wage legal  battles.   That is why  the learned counsel  for  the first  respondent  would urge that all these  attempts  were only with the sole aim of removing the first respondent from office. the Executive having failed in its attempt  resorted to  legislative process.  It is unethical to do so.  We  are afraid,  we  cannot decide the case on ethics.   We  are  to judge the law and the correctness of the legal provisions as we  see  then.  Therefore, we are to move from  the  ethical plane to the legal plane.      In  this case the State wants to introduce the  age  of superannuation                                                   948 prescribing  an  upper age limit of 65 for the  Members  and Chairman  of  the Electricity Board.  As a matter  of  fact, hitherto,  no  such  limit  was  found  in  the  Electricity (Supply)  Act, 1948 (hereinafter referred to as  the  Supply Act).   Before  the  introduction  of  the  amendment,   the appellant State of Himachal Pradesh wrote on 22.6.90 to  the Government of India, Ministry of Home Affairs for  procuring prior instructions from the President of India, as envisaged in  clause  (1)  of Article 213 of  the  Constitution.   The subject matter of the proposed ordinance falls under item 38 of  List  III  (List  III of the  Seventh  Schedule  of  the Constitution  of  India).  Item 38 deals  with  electricity. Where, therefore, it was proposed to amend Section 5 of  the Supply  Act (Central Act 54/48), in its application  to  the State  of  Himachal Pradesh it had to be  reserved  for  the consideration  of the President under Article 254(2) of  the Constitution.  This was because if a Bill containing similar provision after having been passed by the State  Legislature required   to  be so reserved for the consideration  of  the President  of India.  However, it is important to note  that in  this  letter it was categorically stated  that  in  most administrative  systems of the world an outer age  limit  is provided.   Such  a  provision is found  with  reference  to judicial  officers  and  civil posts and  is  entrenched  in administrative and constitutional systems.  Having regard to the  desirability of providing for a terminal point of  time beyond  which  a  Chairman  and the  Members  of  the  State Electricity Board must cease to hold office by operation  of the  statute, it was proposed to prescribe the age limit  at 65 for retirement of the Chairman/Members of the Board.      The same point is reiterated as seen from the statement of  ‘Objects and Reasons’ for the Bill No. 6 of 1990,  which later  on  became  Act 10 of 1990.  We will  now  quote  the relevant  portion  of  the said  statement  of  Objects  and Reasons.          "Section  8 of the Electricity (Supply)  Act,  1948          (Act No. 54 of 1948) provides that the Chairman and          other Members of the State Electricity Board  shall          hold  office for such period and shall be  eligible          for reappointment under such conditions, as may  be          prescribed.   In other words no provision has  been          made in respect of maximum age or period upto which          a  person  may serve as Chairman or Member  of  the          Board.   Indeed, the provision after mandatory  age          of  superannuation or specification of  age  beyond          which an incumbent must cease to hold                                                   949          office   is   vital   and   essential.    In   most          administrative  systems of the world, an outer  age

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        limit is provided.  In our own country the  concept          of  the age of superannuation, in other  words  the          concept  of  the terminal point at which  a  person          should  cease  to hold judicial offices  and  civil          posts,  are  entrenched in our  administrative  and          constitutional  systems.   Public  policy  requires          that  the  concept  of  superannuation  should   be          applied  to  civil  posts  and  offices.   It  was,          therefore, decided to prescribe the age of 65 years          for  retirement of the Members of  the  Electricity          Board, as the retirement age of High Court  Judges,          Members of the Administrative Tribunal, Members  of          Public   Service   Commission   and   other    high          functionaries   has   also   been   fixed.     This          necessitated  the  amendments  in  the  Electricity          (Supply) Act, 1948 in its application to the  State          of Himachal Pradesh".      Therefore, what does the State desire to do?  It  wants to embark on a policy of retirement of the  Chairman/Members of  the  Electricity  Board after attaining the  age  of  65 years.  This Court is least concerned with the wisdom of the policy.      Certainly,  no one could quarrel with the  introduction of  that  measure  as of policy.  In  fact  this  Court  has repeatedly  recognised  such a right of the  State.   It  is enough  if we quote K.Nagaraj & Anr. etc. etc. v.  State  of Andhra Pradesh & Anr. etc. A.I.R. 1985 S.C. 551.  In para 7, the court had occasion to observe thus :-          "Barring a few services in a few parts of the world          as,  for example, the American Supreme  Court,  the          terms  and  conditions  of  every  public   service          provide  for  an age of  retirement.   Indeed,  the          proposition  that  there  ought to be   an  age  of          retirement in public services is widely accepted as          reasonable   and  rational.   The  fact  that   the          stipulation as to the age of retirement is a common          feature  of all of our public services  establishes          its  necessity,  no less than  its  reasonableness.          Public  interest demands that there ought to be  an          age of retirement in public services.  The point of          the  peak  level of efficiency is bound  to  differ          from  individual  to  individual  but  the  age  of          retirement cannot obviously differ from  individual          to individual                                                        950          for  that  reason.   A  common  scheme  of  general          application governing superannuation has therefore,          to be evolved in the light of experience  regarding          performance  levels  of  employees,  the  need   to          provide  employment  opportunities to  the  younger          sections  of  society  and  the  need  to  open  up          promotional opportunities to employees at the lower          levels  early  in their  career.   Inevitably,  the          public   administrator   has   to    counterbalance          conflicting  claims  while determining the  age  of          superannuation.   On the one had,  public  services          cannot  be  deprived of the benefit of  the  mature          experience of senior employees; on the other  hand,          a  sense  of frustration and stagnation  cannot  be          allowed  to  generate in the minds  of  the  junior          members of the services and the younger section  of          the  society.  The balancing of  these  conflicting          claims   of  the  different  segments  of   society          involves  minute questions of policy which must, as          far  as  possible, be left to the judgment  of  the

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        executive   and  the  legislature.   These   claims          involve   considerations  of  varying  vigour   and          applicability.     Often,   the   Court   has    no          satisfactory  and effective means to  decide  which          alternative, out of the many competing ones, is  th          best in the circumstances, of a given case.  We  do          not suggest hat every question of policy.  Were  it          so  this  Court would have  declined  to  entertain          pricing  disputes covering as wide a range as  case          to mustard-oil.  If the age of retirement is  fixed          at  an  unreasonably  low level so as  to  make  it          arbitrary and irrational, the court’s  interference          would be called for, though not for fixing the  age          of   retirement   but  for   mandating   a   closer          consideration  of  the matter.  "Where  an  act  is          arbitrary, it is implicit in it that it is  unequal          both    according    to   political    logic    and          constitutional  law and is therefore, violative  of          Article  14; E.P. Royappa v. State of  Tamil  Nadu,          [1974]  2  SCR 348-AIR 1974 SC  555".   But,  while          resolving  the validity of policy issues  like  the          age  of  retirement, it is not proper  to  put  the          conflicting  claims in a sensitive  judicial  scale          and  decide the issue by finding out which  way  th          balance  tilts.   That  is an  exercise  which  the          administrator   and   the   legislature   have   to          undertake."      For adumbrating this policy a legislation is enacted by the  State.   It is not for this court to find  out  whether there  was any need for such a legislation.  Of course,  for lack of legislative competence or for violation                                                   951 of the right to equality under Article 14 etc. the  validity of the legislation may be scrutinised.  But, certainly, that is  far from saying the court could examine the  legislation from  the  point  of view that it came  to  be  passed  with malafide intention.  By long established practice, which has received  approbation through authorities of this Court,  it has  always  refrained from attributing  malafides   to  the legislature.  In fact, such a thing is unknown to law.  Here again, we can usefully refer to the case K. Nagaraj & Others etc.  etc.  v. State of Andhra Pradesh and  Anr.  etc.,  AIR 1985, 551.  In para 36 it is stated as:-          ".... The legislature, as a body, cannot be accused          of  having passed a law for an extraneous  purpose.          Its  reasons for passing a law are those that   are          stated in the Objects and Reasons and if, none  are          so stated, as appear from the provisions enacted by          it.   Even assuming that the executive, in a  given          case,   has   an  ulterior  motive  in   moving   a          legislation, that motive cannot render the  passing          of  the  law malafide.  This kind  of  ‘transferred          malice’ is unknown in the field of legislation".      It  is  in this background, therefore,  we  propose  to determine the above points.      1.  The Power of Appointment under Section 5 and  Scope of Sections 8 and 10 of the Electricity (Supply) Act, 1948.      The   Electricity  (Supply)  Act,   1948   (hereinafter referred to as the Act is to provide for rationalisation  of the  production and supply of electricity and generally  for taking measures conducive to electrical department.  Chapter III of the said Act deals with the State Electricity Boards, Generating   Companies,   State   Electricity   Consultative Councils  and Local Advisory Committees.  Section 5 read  as under :-

