Holding

The amendment of Section 5(6) and the non‑obstante provision of the Himachal Pradesh Electricity (Supply) Amendment Act, 1990, validly disqualify any board member who has attained the age of 65, automatically terminating Mahajan’s appointment, and the legislation is not unconstitutional single‑person legislation.

Summary

Kailash Chand Mahajan, a retired chief engineer, was appointed Chairman of the Himachal Pradesh State Electricity Board in 1981 and his term was repeatedly extended. After he turned 65, the State introduced an ordinance and later an amendment act inserting an age‑limit provision into Section 5(6) of the Electricity (Supply) Act, 1948, which disqualified any member who had attained 65 years from holding office. Mahajan challenged the validity of the ordinance, the amendment act and the subsequent notifications that removed him. The Supreme Court held that the amendment was a valid exercise of legislative power, that the words “or being” in Section 5(6) applied to existing members and automatically ceased Mahajan’s tenure, that the legislation was not unconstitutional single‑person legislation, and that the failure to implead the successor was not fatal. The Court allowed the State’s appeal, set aside the High Court’s judgment, and ordered compensation for the loss of salary and allowances.

Issues considered

The constitutional competence of Himachal Pradesh to amend a Central Act under List III and Article 213/254.
Whether the amendment of Section 5(6) of the Electricity (Supply) Act, 1948, disqualifies a person already holding office upon attaining the age of 65.
The interpretation of the phrase “or being” in the amended provision.
Whether the amendment constitutes impermissible single‑person legislation violating Article 14.
The applicability of Section 3 of the Himachal Pradesh Amendment Act and its non‑obstante clause.
The necessity of impleading the successor (Mr. R.S.S. Chauhan) as a party to the writ petition.
The validity of the notifications dated 6 March 1990 and 30 March 1990.

Legislation cited

Constitution of Indias. Article 102, s. Article 136, s. Article 14, s. Article 16, s. Article 19, s. Article 191, s. Article 21, s. Article 213, s. Article 254
Electricity (Supply) Act, 1948s. 10, s. 5, s. 5(6), s. 8
General Clauses Acts. 14, s. 16
Himachal Pradesh Electricity (Supply) Amendment Act, 1990 (Act 10 of 1990)s. 3, s. 3(1), s. 3(2)
Himachal Pradesh Electricity (Supply) (Amendment) Ordinance, 1990

Subjects

age of superannuationretirement ageelectricity boardappointment and reappointmentdisqualificationsingle‑person legislationArticle 14 equalityArticle 254 reservationnon‑obstante clauselegislative competencenatural justicecompensation

Judgment

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

FEBRUARY 20, 1992

[R. M. SAHA! AND S. MOHAN, JJ.] B

Constitution of India, 195(}---Artic/e 136-Appeal-Whether Supreme
Court to decide a case 011 ethics-Retiremellt age of Chainna11/Member of
Electric ii) Boa1d-l'olicy-Need for legislation-Whether the Court to i11teifere.

Electricity (Supply) Act, I94&-Section 5 (6) (as ame11ded by the
c
Himacha' Pradesh Act JO of 1990f-''Sha/l be disqualified from bei11g ap-
pointed," "or being'~ea11ing of

E/,ctricity (Supp(v) Act, ~948-Sections 5, 8 a11d sections 14 a11d 16 of
the General Clauses Act-Period of appointment:-1ime tp time extension-- D
Whether amounts to re-appoilltment-Wliether section 5. (6) deals only with
initial appointnient.

E/,,ctricity (Supply) Act, 1948-Section ](}--Whether punitive in na-
ture-Re.1ppointment-Person removed whether eligible.
E
EMctricity (Supply) Act, 194&-Section 5 (6)-{as amended by the
Himachal Pradesh Act JO of I990 )-Effect of amendment-Cessation from
holding office of Chainnan!Member of the Board on attai11ing the age of 65
years whether automatic-Right to continue in office-Legitimate expecta-
tion-Legality of-Superannuation age-lntroduction--Object of
F
Jnrerpretation of Stan<tes-Object of legislation and legislative inten-
tion-Distinction of-'Object and Reasons' of a Bi/l-lmporta11ce of-77ie
Himac/11/ Pradesh Act, 10 of 1991J---Sections 3, 5-0bject of

C.mstin1tion of India, 1951J---Artic/e ]~Amending Act (the Himacha/ G
Pradesh Act JO of 1990) introducing the age of supera11nuatio11 affecting one
person--U11ether enactntent ultra vires.

Constin1tion of l11dia, 195(}---Article 226-Writ petitio11 challengi11g vires
of the Himacha/ Pradesh Act 10 of 199o-No11-impletion of a perso11 who
was appointed in the place of the writ-petitio11er-Effect of H
r n1
918 SUPREME COURT REPORTS (1992] 1 S.C.R.

A 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 live years, w.e.f. 25. 7.1981. bn
12.5.86, the term as Chairman was extended for another period of three
B 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 1
C 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
D 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
E 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 Mem-
ber of the Electricity Board.

F 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 r
.... .
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 instruc-
G lions 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. Acwrdingly the writ petition was disposed of.

By notification dated 11.6.90, the Government withdrew its notifica-
H lions dated 6.3.90 and 30.3.90. Y
STATE v. K.C. MAHAJAN 919

On 11.6.90, a show cause notice was issued to the respondent No.1 A
for having ab..sed his position as Chairman of the Electricity Board and
also ex·offici1t.Secretary, M.P.P. Power, asking him to submit his explana·
tion within zi days as to why action should not be taken under Section 10
of the Eh!ctricity (Snpply) Act, 1949. He was also placed under suspension
with immediate effect. Consequent npon the suspension of the respondent B
No. 1, the notification dated 16th July, 1990 issued placing one Mr. R.S.S.
Chauhalll, 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 C
permiss:lon to promulgate Electricity (Supply H.P. Amendment) Or·
dinance, il990, as n.o 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 tlte age of ~5 years could be appointed and continued as .Chairman D
or Member of H.P.State Electricity Board.

., On 9.7.90, the Govem;,.ent oflndia pointed to the State Government
that it was desirable for it to examine the matter with reference to the
rilevant provisions of the Act and the Constitution of India.
E
On 13.7.90, the Governor issued the H.P.Ordinance Rule of 2/90,
amending Section 5 (6) of the Electricity (Supply) Act.

A notification was issued on 16.7.90, that as the respondent No. 1,
having already attained the age of more than sixty-live years, was ceased
to be consequently Chairman of the Board. F

Aggrieved by the Ordinance dated 13.7.90 and the notification dated
16.7.9p, the respondent No. 1 filed a writ petition (CWP No. 396 of 1990)
to qua ;h the same.

'lbe respondent No. 1 urged before the High Court that there was a G
delibercate attemp·t on the part of the State to get rid of him th•·ough 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
havin:; 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 H
920 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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.
B
The respondent No. 4 (in the writ petition) (the Chief Minister)
denied the allegations of malafides and urged that the Ordinance was
issued since a policy decision was taken. to introJuce age of superannua-
tion fixing the limit at 65.
c
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 chal-
lenge the validity of the amending Act.

D
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
E malafides could be attributed to the legislatnre; 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 reputa-
tion in any manner, no injury was taken place so as to c9mplain of
F
violation of Article 21 of the Constitution; that prescription of maxi$lnm
age by the amendingiAct at 65 years could not be said to be arbitrary;"that
as the petitioner was appointed after he attained the age of 65 yeaJ, be
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."
G
Agains,t the decision of the High Court by special leave this appeal
•was filed by the State, contending that though the iqapplicability of the
Ordinance or Act was not raised, the High Court allowed the argument;
that the Ordinance/Act was applicable to the respondent No. l; that the
H reading "of Sections 2 and 3 of the amending Act, both individually and
STATE v. K.C. MAHAJAN 921
•'--(
conjoinly lead lo !he only conclusion that the Act disqualified every person A
from hol11ing office who on the dale of enactment namely, 13th July, 1990
was abme 65 years; that the Act on its own terms made no distinction
whatsoever between those persons who already attained the age of 65 years
on the date of enactment .or those who were less than 65 years; that the
High Court was not right _in" introducing an artificial distinction; that B
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
-> respondl'nt 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
c
hold offi1:e on the date of coming into force of the amending Act; that public
policy .,,quired to prescribe the age of 65 years for retirement of the
member:; of Electricity Board; that the High Court went wrong as though
the appuintment 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 D
because !he appointment of the first respondent as Chairman was on
13.8.82 itod 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 011e appointment which was being continued from time to time; that
the reasoning of the High Court was wrong because it led to uncon- E
stitutio11ality, 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 amend- F
-~ ...
ing 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 lie void; that the legislature introdued
the non-obstante clause to put the matter beyond doubt; that the legisla-
tion was general in its terms and its application and the fact that at the G
relevant time of the amending Act or even the Ordinance, the respondent
• No. 1 alone was affected was no ground to hold that ii was a single person's
legislation; that no ma/afides could be attributed to !he Legislature, an
--.., argum1·nt that the amendment has been passed only with a view to punish H
922 SUPREME COURT REPORTS (1992] 1 S.C.R.

A the first respondent was 'not available to the respondent No. l; 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
B 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
c 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 aqtomatic cessation of office on
D attaining the .age of 65 years; that by merely amending the law, it could not .
be urged that the respondent No. 1 having attained the age of 65 ceased to
be a Member or Chairman of the Electricity Board; that Section 5 (6) (:-"
would not help the appellant; that the respondent No.l having been ap-
pointed 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
E
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
F 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 enact-
r-
ment only the first respondent alone could be affected and, therefore, it
was a single person's legislation being violative of Article 14 of the Con·
stitution; and that where the respondent No. 1 wo'!ld choose to question
G the vires of the Ordinance or the Act, there was no need to implead
Chauhan at all, and the respondent No. I 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. •

H Allowing the appeal filed by the State, this Court, r
STATE~ KC.MAHAJAN 923

HELD : 1.01. This Court cannot decide the case on ethic~. The A
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 B
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 "ith malafide intention. By long established practice, which has
}, received aI•probation through authorities of this Court, it has always
refrained from attributing malafides to the legislature. In fact, such a C
thing is unknown lo law. [950H-951B]