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        "5  Constitution  and  Composition  of  the   State          Electricity          Boards-(1)  The State Government shall, as soon  as          may  be after the issue of notification under  sub-          section   (4)   of   Section   1,   constitute   by          notification  in  the  Official  Gazette  a   State          Electricity  Board  under  such name  as  shall  be          specified in the notification.          (2) The Board shall consist of not less than  three          and not more                                                     952          than   seven   members  appointed  by   the   State          Government.          (3) ... Omitted by Act 57 of 1949, S.4.          (4)   Of the members -              (a) One shall be a person who has experience of              and  has shown capacity in, commercial  matters              and administration;              (b)  one shall be an electrical  engineer  with              wide experience; and              (c) one shall be a person who has experience of              accounting  and financial matters in  a  public              utility undertaking, preferably and electricity              supply undertaking.          (5)  One  of  the members  possessing  any  of  the          qualifications  specified in sub-section (4)  shall          be  appointed  by the State Government  to  be  the          Chairman of the Board.          (6)  A  person  shall be  disqualified  from  being          appointed or being am member of the Board if he  is          a   member   of  (Parliament)  or  of   any   State          Legislature or any local authority.          (7)   No act done by the Board shall be  called  in          question on the ground only of the existence of any          vacancy  in, or any defect in the constitution  of,          the Board."      Thus,  it  will  be seen that State  Government  is  to constitute,  by notification, the State  Electricity  Board. The minimum member of the Board shall be 3 while the maximum shall  be 7.  The Chairman could be any one of  the  members who  possesses such qualifications as prescribed under  Sub- section(4).  Sub-section(6) talks of disqualification -  (1) member  being  appointed and (2) or being a  member  of  the Board  if  he  is a member of Parliament  or  of  any  State Legislature or any local authority.      Prior  to the amendment in 1960, this  disqualification must have been incurred within the 12 months last preceding. What   is   important  for  our  purpose  is  there   is   a disqualification  for  appointment in future  when  it  says "shall be disqualified from being appointed".  Equally,  "or being" means if                                                   953 such  a disqualification is incurred after  the  appointment during the tenure of membership of the post.  Therefore, the words "or being" have great significance.      We will come to the effect of amendment of Section 5(6) later after dealing with the relevant sections of this  Act. Section 8 reads as follow :-          "Term  of office and conditions for  re-appointment          of  members of the Board - The Chairman  and  other          members  of  the Board shall hold office  for  such          period,  and  shall be eligible  for  reappointment          under such conditions, as may be prescribed."      A Careful reading of the Section will clearly  disclose the  section merely talks of term of office  and  conditions

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for  reappointment.  Those conditions may be  a  prescribed. The  word ‘prescribed’ has come to be defined under  Section 2(9) of the said Act.  "Prescribed" means prescribed made by rules  under  this  Act.  Nowhere in this  Section,  in  our considered  view,  an additional power  for  appointment  is conferred.   At  best it could be said that it  merely  lays down  the eligibility for reappointment.  As  stated  above, that eligibility must be as per conditions prescribed  under the  rules.  As a matter of fact, when it says  "shall  hold the  office  for  such  period"  it  means  the  period   as prescribed under the rules.  Beyond this, we are  unable  to persuade  ourselves to come to the conclusion that there  is any  separate  power  for reappointment.   It  is  not  even necessary to provide for such a separate power.  The  reason why  we  say  so is Sections 14 and 16  of  Central  General Clauses Act provide for such a power.  Section 16 deals with the  power  of  appointment carrying with it  the  power  of dismissal,  while  Section  14 states  any  power  conferred unless a different intention appears could be exercised from time  to  time  as  occasion  requires.   Where,  therefore, Section  5 provides for a power to appoint, certainly,  that power  could  be  exercised from time to  time  as  occasion requires.   Thus  one  need  not  search.  for  a   separate provision  in  this  regard.   We may  also  note  that  the prescriptions  in relation to the term was  contained  under Electricity (Supply)  HP Amendment) Act, 1990.  Under rule 4 of the said Rule, it is stated thus :-          "4.   Term  of Office - (1) The Chairman  and other          Members shall be appointed by the State  Government          and  hold office for such period and shall, on  the          expiration of their terms office,                                                   954          be eligible for reappointment under such conditions          as  the State Government may from time to  time  by          order direct.  (2) No whole-time Member so long  as          he continues as Member shall accept any  assignment          other  than   that of the Board without  the  prior          permission of the Government.      Even  there no further prescription is found  excepting as  laid down under the conditions stipulated by  the  State Government from time to time.      Then  we come to Section 10.  That Section  deals  with removal or suspension of members as follows :-          "Removal  or suspension of members.  (1) The  State          Government may suspend from office for such  period          as  it thinks fit or remove from office any  member          of the Board who-          (a)  is found to be a lunatic or becomes of unsound          mind; or          (b) is adjudged insolvent; or          (c) fails to comply with the provisions of  Section          9; or          (d)   become  or  seeks  to  become  a  member   of          Parliament  or any State Legislature or  any  local          authority; or          (e)  in the opinion of the State Government-          (i) has refused to act; or          (ii)  has become incapable of acting ; or          (iii)  has so abused his position as to render  his          continuance   on  the  Board  detrimental  to   the          interests of the general public’ or          (iv)   is otherwise unfit to continue as a  member;          or          (f)  is convicted of an offence turpitude.          (2)   The State Government may suspend  any  member

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        pending an inquiry against him.                                                        955          (3)  No order of removed shall be made  under  this          section unless the member concerned has been  given          an  opportunity  to submit his explanation  to  the          State  Government, and when such order  is  passed,          the seat of the member removed shall become  vacant          and another member may be appointed under Section 5          to fill up the vacancy.          (4)  A  member who has been removed  shall  not  be          eligible  for  reappointment as member  or  in  any          other capacity to the Board.          (5) If the Board fails to carry out its  functions,          or refuses or fails to follow the directions issued          by  the  State  Government under  this  Act,  State          Government may remove the Chairman and the  members          of the Board and appoint a Chairman and members  in          their places."     In  our view this Section confers an enabling  power  on the  State  Government  to take punitive  action  against  a member  of the Board who falls under any one of the  clauses (a)  to (f). The fact that it is punitive is  clear  because Sub-section (3) contemplates giving an opportunity to  offer an explanation and thereafter removing him. Once so removed, he is ineligible for reappointment either as a Member or any other capacity in the Board.     As to why after amending Section 5(6) the State has  not correspondingly amended Section 10 so as to include cases of Members or Chairman attaining the age of 65 we will consider while dealing with the scope of amendment to Section 5(6).     The next Section that has to be looked at is Section 78, i.e. the rule making section. Sub-section (1) of Section  78 as is usual talks of the State Government making rule giving effect  to  the  Act. Sub-section  (2),  catalogues  without prejudice  to the generality of this power, as to  what  all the rules may provide for. Certainly, it cannot be contended that the items catalogued in Sub-section (2) are exhaustive. It  is merely illustrative. Under Sub-section (2) (a) it  is stated that the rules may provide for (i) the powers of  the Chairman  and the term of office of the Chairman  and  other members  of the Board, (ii) the conditions under which  they shall   be  eligible  for  reappointment  and  (iii)   their remuneration, allowances  and (iv) other                                                        956 conditions of service."     One  thing  that  is striking is  rules  may  themselves provide   for   eligibility  for  reappointment.   In   this connection  it  may not be out of context to  refer  to  the letter  of the Ministry of Home Affairs asking the State  to explore the possibility of making rules instead of  amending the Act. This was at a time when the State Government sought the  assent of the President. Where, therefore, rules  could provide    for   the   conditions   for   eligibility    for reappointment, equally it should follow by amending the  Act such  eligibility for reappointment can be provided. In  the conspectus  of  this Section it would be thus  clear  -  (1) there  is only one source of power of appointment  contained under Section 5; (2) there is no seperate power in  relation to reappointment under Section 8; (3) Section 10 is only  an enabling  power for taking punitive action against  such  of those members who fall under clauses (a) to (f) of the  said Section  and (4) Section 78(2)(a) confers a power  upon  the State Government to frame rules.     The  effect of Amendment under Section 5(6) of the  said Act