1.03. In this case the State wants to introduce the age of superan-
nuation prescribing an upper age limit of 65 for the Member and Chair-
man of the Electricity Board, as no such limit was found in the Electricity
(Supply) Act, 1948•. Before the introduction of the amendment, the appel- D
lant wrote on 22.6.IJo 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 E
38 of List lII of the Seventh Schedule of the Constitution of India. Where,
therefore, it was proposed to amend Section 5 of the Electricity Supply Act
(Central A.ct), in its application to the State ofHimachal 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 be"n passed by the State Legislature required to be so reserved for the F
consideration of the President of India. [948B-D)

1.0.!. 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 aft er attaining the age of ii5 years. This Court is least concerned G
with the wisdom of the policy. Certainly, no one could quarrel with the
introduction of that measure as of policy. [949D-E)

1.0(). ·Where the State has taken a policy decision to prescribe an
outer ag<: limit for the Members or the Chairman of the Electricit)· Board
it is perfectly legal. [9630) II
924 SUPREME COURT REPORTS [1992] 1 S.C.R.

A K. Nagaraj & Others, etc. 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.

B 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] ·

C 3.01. Section 8 of the Electricity (Supply) Act talks of tef";. 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
D 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
separate power for reappointment. It is not even necessary to provide for f-
such a separate power. Sections 14 and 16 of Central General Clauses Act
provide for such a power. Section 16 deals with the power of appointment
E 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 S 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. [953C-GJ
F
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]

G 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 supe~annuation for a member prospectively which disqualifies a person
from being appointed or being a member after he attains the age of 65
H years," by itself it does not affect those who had been given appointment
STATEv. KC. MAHAJAN 925

after having attained the age of 65 years. The Legislature was conscious A
of it, but thought of enacting a provision like Section 3 on that account.
[959C-DJ
3.04. The contention that Section 5(6) only deals with initial ap·
pointment and would not cover a case of reappointment after attaining the
age of 65 its wholly unacceptable. There is no question of any separate B
power for reappointment under Section 8 and the only power being trace·
able to Section 5 read with Sections 14 and 16 of the General Clauses Act.
[960B-CJ
3.05. The original order of appointment of the first respondent was
on 24.7.19ln, first as a Member and as Chairman for a period of 2 years. C
The next comes the appointment dated 13.8.1982, when the first respondent
came to ht appointed as Chairman of Himachal Pradesh State Electricity
Board. lhe notification reads "in continuation of this Department's
notification of even number dated 12.5.1986, the Governor of Himachal
Pradesh i,; pleased to extend the appointment". Therefore, where the D
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 (0. The fact that it is punitive is clear because sub-sec· E
tion (3) contemplates giving an opportunity to offer an explanation and
thereafter removing him. Once so removed, he is ineligible for reapp.oint-
ment either as a Member or any other capacity in the Board. [955D-EJ

5.01. The effect of amendment of Section 5 (6) is t~at it introduces F
a new disqualification "if he has attained the age of 65 years". This
disqualific:ation is not only for being appointed, namely, with reference to
future ap11ointment, but even with regard to a supervening disqualification
covering cases of those who have attained the age of 65 years and being a
member or the Board. [957G-958A]
G
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 ~>ection 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) H
926 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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,
B 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) not-
C withstanding 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
D 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 distinc.tion between those on the
daie of the enactment are "below" or "over" 65 years of age. Such a
distinction is totally unwarranted. The crucial question to be asked is
E 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
F otnce while a person already 65 on that date and after the passigg 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]
G Pasupati Nath Sukul, Election Commission of India, State of
U.P. v. Nern Chand Jain and others, [1984] 2 SCC 404; Election
Commission, India v. Saka Venkata Subba Rao, [1953] SCR
1144 at page 1157; R. v. Ministry of Agriculture Fisheries and
Food, ex parte Jaderow Ltd. and others, 1991 All England Law
H Reports 41, referred to.
STATE v. K.C. MAHAJAN 927

Wade's Administrative Law (6th Edition), Page 520-21, referred A
to.

6.01. There is a great distinction between the legislative intention
and the 1mrpose 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 B
enacted. For determining the purpose of object of legislation, indeed, it is
permissible to look into the circumstances which were prevalent at that
time whm the law was enacted and which necessitated the passing of that
enactment. For the limited purpose of appreciating the background and
the antecedents factual matrix leading to the legislation it is open to the C
court to look into the statement of'Objects and Reasons' of the Bill which
accentuated the siatement 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 d1 sirability of introducing an age of superannuation as the same is D
entrencb ed 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 con-
clusion 11ossible is, by reason of appointment if the incumbent is enabled
to conti11ue after attaining the age of 65 years such continuing is rendered E
void. [%5B-D]

6.(13. 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
epexege! is. [9650] F
- )
6.04. Where the right to continue in office has been put an end to by
statute, ~ven then it may be complained that the other rights like salary and
perks wcould continue to be reserved and they could be claimed. To avoid that
contention, Section 3 (2) provides for compensation equivalent to the G
amount of salary and allowances for the unexpired term ofoffice. [967G]

6.115. On 13.7.90 the first respondent's right to hold office as Chair-
man/M•mber of Himachal Pradesh Electricity Board came to an end. The
State to pay the first respondent the salary, allowances and perks for the
period commencin& from 13.7.90 upto 25.7.92, had he continued in office H
92S SUPREME COURT REPORTS · [1992] 1 S.C.R.

A 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 liabili!Y·
[9848, DJ
Francis Bennions Statutory Interpretation (1984 edn.) at page
237; Staie of West Bengal v. Union of India, [1964) I SCR 371,
B referred to.

7.01. There cauld be a legislation relating to a single person. Assum-
ing 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 superannua-
tion of65 years of age, there is nothing wrong with the same. [971CJ
c
7.02. The legislative object is to introduce an age of superannoua-
tion. 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
D 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. [9758-C]

7.03. If the State is well entitled to introduce an age of superannua- (-
tion, how could that be called discriMination on unreasonable? The
E restdtant 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. Tile State of Bihar and
others, [1953) SCR 1129; Shri Ram Krisltana Dalmia v. Sltri
F Justice S.R. Tendo/kar & Others, (1959) SCR 279; Swastik Rub-
ber Products Ltd. etc. etc. v. Municipal Corporation of the City
of Poona & Anr., (1982) 1 SCR 729; Cltiranjit Lal Chowdhury f"

v. The Union of India and Ors., [1950) I SCR 869; 77zakur
Raglmbir Singh and Ors. v. Tile State of Ajmer (Now Rajasthan)
& Ors., (1959] SCR 478; Lachlzman Das on behalf of Fim1 Tilak
G Ram Ram Bux v. State of Punjab and Ors., (1963) 2 SCR 353
at page 374; Tilkayat S/zn Govindlalji Maharaj v. The State of
Rajasthan & Ors., (1964) 1 SCR 561; S.P.Mitta/ 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; La/it
H Narayan Mishra, Institute of Eonomic Development and Social
STATE v. K.C. MAHAJAN 929

Change, Patna etc. v. State of Bihar & Ors. etc., [1988] 3 SCR A
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; Ameemnnissa
Begum and.Others v. Mahboob Begum and Others, [1953] SCR
404, referred to.
B
American Jurispmdence (2nd Ed.) Vol.63, Para 42, referred to.

8.01. The plea that the decision of the court in the absence of
Chauhan >1ould be violative of principle of natural justice as any adverse
decision wwld affect him is not correct. [982H]
c
8.02. What was the first respondent seeking in the writ petition'? tie
was questioning the validity of the. Ordinance and the Act whereby he had
been deprhed of his further continuance. What is the relief could he have
asked for against Chauhan? None. The first point is Chauhan came to
be appointtd consequent to the suspension of the first respondent which D
suspension had come to be stayed by the High Court on 12.6.90. Then,
again, as puinted out by the High Court it was "till further orders", the
-1 failure to impl~ad Chauhan does not affect the maintainability of the writ
petition. [9113D-E]

8. Prabhakar Rao and Others' v. State of Andhra Pradesh and E
Others, (1985] (Supp) SCC 432; A. Janardhana v. Union of
lndia and Others, (1983] 3 SCC 601 at page 626; Pritam Singh
v. 17ie State, [1950] 1 SCR 453, referred to.

State of Kera/a and Anr. v. Miss Rajia Rahim etc., AIR 1978
Kerala 176; Padmraj Samarendra and Others v. State of Bihar
F
,znd Anr., AIR 1979 Patna 266; A.R. Antulay v. R.S.Nayak &
Anr., [1988] Supp 1 SCR 1 at page 59, distinguished.

CIVIL APPELLATE JURISDICTIOIN : Civil Appeal No. 3062 of
1991. CJ
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 H
930 SUPREME COURT REPORTS [1992] 1 S.C.R.

A for the Appellants.

Kapil Sibal, Ranjit Kumar, Mrs. Rashmi Kathpalia, Yashana Ad-
hyaru and Sudhir Walia for the Respondents.

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

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

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

D NOTIFICATION

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

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

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

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

H "No. 8-155/73 - DP (Apptt. II), dated Shimla 2, the 12th May, 1986. " [
STATE v. K.C. MAHAJAN [MOHAN, J.] 931

Notification A

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

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

Notification

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

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

Chief Secretary to the
Government of Himachal Pradesh. H
932 SUPREME COURT REPORTS (1992] 1 S.C.R.