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   With this we pass on to the amending section of 5(6), by Act  10  of 1990. The amendment was carried out  to  section 5(6) is as follows. This can be brought out succinctly by  a tabulated statement :-       STATEMENT OF PROVISIONS LIKELY TO BE AFFECTED BY                      THE AMENDMENT BILL ------------------------------------------------------------     Section       Provisions as exist    Provisions as  will                                          stand   after   the                                          enactment  of   the                                                  Bill      (1)                   (2)                    (3) ------------------------------------------------------------ 5. Constitution and Compositi-    5. Constitution and Compos- on of State Electricity Board-    ition of State Electricity                                   Board- (1) The State Govt. shall, as     (1) The State Govt.shall,    soon  as may be after  the     as soon as may be after the    issue of the notification      issue of the notification    under  sub-section (4) of      under sub-section (4)  of    sec. 1, constitute by noti-    sec.  1,  constitute  by    fication in the Official       notification in the Offic-    Gazette a State Electricit-    ial Gazette a State Elect-    y Board under sub name as      ricity Board under sub na-    shall  be specified in the     me as shall be  specified    notification.                  in the notification.                                                        957   (2) The Board shall consist     (2)  The  Board  shall co-   of not less than three and      nsist of not less than th-   not more than seven members     ree and not more than sev-   appointed by the State Govt.    en members appointed by t-                                   he State Govt.  (3) X X X                        (3) X X X  (4) Of the members-              (4) Of the members-  (a) one shall be person who      (a) one shall be person w-  has experience of, and has       ho has experience of, and  shown  capacity in commercial    has  shown  capacity  in  mat-ters and administration,     commercial mat-ters and ad-                                   ministration,  (b) one shall be an Electric-   (b) one shall be an Electri-  al Engr. with wide experience,   cal Engr. with wide experi-  and                              ence, and  (c) one shall be a person who    (c) one shall be a person  has experience of accounting     who has experience of acco-  and financial matters in a p-    unting and financial matte-  ublic utility undertaking,       rs in a public utility und-  preferably an electric supply    ertaking, preferably an el-  undertaking.                     ectric supply undertaking.  (5) One of the members posses-   (5) One of the member Pos-  sing of the qualifications sp-   sessing of the qualificat-  ecified in sub-sec. (4)shall     ions specified in sub-sec.  be appointed by the State Govt.  (4) shall be appointed by  to be the Chair-man of the Boa-  the State Govt. to be the  rd.                              Chairman of the Board.  (6) A person shall be disquali-  (6) A person shall be dis-  fied from being appointed or     qualified from being appo-  being a member of the Board if   inted or being a member of  he is a member of Parliament or  the Board he has attained  any State Legislature or any l-  the age of 65 years or is  ocal  authority.                 a member of Parliament of                                   any  State Legislature  or                                   any local authority. ------------------------------------------------------------     The  effect  of  amendment  Section  5(6)  is  that   it introduces  a new disqualification "if he has  attained  the

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age  of  65 years". This disqualification is  not  only  for being   appointed,   namely,  with   reference   to   future appointment,   but  even  with  regard  to   a   supervening disqualification cover-                                                        958 ing cases of those who have attained the age of 65 years and being  a member of the Board. As already stated,  the  words "or  being"  are of considerable import. As to what  is  the meaning  of  these words can be gathered by two  rulings  of this  Court  which came to deal with  the  similar  language employed.   (Article   102  in  relation   to   Members   of Parliament). In  Election  Commission, India v. Saka Venkata  Subba  Rao, [1953] SCR 1144 @ 1157 it was observed as under :-          "The  use of the word "become" in  articles  190(3)          and 192(1) is not inapt, in the context, to include          within  its  Scope  pre-existing  disqualifications          also, as becoming subject to a disqualification  is          predicated of "a member of a House or Legislature",          and a person who, being already disqualified,  gets          elected,   cannot  inappropriately,  be   said   to          "become"  subject  to  the  disqualification  as  a          member  as soon as he is elected. The  argument  is          more ingenious than sound. Article 191, which  lays          down the same set of disqualifications for election          as well as for continuing as a member, and  Article          193  which prescribes the penalty for  sitting  and          voting when disqualified, are naturally phrased  in          terms  wide enough to cover both  pre-existing  and          supervening  disqualifications;  but  it  does  not          necessarily follow that articles 190(3) and  192(1)          must  also  be taken to cover both.  Their  meaning          must  depend on the language used which, we  think,          is reasonably plain".     In  Pashupati  Nath Sukul etc. v. Nem Chandra  Jain  and Others,  [1984] 2 S.C.C. 404 @ 417, in para 18 it is  stated as under :-          "Article  191  of the Constitution  prescribes  the          disqualifications    for    membership    of    the          Legislative  Assembly or Legislative Council  of  a          State,    on    the   incurring   of    any    such          disqualification a member of a Legislative Assembly          or  a  Legislative Council ceases to  be  a  member          thereof." lm     Therefore,    it    will   follow   that    once    this disqualification  of  attaining  the  age  of  65  years  is incurred,  there  is  an automatic  cessation  from  holding office.  This  is  because Section 5(6)  contains  the  same phrascology  as is found under Article 102 and 191.  In  our considered view Section 5(6) applies to initial  appointment as well as to those continuing in appointment. We will  also usefully refer to American Jurisprudence (Vol. 63), at  para 42, it is stated thus:-                                                        959          "Disqualification arising after election and before          or  during term. - Eligibility to public office  is          of  a  continuing  nature and  must  exist  at  the          commencement  of the term and during the  occupancy          of the office. The fact that the candidate may have          been  qualified at the time of his election is  not          sufficient  to entitle him to hold the  office,  if          at  the  time of the commencement of  the  term  or          during the continuance of the incumbency he  ceases          to be qualified".

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   It is rather unfortunate that the High Court has  missed the  true import of the words "or being". Therefore, we  are unable  to subscribe to the findings of the High Court  when it states "the provision lays down the age of superannuation for a member prospectively which disqualifies a person  from being  appointed or being a member after he attains the  age of 65 years" by itself it does not affect those who had been given appointment after having attained the age of 65 years. The Legislature was conscious of it, but thought of enacting a provision like Section 3 on that account.     We  are  unable  to see any  warrant  for  holding  that Section 5(6) as amended having regard to the use of language "or  being" would any way exclude such of those  members  or even  the Chairman who have attained the age of 65 years  of age at the time of appointment. According, we conclude  that Section  5(6)  itself would be enough to hold  that  on  the coming  into force of the amending Act, namely, 13.7.90  the first respondent ceases to hold the office by the rigour  of law,  as  rightly contended by Mr. Shanti  Bhushan,  learned counsel for the appellant.     Now   we  shall  proceed  to  consider  as  to   why   a corresponding   amendment   has   not   been   provided   by incorporating  this  disqualification. The argument  of  Mr. Kapil  Sibal is that the attaining of 65 years is not to  be considered as disqualification as otherwise Section 10 would provide for such a situation. It has already been seen  that Section 10 merely confers an enabling power to take punitive action. It is one thing the State has power to take  puritiv action,  it is entirely different thing to say that  in  law the first respondent ceases to hold office on the  incurring of the disqualification of attainment of 65 years of age. If Section 5(6) itself brings about a cessation of office, that Sub-section being self-executory in nature,                                                        960 there  is no need to provide for the same under  Section  10 once  over  again. Merely because the  parent  Act  (Central Legislation)  provides for a disqualification on account  of becoming a Member of Parliament, State Legislature or  Local Board,  that  does not mean there must  be  a  corresponding provision incorporating age as well under Section 10. We are unable   to  agree  with  Mr.  Kapil  Sibal.  Equally,   the contention  that  Section  5(6)  only  deals  with   initial appointment  and  would not cover a  case  of  reappointment after attaining the age of 65 is wholly unacceptable to  us. First of all, as we have stated earlier there is no question of any seperate power for reappointment under Section 8  and the  only  power  being traceable to  Section  5  read  with Sections 14 and 16 of the General Clauses Act.     Factually we will now consider whether this is a case of reappointment  at all. The original order to appointment  of the first respondent was on 24.7.1981, first as a Member and as  Chairman  for a period of 2 years. These two  orders  of appointment do not concern very much.     The next comes the appointment dated 13.8.1982, when the first  respondent  came  to  be  appointed  as  Chairman  of Himachal Pradesh State Electricity Board. Though during  the narration  of  facts we have referred to this order,  it  is worthwhile to quote it once over again in full as  something material turns on this.               "GOVERNMENT OF HIMACHAL PRADESH                  DEPARTMENT OF PERSONNEL-II     No. 8- 155/73 - DP (Apptt. II) Dated Shimla -2, the 13th Aug, 1982.                         NOTIFICATION          In exercise of the powers conferred by section 5 of

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        the  Electricity (Supply) Act, 1948, the  Governor,          Himachal  Pradeshm,  is  pleased  to  appoint  Shri          Kailash   Chand, Retd. Chief Engineer  (Irrigation)          Punjab,  whose  appointment as Member,  H.P.  State          Electricity   Board,   has   been   notified   vide          Notification  of even number, dated the 24th  July,          1981, as Chairman, H.P. State Electricity Board for          a period of five years, with effect from 25th July,          1981.   Detailed  terms  and  conditions   of   his          appointment has already been issued separately.                                                        961          This is in supersession of this Deptt. Notification          of even number, dated the 24th July, 1981.                                                     By Order                                                 K.C. Pandeya                                           Chief Secy. to the                                  Govt. of Himachal Pradesh".     As  seen from the above, the number of the order  is  8- 155/73-DP (Apptt-II). The next order of extension bears  the same  number  dated 12.5.86. That also  clearly  states  "in continuation  of  this  Department’s  notification  of  even number  dated 13.8.82, the Governor of Himachal  Pradesh  is pleased  to extend the appointment" This extension is for  a period  of  three years. Then comes the  last  extension  on 12.6.89  which also bears the number 8/155/73 -  DP  (Apptt- II). Again, the notification reads "in continuation of  this Department’s  notification of even number  dated  12.5.1986, the  Governor of Himachal Pradesh is pleased to  extend  the appointment".  Therefore,  where  the  original  appointment dated  12.5.86 is extend from time to time, it is futile  to contend  that these are fresh appointments. While we are  on this  we have also get to refer to the counter affidavit  of the State filed in the writ petition before the High  Court. In para 12 it is stated as follows :-          "The  contents  of  para 12  of  the  petition,  as          stated,   are  wrong  and  hence  denied.   It   is          emphatically  denied that the power  was  exercised          malafide  and was colourable exercise of  power  or          was a fraud on power. The power has been  exercised          within  the  legal  ambit of Section  5  read  with          Section   8  of  the  Act  and  the  rules   framed          thereunder."     From  this  we are unable to see how any help  could  be derived  by the first respondent to base his arguments  that the  power of reappointment is traceable to Section 8.  This aspect of the matter had already been dealt with by us.     The statement of ‘Objects and Reasons’ makes a reference to  Section  8.  But  it does not again  mean  there  is  an independent power of appointment. What the above extract  of counter affidavit and reference to Section 8 mean is  denial of malafide. Besides, hitherto no outer age limit has been                                                        962 prescribed  for the post of Chairmanship. It is  that  which is  sought to be prescribed now. The reference to Section  8 means only the "term" and nothing else.     We  are also unable to accept the arguments advanced  on behalf  of  the first respondent that for a tenure  post  no period  can  be  fixed. Instances are not  wanting  in  this regard.  Therefore, rightly reference is made by Mr.  Shanti Bhushan to Article 224 of the Constitution extract of  which is given below:-          "224. Appointment of additional and acting Judges -          (1)  If by reason of any temporary increase in  the          business of a High Court or by reason of arrears of          work therein, it appears to the President that  the