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

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

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

E On 30.3.90, the High Court while admitting the writ petition (CWP
No. 123 of 1990) ordered that no appointment to the post of Chairman of
the State Electricity Board will be made till further orders of the Court.
The matter was heard on 22.5.90. The learned Advocate General on
conclusion of his argument requested the court that the judgment may"not
F be pronounced since he desired to seek instructions from the Government
to reconsider the impugned order in CWP No.123 of 1990. On 11.6.90, the ·(
learned Advocate General submitted to the court that both the notifica-
tions dated 6.3.90 and 30.3.90 would be withdrawn. An undertaking to that
effect was given. Accordingly the writ petition was disposed of. Conse-
quent to this undertaking, by· notification dated 11.6.90, the Government of
G Himachal Pradesh withdrew both the notifications dated 6.3.90 and 30.3.90.
However, the matter did not rest there. On 11.6.90, a show cause notice
was issued to the first respondent for having abused his position as Chair-
man, H.P. State Electricity Board and also ex,officio Secretary, M.P.P. &
Power. lie was also asked to submit his explanation within 21 days as to
H why action should not be taken under Section 10 of the Electricity (Supply)
ST\TE v. K.C. MAHAJAN [MOHAN, J.] 933

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

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

On 13.7.90, the Governor of Himachal Pradesh issued an ordinance,
i.e·. H.P Ordinance 'Rule of 2/90, amending Section 5 (6) of the Electricity
(Supply! Act. The ordinance reads to the following effect :- H
934 SUPREME COURT REPORTS [1992] 1 S.C.R.

A "AUTHQRITATIVE ENGLISH TEST". ,S::

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

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

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

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

1. This Ordinance may be called the Electricity (Supply)
(Himachal Pradesh Amendment) Ordinance, 1990.
F
2. In Sub-section (6) of section 5 of the Electricity (Supply) i··-
Act, 1948, for the words "if he is a member of parliament", the
words "if he has attained the age of 65 years or is a member of
Parliament" shall be substituted.

G 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
H Pradesh Amendment) Ordinance, 1990, whereby a person has .,,.,.--
STATE v. K.C. MAHAJAN [MOHAN, J.] 935

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

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

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

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

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

NOTIFICATION

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

NOW, THEREFORE, in exercise of the powers vested in him under
sub-section (5) of section 5 of the. Electricity (Supplyj Act, 1948, the ·
Governor, Himachal Pradesh, is pleased to appoint Shri R.S.S.Chauhan,
Member (Operation), H.P.State Electricity Board as Chairman o(1i\ie HP H
936 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

By Order
M.S.Mukherjce

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

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

(i) malafides -

H (a) against the Chief Minister; and
STATE v. K.C. MAHAJAN [MOHAN, J.J 937

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

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

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

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

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

By mere curtailment of the term as Chairman of the Board without G
any mention about his inability or professional competence, so as lo affect
his reputation in any manner, no injury had taken place so as to complain
of violation of Article 21 of the Constitution. The pica of interference with
judicial power was negatived. The pica of violation of Article 19 that the
provision of compensation is illusory was negatived. H
938 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

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

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

Mr. Sha_nti Bhushan, learned counsel appearing for the State of
1!I
Himachal Pradesh after taking us through the orders of appointment and
the extensions would urge that though the inapplicability of the Ordinance
or Acts was not raised, the High Court had allowed the argument. In other
G words, it was never urged that the Ordinance/Act was not applicable to the
first respondent. A bare reading of Section 2 which amended Section 5
(6) of the Electricity (Supply) Act and Section 3 of the amending act, both
individually and conjoinly lead to the only conclusion that the Act dis-
qualifies every person from holding office who ·an the date of enactment,
H namely, 13th July, 1990 is above 65 years.
STATE v. K.C. MAHNAN [MOHAN, J.] 939

The Act on its own terms makes no distinction whatsoever between A
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 'ubmit that Section 5(6) as amended, would
disqual:.fy 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
B
being", this corresponds to Article 102 of the Constitution as well as Article
191, thi; provision being made applicable either to. the Members of Parlia-
ment or to the legislative body of the State respectively. It has been held
\e- in Pasupati Nath Sukul, Election Commission of India, State of U.P. v. Nem
Chand lain and Others, (1984] 2 S.C.C., 404 that on the incurring of the C
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'. There is no necessity to remove the first respondent, by resorting
to Section 10 because Section 5 (6) is self-executory. Therefore, by opera-
tion of law, the first respondent ceases to hold office on the date of coming D
into fo1 ce of the amending Act. ·

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

Section 3 of the amending Act was given retrospective effect from
13.7.90. This Section presupposes an appointment prior to amendment,
namely, prior to 13.7.90. In this case, the appointment gives a right to
continue after attaining the age of 65 years. If, therefore, the two tests are
answer.,d, the appointment is rendered void irrespective of the fact when G
the appointment took place. The "Objects &. Reasons" of the Act put the
matter beyond doubt. In our country, the concept of age of superannua-
tion is ~ntrenched both in administrative as well as constitutional systems.
Public policy requires to prescribe the age of 65 years for retirement of the
members of Electricity Board as in the case of High Court Judges, mem- H
940 SUPREME COURT REPORTS (1992] 1 S.C.R.

A hers of tribunal and other high functionaries.

The High Court had gone wrong as though the appointment of the
first respondent was not covered by Section 3(1) since the right to continue
as Chairman was pursuant to an appointment after he had attained the age
of 65 years. Factually this is incorrect because the appointment of the first
B 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
C 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
D office. As a matter of fact, Section 3 has been introduced only by way of
abundant caution. It is also to be noted that Section 3(1) contains a 'non
obstante' clause and it renders any judgment contract/order or contrary to
this Sub-section void. The legislature has introduced the non obstante
clause to put the matter beyond doubt.

E This legislation is general in its terms and its application. The fact
that at the relevant time of the amending Act or even the ordinance, the
first respondent alone was affected is no ground to hold that it is a single
person's legislation. This court, as a .matter of fact, has upheld such pieces
of legislation in Chiranjit Lal Chowdhury v. The Union of fltdia and Ors.,
F (1950] S.C.R. 869, {particularly the passages occurring at pages 878-79).
On the basis of its ruling it is submitted that even if it is held a single
person's legislation, if he constitutes a class by himself, such a legislation
would be valid. The same principle is stated in Thakur Rag/Jubir Singh and
Ors. v. 17ie State of Ajmer (Now Rajasthan) & Ors., (1959] S.C.R. 478.
Again in Lachhman Das on behalf of firm Tilak Ram Ram Bux v. State of
G Punjab and Ors., (1963] 2 S.C.R. 353 .@ 374, it has been held that a law
applying to one person or one class of persons. is constitutional if there is
sufficient basis or reason for it. In Tilkayat Shri Govind/alji Maharaj v. The
State of Rajasthan & Ors., (1964] 1 S.C.R. 561 where a legislation was
confined only to one of the temples, it was held not to be in violation of
H Article 14 of the Constitution. To the similar effect are S.P.Mittal etc. etc.
STATE 1·. K.C. MAHAJAN [MOHAN, .l.l 941

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

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

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

Even uthcrwisl'., today. !hi.! principle of natural justice ha~ assumed
grea: importance. If by reason of the decision of the cou,rl Chauhan is
ultitnatcly affected, and if that decision is rendered will1out hearing H
942 SUPREME COURT REPORTS [1992) 1 S.C.R.

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

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

G
Section 3(1) was aimed at only against this respondent. This is
undeniable. While the ordinance was under challenge in writ petition
before the High Court the amending Act came to be passed. This back-
ground has to be kept in mind to appreciate the submissions made on
H behalf of this respondent.
STATE v. K.C. MAHAJAN [MOHAN, J.] 943

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

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

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

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

On the factual aspect, it is submitted by the learned counsel, though
the iotifieations dated 12.5.86 and 12.6.89, use the word "extension" it is H
944 SUPREME COlJRT REPORTS 1199.2] 1 S.C.R.

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

B Much cannot be made of the words "or being" brought in by way of
amendment of Section 5(6). This only connotes the attainment of age of
65 subsequent to the appointment. When the Constitution uses similar
. language both under Articles 102 and 191, it made it clear that under both
the Articles 101 as well as 190, the seat falling vacant retrospectively on
c the incurring of such a disqualification there is no automatic cessation
provided under Section 10. Thus the words "has attained" occurring under
Section 5(6) assumes great importance because there is no provision under
Section 10 prescribing age of disqualification and the consequent removal.
Even under Section 5(6), it supposes a person being appointed before the
D age of 65 and attaining the age of 65. Such a contingency does not arise
here. Therefore, it is submitted that Sections 5(6) and 3(1) of the amend-
ing Act should be read together. As regards the amending Act, it cannot
be denied I hat on the date of ordinance it applied only lo the respondent
and nobody else. While Section 5(6) takes care of future appointment
Section 3(1) deals with reappointment. On the date of ordinance Section
-
E 5(6) would apply to nobody else l:>ecause this respondent alone ,was holding
a tenure appointment. The legislation was brought about only' with a view
to unseat the respondet1t. There can he a single person's legislation
provided it is in furtherance of legislative objects. The burden is on 'the
Stale to prove the reason or the basis for this legislation. Such a burden
had not been discharged.
F
Certainly, the reappointments stand apart. They ciinstitute a class
by themselves. A person initially appointed cannot be compared with a
reappointec. The former falling under Section 5(6) and the latter falling
under Section 8. If the respondent had been appointed after the age of
G 65, he forms a class by himself. Therefore, the Slate will have lo be sure
what exactly is the public purpose served or a social or economic obliga-
tion. Further. as a matter of fact, this was the te•t applied in all single
person's legislation. In all such cases whenever it was upheld either it was
on the ground nf mismanagement of the institution or a mill, or because it
A Was tn f~rtherancc uf a public purpose or a social or econon1ic obligation.
STATE v. K.C. MAHAJAN [MOHAN, J.] 945

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

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

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

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

A:; regards impleading Chauhan, it is submitted where this respon- H
946 SUPREME COURT REPORTS [1992) 1 S.C.R.

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

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

J
enough. Secondly, it takes away the right to emoluments after attaining
the age of 65 and substituting by compensation, notwithstanding the con-
tract to the contrary. Section lO(l}(d) is only an enabling provision. That
H does not, in any mariner, effect the operation of Section 5(6). It L• incorrect
STATE v. K.C. MAHAJAN [MOHAN, J.] 947

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

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

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

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

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

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

In this case the State wants to introduce the age of superannuation H
948 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

The same point is reiterated as seen from the statement of 'Objects
and Reasons' for the Bill No. 6 of 1990, which later on became Act 10 of
1990. We will now quote the relevant portion of the said statement of
F i -
Objects and Reasons.