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        number  of the Judges of that court should  be  for          the   time  being  increased,  the  President   may          appoint  duly  qualified persons to  be  additional          Judges  of the Court for such period not  exceeding          two years as he may specify.          (2)  When any Judge of a High Court other than  the          Chief  Justice is by reason of absence or  for  any          other  reason unable to perform the duties  of  his          office or is appointed to act temporarily as  Chief          Justice, the President may appoint a duly qualified          person  to act as a Judge of that Court  until  the          permanent Judge has resumed his duties.            (3)  No  person  appointed as  an  additional  or          acting  Judge  of a High Court  shall  hold  office          after attaining the age of (Sixty- two years)".          Again, a reference can be made to Section 8 of  the          Administrative Tribunals Act. That Section reads as          follows :-              "Term  of Office - The Chairman, Vice  Chairman          or  other  Member shall hold office as such  for  a          term of five years from the date on which he enters          upon   his  office,  but  shall  be  eligible   for          reappointment for another term of five years :              Provided  that  no Chairman,  Vice-Chairman  or          other  Members shall hold office as such  after  he          has attained -             (a)  in  the  case  of  the  Chairman  or  Vice-          Chairman, the age                                                        963          of sixty five years, and          (b)  in  the case of any other Member, the  age  of          sixty-two years".     Therefore,  where the State has taken a policy  decision to  prescribe  an  outer age limit for the  Members  or  the Chairman of the Electricity Board it is perfectly legal.     The  scope of Section 3 of Electricity  (Supply),  (H.P. Amendment)  Act,  1990  and  whether it  is  bad  as  single person’s legislation.     Section 3 of the Amendment Act reads as follows :-          "3.  (1) Notwithstanding anything to  the  contrary          contained  in  any provisions  of  the  Electricity          (Supply) Act, 1948, rules, regulations or  bye-laws          made thereunder or in any judgement decree or order          of  the court or in any contract,  any  appointment          made  before  the commencement of  the  Electricity          (Supply)  (Himachal Pradesh Amendment)  Act,  1990,          whereby  a  person  has a right to  continue  as  a          member  of the Board after attaining the age of  65          years,  shall be void; and on such commencement  he          shall  be deemed to have ceased to hold  office  of          the member of the Board.          (2) On ceasing to hold office of the member of  the          Board  under sub-section (1) such member  shall  be          entitled  to compensation as may be  determined  by          the  State Government; but such compensation  shall          not  exceed the amount equivalent to the amount  of          salary  and  allowances  payable  to  him  for  his          unexpired term".     One  thing  that is significant is it contains  a  ‘non- obstante’  clause. An appointment of a Member of  the  Board made  prior to the commencement to this Act namely,  13.7.90 (giving  retrospective  operation)  when gives  a  right  to continue  as a member after attaining the age of  65  years, that appointment is rendered void.     This  non-obstante  clause is a sweep.  It  applies  (1)

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notwithstanding  anything to the contrary in any  provisions of the Electricity (Supply) Act; (2) rules and  regulations, bye-laws made therein; (3) any judgment, decree or order  of the court; and (4) any contract.                                                        964     Once  it is so rendered void, the law deems that he  has ceased  to  hold  office of the Member of the  Board.  By  a reading of the Section we are unable to conclude how Section 3(1) would fail to apply to a person who on the date of  the commencement  was already more than 65 years. This  line  of reasoning  adopted by the High Court does not appeal to  us. The Section nowhere makes a distinction between those on the date of the enactment are "below" or "over" 65 years of age. Such  a  distinction  is totally  unwarranted.  The  crucial question to be asked is whether the particular incumbent  is continuing after the attainment of 65 years of age, if  that question is answered in the affirmative there is a cessation of  office,  in  view  of the terms  of  that  Section.  The contrary conclusion would lead to strange results. Those who are  appointed prior to the Act and on the attainment of  65 years  on  13.7.90, would vacate the office while  a  person already  65  on that date and after the passing of  the  Act notwithstanding  the  policy  of  prescribing  the  age   of superannuation of 65 years would continue in the office. The object of introducing an age of superannuation itself is  to weed  out the older elements and infuse fresh blood so  that the administration could function with vigour.     Mr.   Kapil  Sibal,  learned  counsel  for   the   first respondent  would submit that legislative intention has  not been brought out clearly. In this connection we will do well to refer to Francis Bennion’s Statutory Interpretation (1984 edn.)  at page 237. The distinction between the  legislative intention and the purpose object of the legislation has been succinctly summarised as under:-          "The  distinction between the purpose or object  of          an   enactment   and  the   legislative   intention          governing  it  is that the former  relates  to  the          mischief to which the enactment is directed and its          remedy,  while  the  latter relates  to  the  legal          meaning of the enactment".     Thus there is a great distinction between the two. While the  object  of legislation is to provide a remedy  for  the malady.  On the contrary, the legislative intention  relates to the meaning from the exposition of the remedy as enacted. For  determining  the  purpose  of  object  of  legislation, indeed,  it  is permissible to look into  the  circumstances which  were prevalent at that time when the law was  enacted and  which necessitated the passing of that  enactment.  For the limited purpose of appreciating                                                        965 the background and the antecedents factual matrix leading to the  legislation  it is open to the court to look  into  the statement  of  ‘Objects  and  Reasons’  of  the  Bill  which accentuated  to  provide  a remedy  for  the  then  existing malady.  In  the case of State of West Bengal  v.  Union  of India, [1964] 1 SCR 371, this court ruled that the statement of ‘Objects and Reasons’ accompanied a Bill when  introduced in  Parliament  can  be  used for  the  limited  purpose  of understanding,  the background and state of affairs  leading up  to  the  legislation. Therefore, we now  look  into  the statement of ‘Objects and Reasons’. That clearly brings  out the  object  of the desirability of introducing  an  age  of superannuation   as   the   same  is   entrenched   in   our administrative and constitutional systems. With this  object in  view,  Section  3 intends that no one  has  a  right  to

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continue as a member of the Board after attaining the age of 65.  Thus,  the only conclusion possible is,  by  reason  of appointment  if  the incumbent is enable to  continue  after attaining  the age of 65 years such continuing  is  rendered void.     No  doubt  as  we have stated  above,  Section  5(6)  as amended  achieves  this  purpose. Yet if  there  is  another Section which deals with the same it must be regarded as one introduced  by  way of abundant caution. In  short,  Section 3(1) is epexegesis.     The  arguments advanced by Mr. Kapil Sibal remind us  of the  eloquent  words  of  Dr. Johnson  "There  is  a  wicked inclination in most people to supppose an old man decayed in his itellects. If a young or middle-aged man, when leaving a company,  does  not recollect where he laid his hat,  it  is nothing; but if the same inattention is discovered in an old man,  people  will shrug up their shoulders, and  say,  ‘His memory is going’."     It our opinion such sentiments can be no answer  against the operation of law.     In might be argued by the tenure of appointment there is a right to continue; the legitimate expectation has come  to be interfered with. In a matter of this kind, as to  whether legitimate  expectation  could be pleaded is a  moot  point. However, we will now refer to Wade’s Administrative Law (6th Edition) wherein it is stated at page 520-21, as under :-          "Legitimate expectation : positive effect                                                        966          The  classic situation in which the  principles  of          natural justice is where some legal right,  liberty          or  interest  is  affected, for  instance  where  a          building  is  demolished  or  an  office-holder  is          dismissed  or  a trader’s license is  revoked.  But          good  administration  demands their  observance  in          other  situations  also,  where  the  citizen   may          legitimately  expect to be treated fairly. As  Lord          Bridge has explained :          Re  Westminister  CC  (1986) AC 668  at  692.  Lord          Diplock  made a formal statement in the Council  of          Civil  Service Unions case (below) at 4408,  saying          that  the  decision must affect some  other  person          either  - (a) by altering rights or obligations  of          that person which are enforceable by or against him          in  private  law; or (b) by depriving him  of  some          benefit or advantage which either (i) he had in the          past been permitted by the decision-maker to  enjoy          and   which  he  can  legitimately  expect  to   be          permitted  to continue to do until there  has  been          communicated  to  him  some  rational  grounds  for          withdrawing  it  on  which he  has  been  given  an          opportunity  to  comment; or (ii) he  has  received          assurance  from  the  decision-maker  will  not  be          withdrawn  without giving him first an  opportunity          of  advancing  reasons  for  contending  that  they          should not be withdrawn.          This  analysis  is  ‘classical  but  certainly  not          exhaustive   :  R.  Secretary  of  State  for   the          Environment ex. P. Nottinghamshire CC (1986) AC 240          at 249 (Lord Scarman). One case which does not seem          to be covered is that of a first-time applicant for          a   licence  (below.  p.  559).  The  courts   have          developed a relatively novel doctrine in public law          that  a  duty  of consultation  may  arise  from  a          legitimate  expectation  of  consultation   aroused          either  by a promise or by an established  practice

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        of consultation".     In a recent case, in dealing with legitimate expectation in  R.  v. Ministry of Agriculture Fisheries  and  Food,  ex parte Jaderow Ltd and Others, [1991] All England Law Reports 41. It has been observed at page 68 :-          "Question II : Legitimate Expectation: It should be          pointed  out in this regard that, under the  powers          reserved  to  the  member states by  Art.  5(2)  of          Regulation 170/83, fishing activities could                                                        967          be made subject to the grant to licences which,  by          their nature, are subject to temporal limits and to          various  conditions. Furthermore, the  introduction          of  the  quota system was only  one  event  amongst          others  in the evolution of the  fishing  industry,          which   is   characterised   by   instability   and          continuous changes in the situation due to a series          of  events  such  as the extensions,  in  1976,  of          fishing  areas to 200 miles from certain coasts  of          the community, the necessity to adopt measures  for          the  conservation of fishing resources,  which  was          dealt with at the international by the introduction          of total allowable catches, the arguments about the          distribution  amongst  the members  states  of  the          total   allowable   catches   available    to   the          Community,  which were finally distributed  on  the          basis of a reference period which ran from 1973  to          1978 but which is reconsidered every year.            In those circumstances, operators in the  fishing          industry were not justified in taking the view that          the  Community  rule precluded the  making  of  any          changes  to  the conditions laid down  by  national          legislation  or practice for the grant of  licences          to fish against national quotas or the adoption  of          new conditions compatible with community Law.            Consequently, the answer to this question must be          that  Community  Law  as it  now  stands  does  not          preclude   legislation  or a practice of  a  member          state  whereby  a  new  condition  not   previously          stipulated  is laid down for the grant of  licences          to fish against national quotas."     Thus,  it  will  be clear  even  legitimate  expectation cannot preclude legislation.     Where  the right to continue in office has been  put  an end  to by statute, even then it may be complained that  the other  rights  like salary and perks would  continue  to  be reserved   and  they  could  be  claimed.  To   avoid   that contention,   Section   3(2)   provides   for   compensation equivalent  to the amount of salary and allowances  for  the unexpired term of office.     Even  assuming that the reasoning of the High  Court  is correct, in that, by the term of appointment he should  have a right to continue after                                                        968 attaining  the age of 65, when we look at  the  notification dated  12.6.89, that lives the first respondent a  right  to continue beyond the age of 65.     Then  the  question  will  be whether  it  is  a  single person’s legislation. The argument and the counter arguments proceed  thus.  Mr.  Shanti  Bhushan  would   urge  that  it happened at the time of enactment only the first  respondent had  attained the age of 65 years and, therefore,  it  could not  be called a single man’s legislation since  it  affects everyone.  On the contrary, the argument of Kapil  Sibal  is that only the first respondent alone could be affected  and,

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therefore,  it  is  a  single  person’s  legislation   being violative of Article 14 of the constitution. We will look at the  relevant  case  law which deals  with  single  person’s legislation and how far they are violative of Article 14. In Chiranjit  Lal Chowdhury v. The Union of India  and  Others, [1950] 1 S.C.R. 869, the head note reads :          "Held also per KANIA C.J., FAZAL ALI, and MUKHERJEA          JJ.-  (PATANJALI SASTRI AND DAS,JJ.  dissenting)  -          that  though the Legislature had proceeded  against          one  company only and its shareholders inasmuch  as          even  one corporation or a group of persons can  be          taken  to be a class by itself for the  purpose  of          legislation, provided there is sufficient basis  or          reason for it and there is a strong presumption  in          favour  of the constitutionality of  an  enactment,          the  burden  was on the petitioner  to  prove  that          there were also other companies similarly  situated          and  this  company  alone  had  been  discriminated          against,  and  as he had failed to  discharge  this          burden  the  impugned Act cannot be  held  to  have          denied  to  the  petitioner  the  right  to   equal          protection  of the laws referred to in Art. 14  and          the  petitioner was not therefore entitled  to  any          relief under Art. 32."          In  Shri  Ram Krishna Dalmia v. Shri  Justice  S.R.          Tendolkar  & Others, [1959] S.C.R. 1959    296-299,          it has been held thus :-          "...It  is now well established that while  article          14  forbids class legislation, it does  not  forbid          reasonable  classification  for  the  purposes   of          legislation. In order, however, to pass the test of          permissible  classification two conditions must  be          fulfilled, namely, (i) that the classification must          be  founded on an intelligible  differentia   which          distinguishes persons or things that are                                                        969          grouped together from others left out of the  group          and,  (ii)  that  that  differentia  must  have   a          rational  relation  to  the  object  sought  to  be          achieved   by   the  statute   in   question.   The          classification  may be founded on different  hases,          namely,  geographical, or according to  objects  or          occupations or the like. What is necessary is  that          there  must  be  a  nexus  between  the  basis   of          classification  and  the object of  the  Act  under          consideration.  It is also well established by  the          decisions  of this Court that article  14  condemns          discrimination  not only by a substantive  law  but          also   by  a  law  of  procedure".  The   principle          enunciated above has been consistently adopted  and          applied  in subsequent cases. The decisions of this          Court further establish -          (a) that a law may be constitutional even though it          relates to a single individual, on account of  some          special circumstances or reasons applicable to  him          and   not   applicable  to  others,   that   single          individual may be treated as a class by himself ;          (b) that there is always a presumption in favour of          the  constitutionality  of  an  enactment  and  the          burden  is  upon him who attacks it  to  show  that          there  has  been  a  clear  transgression  of   the          constitutional principles ;          (c)  that it must be presumed that the  legislature          understands  and correctly appreciates the need  of          its  own  people,  that its laws  are  directed  to

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        problems  made manifest by experience and that  its          discriminations are based on adequate grounds ;          (d)  that  the  legislature is  free  to  recognise          degrees of harm and may confine its restrictions to          those  cases  where the need is deemed  to  be  the          clearest ;          (e)  that  in order to sustain the  presumption  of          constitutionality   the   court   may   take   into          consideration matters of common knowledge,  matters          of common report, the history of the times  and may          assume every state of facts which can be  conceived          existing at the time of legislation ; and          (f)  that  while good faith and  knowledge  of  the          existing  conditions on the part of  a  legislature          are to be presumed, if there                                                   970          is   nothing  on  the  face  of  the  law  or   the          surrounding  circumstances brought to he notice  of          the   court   on  which  the   classification   may          reasonably be regarded as based, the presumption of          constitutionality  cannot be carried to the  extent          of   always  holding  that  there  must   be   some          undisclosed  and  unknown  reasons  for  subjecting          certain  individuals or corporations to hostile  or          discriminating legislation.          The  above  principles will have to  be  constantly          borne  in mind by the court when it is called  upon          to adjudge the constitutionality of any  particular          law attacked as discriminatory and violative of the          equal protection of the laws.          A  close persual of the decisions of this Court  in          which the above principles have been enunciated and          applied by this Court will also show that a statute          which  may come up for consideration on a  question          of its validity under Art.  14 of the Constitution,          may be placed in one or other of the following five          classes :-          (i)   A statute may itself indicate the persons  or          things to whom its provisions are intended to apply          and the basis of the classification of such persons          of things may appear on the face of the statute  or          may be gathered from the surrounding  circumstances          known to or brought to the notice of the Court.  In          determining  the  validity or otherwise or  such  a          statute  the  court  has to  examine  whether  such          classification is or can be reasonably regarded  as          based  upon  some differentia  which  distinguishes          such persons or things grouped together from  those          left out of the group and whether such  differentia          has  a reasonable relation to the object sought  to          be  achieved by the statute, no matter whether  the          provisions of the statute are intended to apply  to          a  particular person or thing or only to a  certain          class  or persons or thing.  Where the Court  finds          that  the classification satisfies the  tests,  the          court  will uphold the validity of the law,  as  it          did in Chiranjital Chowdhari v. The Union of India,          The  State  of Bombay v. F.N. Balsara,  Kedar  Nath          Bajoria  v.  The  State of West  Bengal  V.M.  Sved          Mohammad  &  Company  v. The State  of  Andhra  and          Bhushan Choudhary v.  The State of Bihar.                                                        971          (ii)   A statute may direct its provisions  against          one  individual  person  or  thing or  to   several          individual  persons  or things  but  no  reasonable