"Section 8 of the Electricity (Supply) Act, 1948 (Act No. 54 of
1948) provides that the Chairman and other Members of the
State Electricity Board shall hold office fo.r such period and
G shall be eligible for reappointment under such conditions, as
may be prescribed. In other words no provision has been
made in respect of maximum age or period upto which a person
may serve as Chairman or Member of the Board. Indeed, the
provision after mandatory age of superannuation or specifica-
H tion of age beyond which an incumbent must cease. to hold
STATE v. K.C. MAHAJAN [MOHAN, J.] 949

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

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

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

- y "Barring a few .services in a few parts of the world as, for F
example, the American Supreme Court, the terms and condi·
tions of every public service provide for an age of retirement.
Indeed, the proposition that there ought to be an age of
retirement in public services is widely accepted as reasonable
and rational. 'The fact that the stipulation as to the age of
retirement is a common feature of all of our public services G
establishes its necessity, no less than its reasonableness. Public
interest demands that there ought to be an age of retirement
in public services. The point of the peak level of efficiency is
:----....r bound to differ from individual to individual but the age of
retirement cannot obviously differ from individual to individual H
950 SUPREME COURT REPORTS [1992) 1 S.C.R.

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

c allowed to generate in the minds of the junior members of the
services and the younger section of the society. The balancing
of these conflicting claims of the different segments of society
involves minute questions of policy which must, as far as pos-
sible , be left to the judgment of the executive and the legisla-
ture. These claims involve considerations of varying vigour and
D
applicability. Often, the Court has no satisfactory and effective
means to d~~ide which alternative, out of the many competing
ones, is the best in the circumstances, of a given case. We do
not suggest that every question of policy. Were it so this Court
would have declined to entertain pricing disputes covering as
E wide a range as case to mustard-oil. IJ'. the age of retirment is
fixed at an unreasonably low level so as to make it arbitrary
and irrational, the court's interferer{ce would be called for,
though not for foong the age of retirement but for mandating · a
closer consideration of the matter. "Where an act is arbitrary, it
is implicit in it that it is unequal both according to political
F
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
G finding out which way the balance tilts. That is an exercise
which the administrator and the legislature have to undertake".

For adumbrating this policy a legislation is enacted by the State. It
is not for this court to find out whether there was any need for such a
H legislation. Of course, for lack of legislative competence or for violation ~
STATE v. K.C. MAHAJAN [MOHAN, J.] 951

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

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

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

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

(2) The Board shall consist of not less than three and not more H
952 SUPREME COURT REPORTS (1992) 1 S.C.R.

A than seven members appointed by the State Government,

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

(4) Of the members -

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

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

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

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

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

Prior to the amendment in 1960, this disqualification must have been
incurred. within the 12 months last preceding. What is important for our
purpose is there is a disqualification for appointment in future when it says .'r.~
H "shall be disqualified from being appointed". Equally, "or being' means if
STATE v. K.C. MAHN AN [MOHAN, J.] 953

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

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

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

"4. Term of Office · (1) The Chairman and other Members
shall be appointed by the State Government and hold office
for such period and shall, on the expiration of their terms office, H
954 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

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

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

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

(b) is adjudged insolvent; or

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

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

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

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

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

(t) is convicted of an offence turpitude.

{2) The State Government may suspend any member pending
H an inquiry against him.
STATE'" K.C. MAJ IAIAN [MOHAN. J.) 955

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

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

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

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

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

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

catalogues without prejudice lo the generality of this power, as to what all
the ruks mav pnwide for. Certainly it cannot be contended that the items G
catalogued in Suh~~t:ction (2) arc cxhausth'l!. It is mcn.:ly iHuslratirl·.
Under Suh-section (2)(a) it is slated that the rules may pnwidc for (i) "the
pO\\'crs of lhc l'.hairman an<l thl.! tcnn of orficc of th,.; Chairn1an and other
memhcrs of the Board, (ii) the conditions under which they shall be digibk
for rl:appointmcnt and (iii) their rt:munl.!ration, alJo,vanccs and (iv) other H
956 SUPREME COURT REPORTS (1992] 1 S.C.R.
r
A 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
B 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
c of appointment contained under Section 5; (2) there is no separate 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.
D
The effect of Amendment under Section 5(6) of the said Act

With this we pass on to the amending section of 5( 6), by Act 10 of {
1990. The amendment was carried out to section 5(6) is as follows. This
can be brought out succinctly by a tabulated statement :- .
E
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
F (1) (2) (3)
5. Constitution and Composition of 5. Constitution and Composition of
State Electricity Board- State Electricity Board-
(1) The State Govt. shall, as soon (1) The State Govt. shall, as soon
as may be after the issue of the as may be after the issue of the
G notification under sub-section (4) notification under sub-section ( 4)
of sec. I, constitute by of sec. I, constitute by
notification in the Official notification in the Official
Gazette a State Electricity Board Gazette a State Electricity Board
under sub name as shall be under sub name as shall be
specified in the notification. specified in the notification.
H
STATE.-. K.C. MAHAfAN [MOHAN, J.] 957