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        basis  of classification may appear on the face  of          it   or   be   deducible   from   the   surrounding          circumstances, or matters of common knowledge.   In          such  a case the court will strike down the law  as          an  instance of naked discrimination, as it did  in          Ammerunnissa  Begum v. Mahboob Begum and  Ramprasad          Narain Sahi v. The State of Bihar."      From  the  proposition it is clear that there  could  a legislation  relating  to a single person.  Assuming  for  a moment,  that  the  Section  3 applies  only  to  the  first respondent even then, where it is avowed policy of the State to  introduce an age of superannuation of 65 years  of  age, there is nothing wrong with the same.      In Lachhman Das on behalf of firm Ram Ram Bux v.  State of Punjab  and Others [1963] 2 S.C.R. 353 @ 375, it is  held as thus :-          "...Professor Willis says in his Constitutional Law          p.580 "a law applying to one person or one class of          persons  is constitutional if there  is  sufficient          basis or reason for it".  This statement of law was          approved by this Court in Chiranjit Lal Chowdhry v.          Union of India".      Therefore,  on  this principle Patiala State  Bank  was held  to  be a class by itself and it would  be  within  the power of the State to enact a law with respect to it.      In  Tilkyat  Shri Govindlalji Maharaj v. The  State  of Rajasthan and others, [1964] S.C.R. 561 @ 617-18, it is held as thus :-          "That  takes  us to the argument that  the  Act  is          invalid because it  contravenes Act.  14.   In  our          opinion, there is no substance in this argument. We          have referred to the historical background  of  the          present  legislation.  At the time  when  Ordinance          No.  II  of  1959 was issued, it had  come  to  the          knowledge  of  the  Government  of  Rajasthan  that          valuables  such a jewelleries, ornaments, gold  and          silver-ware  and  cash  had  been  removed  by  the          Tilkayat in the month of December 1957, and as  the          successor  of  the  State of Mewar,  the  State  of          Rajasthan had to                                                     972          exercise   its   right  of  supervising   the   due          administration  of  the properties of  the  temple.          There  is  no doubt that the  shrine  at  Nathdwara          holds  a unique position amongst the Hindu  shrines          in  the  State of Rajasthan and no  temple  can  be          regarded  as  comparable  with  it.   Besides,  the          Tilkayat himself has entered into negotiations  for          the  purpose of obtaining a proper scheme  for  the          administration  of  the temple properties  and  for          that purpose, a suit under s.92 of the Code had  in          fact been filed.  A Commission of Enquiry had to be          appointed  to investigate into the removal  of  the          valuables.   If the temple is a public  temple  and          the  legislature  though that it was  essential  to          safe   guard the interests of the temple by  taking          adequate  legislative action in that behalf, it  is          difficult  to  appreciate  how  the  Tilkayat   can          seriously  contend  that in passing  the  Act,  the          legislature  has  been guilty  of  unconstitutional          discrimination.  As has been held by this Court  in          the case of Shri Ram Krishna Dalmia v. Shri Justice          G.R.  Tendolkar, that a law may  be  constitutional          even  though it relates to a single individual  if,          on account of some special circumstances or reasons

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        applicable  to  him and not applicable  to  others,          that single individual may be treated as a class by          himself.   Therefore, the plea raised under  Art.14          fails.      In   Lalit   Narayan  Mishra  Institute   of   Economic Development and Social Change, Patna, etc. v. State of Bihar & other etc., [1988] 3 SCR 311 @ 312 it is held thus :-          "All   the   institutions   which   answered    the          description  given in section 2(a) of the Act  were          to be nationalised.  It was not correct to say that          the   Institute   had   been   singled   out    for          nationalisation."          @ p. 321 it is held thus :-          "The  nationalisation has been resolved to be  made          in phases.  It has been already that under  section          3(1)  of the Act, the Institution mentioned in  the          Schedule   will   be  transferred  to   the   State          Government  and will be actually vested in it  free          from  all  circumstances.   The  Schedule  mentions          only  one Institute and in view of section 3(1)  it          has vested in the State                                                        973     Government.  It is said that the first phase relates  to     the taking over of the Institute and that has been done.     Section 3(2) also provides for amendment of the Schedule     by including any institution.  In other words, the other     institutions  which  answer the description  of  private     educational  institutions  as defined in clause  (a)  of     section 2 of the Act will also be nationalised not at  a     time, but in phases, the first phase having started with     the take over of the institute.  This, in short, is  the     scheme of the Act.      p. 232, it is held as under :-     "The contention made on behalf of the petitioner-Society     is   wholly  misconcieved.   The  Ordinances  were   not     promulgated  and the Act was not passed for the  purpose     of  nationalisation  of  the  Institute  only.    It  is     apparent  from the provisions of the Ordinances and  the     Act that the private educational institutions as defined     there  in  are  to  be taken over  for  the  purpose  as     mentioned in the Preambles to the Ordinances and the Act     in  a phased manner.  All the institutions which  answer     the description as given in Section 2(a) of the Act  are     to  be nationalised.  It is, therefore, not  correct  to     say  that  the Institute has been singled  out  for  the     purpose of nationalisation.     There  can be no doubt that when nationalisation has  to     be done in a phased manner, all the institutions  cannot     be  taken  over  at a time.  The  nationalisation  in  a     phased manner contemplates that by and by the object  of     nationalisation  will  be  taken  over.   Therefore,  in     implementing the nationalisation of private institutions     in a phased manner, the Legislature has started with the     Institute.  Therefore, the question of singling out  the     Institute  or treating it as a class by itself  does  no     arise,  for as the provisions of the Act the  Ordinances     go, all the private educational institutions, as defined     in  section  2(a) of the Act will be nationalised  in  a     phased manner".     @ p.325-26 it is held thus :-     "It  is submitted that this fact demonstrates  that  the     professed object of nationalisation in phases is a  mere     pretence and a                                                   974          colourable  device to single out the Institute  for

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        discriminatory  treatment.  The taking over of  the          Institute  is an act of legislation and not an  act          of  the Government.  The question to be  considered          is  whether  at the time when the  Ordinances  were          promulgated  or  the  Act  was  passed,  the   same          suffered the vice of discrimination or not.   There          can  be  no doubt that on the date  the  Ordinances          were  promulgated and the Act was passed, the  same          could  not  be  challenged on the  ground  of  non-          implementation   of  the  legislative   intent   in          nationalising  similar institutes by  amending  the          Schedule.   If  a legislative enactment  cannot  be          challenged  as  discriminatory on the  date  it  is          passed,   it is difficult to challenge the same  as          violative of Article 14 of the Constitution on  the          ground of inaction of the executive in implementing          the  purpose  of the Act, regard being had  to  the          fact that it was the Legislative which had made the          selection  for the first phase of  nationalisation.          If   no  such  selection  had  been  made  by   the          Legislature  and the entire thing had been left  to          the  discretion  of the Government, it  might  have          been   possible   to  contend   of   discriminatory          treatment.   The respondent’s have, however,  given          an explanation for not including the other  similar          institutions  in the programme of  nationalisation,          to be precise, in the Schedule to the Act".      While we are on this case, we have got to deal with the arguments  of Mr. Kapil Sibal, who bases his  submission  on the extract from the pages 325-326 that the relevant date to determine  arbitrariness is the date of enactment.   On  the date  if the first respondent alone is affected it would  be arbitrary and violative of Article 14, so proceeds argument.      We  are unable to agree with this argument.  No  doubt, in this case Lalit Narayan Mishra Institute alone was  taken over  by  the Legislature.  That was  the  only  institution affected  thereby.   Inspite  of this the  Court  held  this enactment   is  not  violative  of  Article  14,  since  the institution  of like nature would fall within the  ambit  of the   statute,  notwithstanding  the  fact  that  only   one institute  has been specified in the schedule.  The  attempt of  the  learned counsel for the first respondent  that  all these   cases  legislative  intervention  became   necessary because there were some other reasons namely,  mismanagement requiring taking over the banks and temples etc.                                                   975 and therefore, the single person’s legislation was upheld is not  tenable.   We  also hold that in order  to  justify   a legislation  of this character, no  extraordinary  situation need  be  disclosed.   The contention that this  is  not  in furtherance  of  the  legislative  object,  cannot  also  be accepted   because  it  has  already  been  seen  that   the legislative object is to introduce as age of superannuation. Beyond  this nothing more need be established by the  State. The possibility of this legislation applying to one or  more persons  exists  in  principle.   The  fact  that  only  one individual came to be affected cannot render the legislation arbitrary  as  violative  of Article 14.   This  is  because Section  3  is  general in terms and the  incidence  of  its applying  to one individual does not render the  legislation invalid.      The  theory  advanced by the learned  counsel  for  the first  respondent that there must be mismanagement  or  some extraordinary  situation  to warrant a  legislation  of  its character also does not seem to be correct as seen from  The

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Atlas  Cycle  Industries  Ltd., Sonepat  v.  Their  Workmen, [1963] 3 S.C.R. Suppl. 89 @ 103-4, it is held thus :-          "Lastly,  it is contended that the transfer of  the          proceedings pending before the old Tribunal to  the          new  Tribunal under the Notification dated  October          31, 1957, was invalid and inoperative.  Two grounds          were  urged in support of this contention.  One  is          that  Shri A.N. Gujral attained the age  of  sixty-          five on June 4, 1957, and his term of office  would          have  then  expired under s.7C.   Then  the  Punjab          Legislature  enacted Act 8 of 1957 raising the  age          of  retirement  under s.7C(b)  from  sixty-five  to          sixty-seven.  That was with a view to continue Shri          A.N.  Gujral in office.  And this legislation  came          into  force only on June 3, 1957.  This Act, it  is          said offends Art. 14 as its object was to benefit a          particular  individual,  Shri  A.  N.  Gujral,  and          reference  was made to a decision of this Court  in          Ameeroonissa   v.   Mehboob  as   supporting   this          contention.  There is no force in this  contention.          There the legislation related to the estate of  one          Nawab Waliudduoula, and it provided that the claims          of Mehboob Begum and Kadiran Be gum, who claimed as          heirs  stood  dismissed thereby and  could  not  be          called  in question in any court of law.  And  this          Court held that it was repugnant to Art. 14, as  it          singled out individuals and denied them the right                                                        976          which  other citizens have of resort to a court  of          law.  But the impugned Act. 8 of 1957 is of general          application,  the age being raised  to  sixty-seven          with  reference to all persons holding  the  office          under  that section.  The occasion  which  inspired          the enactment of the statute might be the impending          retirement of Shri A.N. Gujral.  But that is not  a          ground  for holding that it is  discriminatory  and          contravenes  Art. 14, when it is, on its terms,  of          general application".      The  attempt to distinguish this case that it  was  one wherein  a  benefit of extension was conferred  and  that  a number  of industrial adjudications were pending  cannot  be accepted.      However,  strong  reliance is placed on D.S.  Reddy  v. Chancellor, Osmania  University & Ors, [1967] 2 S.C.R. 214 @ 223.  The facts of this case require to be noted they can be culled from the headnote as under :-          "As a result of the Osmania University  (Amendment)          Act  II of 1966, s.12(1) of the Osmania  University          Act,   1959,  was  amended  to  provide   for   the          appointment   of   the  Vice  Chancellor   by   the          Chancellor  alone;  in  s.12(2)  a  provision   was          introduced  whereby he could only be  removed  from          office by an order of the Chancellor passed on  the          ground of misbehaviour or incapacity after  enquiry          by  a person who was or had been a Judge of a  High          Court  or  the  Supreme Court and  after  the  Vice          Chancellor had been given an opportunity of  making          his  representation  against such  removal  Section          13(1)  of  the 1959 Act was also amended so  as  to          reduce   the term of office of the Vice  Chancellor          from 5 to 3 years.          The 1959 Act was again amended later in 1966 by the          Osmania  University  (Second Amendment) Act  XI  of          1966.  Section 5 of this amending Act introduced  a          new  s.  13A  into  the 1959  Act  whereby  it  was

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        provided that the person then holding the office of          Vice  chancellor was appointed; and that  such  new          appointment  must  be made within 90  days  of  the          commencement  of  the Act whereupon  the  old  Vice          Chancellor would cease to hold Office.                                                      977          The appellant filed a writ petition claiming, inter          alia,   that  s.5  of  the  second   amending   Act          introducing  the  new s.13A was  discriminatory  as          against him and therefore violative of Art. 14. The          High Court dismissed the petition.          In  the  appeal  to  the  Supreme  Court,  it   was          contended on behalf of the respondents that as  the          term  of office had been reduced to 3 years by  the          first  amending Act, the legislature, in  order  to          give  effect to this provision and to enable  fresh          appointments to be made under the Act, had  enacted          s.13A which had, necessarily, to apply to a  person          like  the appellant who was in office at  the  time          when   the  provisions  came  into   force.    Such          provisions  could  not, in the  nature  of  things,          apply to Vice chancellors who were to be  appointed          in future; the appellant was appointed from a panel          submitted  by  a committee  constituted  under  the          unamended  s.12(2) whereas future Vice  Chancellors          were  to  be  appointed by  the  Chancellor  alone;          furthermore,  the  appellant  had  been  the   Vice          Chancellor  for  7 years.  Having regard  to  these          circumstances  the legislature had chosen to  treat          the  appellant  as  a  class  by  himself  and  had          differentiated  him  from persons to  be  appointed          Vice   Chancellors  in  the  future;    that   such          classification  was reasonable and had  a  rational          relation  to the object sought to be   achieved  by          the   second  amending  Act  i.e.  bringing   about          uniformity  in the tenure of 3 years of office  for          all  Vice Chancellors; that the appellant  was  not          entitled  to  the  benefits  of  s.12(2)  and   the          legislature  was competent to enact s.13A so as  to          give  effect to the amended provisions as early  as          possible".          @ p. 229-230, it is held :-          "We  have  already  stated that the  appellant  was          appointed  under the Act, for a further term  of  5          years,  as Vice Chancellor, on April 30, 1964,  and          he  was continuing in office, as such, at the  time          when  the  two  Amending  Acts  were  passed;  and,          normally, he would be entitled to continue in  that          post  for the full term, which will expire only  at          the  end of April, 1969.  The First  Amendment  Act          provided,  in  s.12  of  the  Act,  that  the  Vice          Chancellor  is to be appointed by  the  Chancellor;          but s.12(2)                                                      978          specifically  provided  that  the  Vice  Chancellor          shall  not be removed from his office except by  an          order  of  the Chancellor passed on the  ground  of          misbehaviour  or incapacity and, after due  inquiry          by  such  person who is, or has been, a Judge  of a          High  Court  or  the  Supreme  Court,  as  may   be          appointed by the Chancellor.  It was also  provided          that the Vice Chancellor was to have an opportunity          of making his representation against such  removal.          Prima facia, the provisions contained in  sub.s.(2)          of  s.12 must also apply to the appellant, who  did

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        continue  in office even after the passing  of  the          First Amendment Act. No doubt the term of office of          the  Vice  Chancellor was fixed at  3  years  under          s.13(1) of the Act.  But no provisions were made in          the  First Amendment Act regarding the  termination          of the tenure of office of the Vice chancellor  who          was then holding that post.          There  can be no controversy that s.13A  introduced          bys.5 of the Second Amendment Act, deals only  with          the appellant.  In fact, the stand taken on  behalf          of  the respondents in the counter affidavit  filed          before  the High Court, was to the effect that  the          Legislature had chosen to treat the Vice Chancellor          holding  office at the time of commencement of  the          Second  Amendment  Act, as a class by  himself  and          with a view to enable the Chancellor to make  fresh          appointments,  s.13A of the Act was enacted.          Therefore,  it is clear that s.13A applies only  to          the  appellant.   Though  no  doubt,  it  has  been          stated,  on behalf of the respondent, that  similar          provisions  were  incorporated, at about  the  same          time,  in  two other Acts, relating  to  two  other          Universities  viz., the Andhra University  and  the          Sri   Venkateswara  University,  and  though   this          circumstance  has also been taken into  account  by          the  learned  Judges  of the  High  Court,  in  our          opinion,  those  provisions  have  no  bearing   in          considering the attack levelled by the appellant on          s.13A of the Act.          This  is  a  clear case where  the  statute  itself          directs  its provisions by enacting s.13A,  against          one  individual, viz. the appellant; and before  it          can  be  sustained  as valid, this  Court  must  be          satisfied                                                      979          that  there is a reasonable basis for grouping  the          appellant  as  a  class by himself  and  that  such          reasonable basis must appear either in the  statute          itself or must be deducible from other  surrounding          circumstances.   According to learned  counsel  for          the appellant, all Vice Chancellors of the  Osmania          University   come  under  one  group  and  can   be          classified only as one unit and there is absolutely          no  justification for grouping the appellant  under          one class and the Vice Chancellors to be  appointed          in  future under a separate class.  In any  event,.          it  is also urged that the said classification  has          no   relation  or  nexus  to  the  object  of   the          enactment.          @  p. 230-231, it is observed as under :-          "We  are inclined to accept the contention  of  Mr.          Setalvad,  that there is no justification  for  the          impugned legislation resulting in a  classification          of  the Vice Chancellors into two categories,  viz.          the appellant as the then existing Vice  Chancellor          and  the  future Vice Chancellors to  be  appointed          under  the  Act.          In our view, the Vice Chancellor, who is  appointed          under  the  Act,  or the Vice  Chancellor  who  was          holding  that post on the date of the  commencement          of the Second Amendment Act, from one single  group          or class.  Even assuming that the classification of          these  two  types of persons as  coming  under  two          different  groups can be made nevertheless,  it  is          essential  that  such  a  classification  must   be

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        founded   on  an  intelligible  differentia   which          distinguishes   the   appellant   from   the   Vice          Chancellor  appointment under the Act.  We are  not          able  to find any such intelligible differentia  on          the  basis  of  which  the  classification  can  be          justified.          "While  a Vice Chancellor  appointed under s.12  of          the Act can be removed from office only by adopting          the  procedure under s.12(2), the services  of  the          appellant,  who  was  also a  Vice  Chancellor  and          similarly  situated, is sought to be terminated  by          enacting  s.13A  of  the Act.  We do  not  see  any          policy   underlying   the   Act   justifying   this          differential  treatment accorded to the  appellant.          The term of office of the Vice Chancellors has been                                                   980          no doubt reduced under the First Amendment Act  and          fixed  for  3 years for all the  Vice  Chancellors.          But,  so  far  as the appellant  is  concerned,  by          virtue of s.13A of the Act, he can continue to hold          that  office  only until a new Vice  Chancellor  is          appointed  by the Chancellor, and that  appointment          is to be made within 90 days.  While all other Vice          Chancellors, appointed under the Act, can  continue          to  be in office for a period of three  years,  the          appellant is literally forced out of his office  on          the   expiry    of  90  days  from  the   date   of          commencement of the Second Amendment Act.  There is          also no provision in the statute providing for  the          termination   of   the   services   of   the   Vice          chancellors,  who are appointed under the  Act,  in          the  manner  provided under s.13A of the  Act.   By          s.13A,  the appellant is even denied  the  benefits          which may be available under the provision to  sub-          s.(1)  of  s.13  of  the  Act,  which  benefit   is          available to all other Vice chancellors."      It  will  be clear from the above extract  on  its  own terms  the  legislation applied only to one  individual  and nobody else, even in principle, to a future Vice Chancellor. There was no basis for making a distinction between the then existing  Vice Chancellor and the future  Vice  Chancellors, who  are to be treated differently.  Further,  the  existing Vice Chancellor was subject to a disability for which  there was no rational basis.      As  a  matter  of fact, this ruling  had  come  up  for discussion  in  Lalit Narayan Mishra Institute  of  Economic Development and Social Change, Patna, etc. v. State of Bihar and Others etc., [1988] 3 S.C.R. 311 @ 322 it is ruled :-          "The  other decision that has been relied  upon  by          the petitioner is B.S. Reddy v. Chancellor, Osmania          University,  [1967]  2 SCR 214.  What happened   in          that  case  was  that  section  5  of  the  Osmania          University (Second Amendment) Act, 1966  introduces          into the Osmania University Act, 1959 a new section          13A  whereby it was provided that the  person  then          holding  the office of the Vice Chancellor  of  the          University could only hold that office until a  new          Vice  Chancellor was appointed, and that  such  new          amendment  must  be  made within  90  days  of  the          commen-                                                      981          cement of the said amendment Act whereupon the  old          Vice Chancellor would cease to hold the office.  It          was   held  by  this  Court  that  there   was   no          justification  for the impugned  legislation,  that

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        is,  the provision of section 13A, resulting  in  a          classification  of  the Vice Chancellors  into  two          categories,  namely, the appellant as the  existing          Vice Chancellor and the future Vice Chancellors  to          be appointed under the Osmania University Act.   It          was held that both these categories constituted one          single group of class, and that even assuming  that          the classification of these two types of persons as          coming  under two different groups could  be  made,          nevertheless,   it  was  essential  that   such   a          classification  must be founded on an  intelligible          differentia  which would distinguish the  appellant          from  the  Vice  Chancellors  appointed  under  the          Osmania University Act.  The Court held that  there          was  no  intelligible differentia on the  basis  of          which the classification could be justified."          The  situation  in  the case in  hand  is  entirely          different.      (Ameerunnissa  Begum  and Others v. Mehboob  Begum  and Others,  [1953] S.C.R. (404) Ameerunnissa’s case is  clearly distinguishable.    The  reason is  the  impugned  enactment excluded an particular set of persons viz., heirs of  Nawab. They  were  even denied access to Court to  ventilate  their grievances.   Secondly, it was a named legislation.   Though for apparent purposes it deals with specifically the  wife’s claims of succession.  Lastly, we will deal with Ram  Prasad Narayan  Sahi and Another v. The State of Bihar and  Others, [1953] S.C.R.  1129 @ 1132-33, it is held as under :-          "The  decision  of the majority of  this  Court  in          Chiranjit Lal v. The Union of India is relied on in          support  of  these  contentions.   In  that   case,          however,  the majority felt justified in  upholding          the  legislation, though it adversely affected  the          rights  and  interest  of  the  shareholders  of  a          particular   joint  stock  company,   because   the          mismanagement    of    the    company’s     affairs          prejudicially   affected  the  production   of   an          essential commodity and caused serious unemployment          amongst  a section of the community.   Mr.  Justice          Das  and I took the view that legislation  directed          against  a particular named person  or  corporation          was                                                        982          obviously    discriminatory    and    could     not          constitutionally   be   justified  even   if   such          legislation resulted in some benefit to the public.          In  a system of Government by political parties,  I          was apprehensive of the danger inherent in  special          enactments which deprive particular named person of          their  liberty or property because the  Legislature          thinks  them guilty of misconduct, and said in  may          dissenting opinion :          "Legislation  based  upon  mismanagement  or  other          misconduct  as the differentia and made  applicable          to a specified individual or corporate body is  not          far   removed  from  the  notorious   parliamentary          procedure formerly employed in Britain of punishing          individual   delinquents   by  passing   bills   of          attainder, and should not, I think receive judicial          encouragements.      It has to be carefully noted that this Act was intended to deny the appellant a right to decision by a court of  law and  that  too  in a private dispute  between  the  parties. Hence, this ruling again has no application to the facts  of the case.  As we observed in the beginning of the  judgment,

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if  the  State  is  well entitled to  introduce  an  age  of superannuation  (we  have  referred  to  [1985]  2  SCR  579 Nagaraja’s case), how could that be called discrimination or unreasonable ? The resultant conclusion is the amending Act, particularly,  Section 3 is not, in any way, arbitrary  and, therefore, not violative of Article 14.      Whether the failure to implead  Chauhan  would be fatal to the Writ Petition?      The  contention of Mr. Shanti Bhushan that the  failure to  implead Chauhan will be fatal to the writ petition  does not  seem  to be correct.  He relies on A.I.R.  1979  Kerala 179.   That  case related to admission  to  medical  college whereby  invalidating the selection vitally  affected  those who  had been selected already.  Equally, the  case  Padmraj Samrendra and others v. State of Bihar and Anr., A.I.R. 1979 Patna  266  has no application.  This was a case  where  the plea was founded in Article 14 and arbitrary selection.  The selectees were vitally affected.  The plea that the decision of the court in the absence of Chouhan would be violative of principle  of natural justice as any adverse decision  would affect him is not correct.                                                   983      On the contrary, we think we should approach the matter from  this  point  of view, viz.,  to  render  an  effective decision  whether the presence of Chauhan is necessary?   We will  in this connection refer to A. Janardhana v. Union  of India  and Others, [1983] 3 S.C.C. 601, @ para 36 it is  held as under:-          "...Approaching the matter from this angle, it  may          be  noticed that relief is sought only against  the          Union of India and the concerned  Ministry and  not          against any individual nor any seniority is claimed          by   any   one  individual  and   against   another          particular   individual  and  therefore,  even   if          technically the direct recruits were not before the          court,  the petition is not likely to fail no  that          ground".      What   was  the first respondent seeking  in  the  writ petition?  He was questioning the validity of the  Ordinance and  the  Act whereby he had been deprived  of  his  further continuance.   What  is the relief could be have  asked  for against Chauhan?  None.  The first point is Chauhan came  to be  appointed  consequent  to the suspension  of  the  first respondent  which  suspension had come to be stayed  by  the High  Court on 12.6.90.  Then, again, as pointed out by  the High Court it was "till further orders".  Therefore, we hold the   failure  to  implead  Chauhan  does  not  affect   the maintainability of the writ petition.      One  postscriptum needs to be added.  It was argued  on the  basis of Pritam Singh v. The State, [1950]  S.C.R.  453 that unless the court comes to the conclusion that the  High Court is palpably wrong, it should not interfere.  No doubt, the  same  principle  is stated in Union of  India  v.  M.P. Singh,  [1990]  (Suppl.)  S.C.C.  701  that  if  substantial justice  is done the interference under Article 136  is  not warranted.  We  do not think this principle  will  have  any application.      There is no denying the fact that the first  respondent had           "battled with great grief and fears and borne  the           conflict of dream shattering years."      But  the State says that this is a case of "much  of  a muchness"  in  the  words  of Sir  John  Vanbrugh  (in  "The Provoked Husband").                                                   984

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    How  do we balance these claims except to  examine  the matter  in the light of the law and quote Horace:  "  tempus abire tibi est" ("time you were off").      In the light of the above discussion, it  follows  that the  appellant  is  entitled to succeed.  We  hold  that  on 13.7.90  the  first  respondent’s right to  hold  office  as Chairman/Member  of Himachal Pradesh Electricity Board  came to  end.  The impugned judgment of the High Court in  C.W.P. No.  396 of 1990 dated 12th July, 1991 is hereby set  aside. The appeal will stand allowed.      However,  as  repeatedly stated by Mr.  Shanti  Bhushan during the course of the arguments that the State is willing to  provide  compensation for the remaining  period  of  the tenure, we direct the State to pay the first respondent  the salary, allowances and perks for the period commencing  from 13.7.90 upto 25.7.92, had he continued in office but for the impugned  legislation.   If  any payment has  been  made  by interim  orders  of  the  court that  will  go  towards  the deduction of this liability.      In view of the peculiar facts and circumstances of  the case, there will be no order as to costs. V.P.R.                                       Appeal allowed.                                                   985