(2) The Board shall consist of (2) The Board shall consist of A
not less than three and not not less than three and not
more than seven members more than seven members
appointed by the State Govt. appointed by the State Govt.
(3) xxx (3) x x x
( 4) Of the members- (4) Of the members - B
(a) one shall be person who (a) one shall be person who
has experience of, and has has experience of, and has
shown capacity in shown capacity in
commercial mat-ters and commercial mat-ters and
adrriinistration, administration,
(b) one shall be an Electrical (b) one shall be an Electrical
c
Engr. with wide expe- Engr. with wide expe-
rience, and rience, and
(c) one shall be a person who (c) one shall be a person who
has experience of accoun- has experience of accoun- D
ting and financial matters ting and financial matters
in a public utility under- in a public utility under-
taking, preferably an elec- taking, preferably an elec-
tric supply undertaking. tric supply undertaking.
(5) One of the members (5) One of the members
possessing of the qualifications possessing of the qualifications E
specified in sub-sec. (4) shall be specified in sub-sec. ( 4) shall be
appointed by the State Govt. to appointed by the State Govt. to
be the Chair-man of the Board. be the Chair-man of the Board.
(6) A person shall be disqualified (6) A person shall be disqualified
from being ~ppointed or being a from being appointed or being a F
-y member of the Board if he is a member of the Board he has
member of Parliament o~ any attained the age of 65 years or is
State Legislature or any local a member of Parliament of any
authority. State Legislature or any local
authority. G

The effect of amendment Section 5(6) is that it introduces a new
disqualification "if he has attained the age of 65 years". This disqualifica-
tion is not only for being appointed, namely, with reference to future
appointment, but even with regard to a supervening disqualification cover-
H
958 SUPREME COURT REPORTS (1992( 1 S.C.R.

A ing ca,es of tho'c who have allained the age .of 65 years and being a
member of the Board. ·.As already· slated, the words "or being" are of
considerable import. As. to what is the meaning of these words can be
gathered by two ruling.• of this Court which came to deal with the similar
language employed. (Ariiclc 102 in.relation to Members of Parliament).
In Electio11 Commissio11, llldia v. Saka Venkata Subba Rao, ll953J SCR
B. 1144 (it, 1157 it was ob~crvcd as .tinder :.- ·
"The u'e of the w;mi "become" in anicles 190(3) and 192(1) is·
not inapt. in the context, to include \\ithin its Scope pre-existing
disqualifications also, as bec<1ming subject to a disqualification
is prc<licati.:<l of "a member of a Hous~ or Lcgi~laturc'", and a
c person who, hei.ng. already. disqualified, gets elected, cannot
inapprnpriatcly, ·i,.: said hi ."bcwme" subject to the dis-
qualificalion as_ a mcrnh~-r as soon as he- -i~ t.:lcclc<l. The
argument is· ffiorc .ingt!nio~s than M>Und. Artie.le ·--I9i, \\"hich
lays <lo\\"n the same ~ct ll{ <lisqUatilications for election as \\'c~I
as for continuing a~ a m1.:mhi:r, and Arlie(~ 193 \\'hich prcscrihcs
D
the penalty fljr !'lilting and \"t1ling \\hen Ji!tlqualific<l, an: natural~
ly phraScd in t~·n11.\· 1rhll' ~·nouglr to cort•r both pre-existing anti
Jupcn·cning tlisquu!ijictUionJ·; hut il docs not ncci:~Sarily rollo\v
that articles 190(3). and 192( I) must also he taken tu cowr both.
Thi:ir mc.ining must Jcpi:nd on the language_ uscd .\vhich! \VC
E think, j, rca;unahly plain".

In Pa.1l111pati ;\"atli Sukul <'IC.,.. .Vmr Clta11dra Jain a11d Otlras, ( l'IS4J
~ S.t:.c. .itl-1 IQ- ~17. in p1.1ra t~ il is ~lated as L:IJ1dcr :- .

-"Artit.:lc 191 ,,f 1hc ('t•nsti1ulil1n pn:scrlhc~ the <lisqUalilico1th1~s
F for mcmhcr~hip of lht: Lcgislativc . A~!tlcmbly or- LcgisiatiYc
Council nf a State, OQ the incurring of any sue~ lli~qualification
a mcn1h1.:r of a Lcgi~lativc Assembly. or a Legislative Cuun..:il
ceases lo hc a menlbcr thereof~"
Thcrdorc. it will follow that once this disqualificatinn of attaining
G the age ,,f (1) ycar~ is incurrc<l. thcrc is an automatic cessation from holding
orti~·c. Thi-.. is because Section 5(6) contains the: same phr3scology as is
found under Article 11!2 and· I'll. In our considered vkw Section 5(11)
applies to initial appoint"n1cn1._as \\'ell a\ lo thosc continuing in a[lpt1inln1c~l.
We will abu usefully rd~r to,.lmerica1i Jurispn11lc11ce (Vol. 63), al para -12.
H it is 'lated thus:- ·
STATE"· K.C. M~llAIAN !MOHAN. .I.I 959

"Disq11alijicatio11 ansini:.'uftcr election and he/ore or during tenn. A

- - Eligibility lo public office is of a continuing nature and must
exist al the commencement of the term and during the occupan-
cy· of .the office. The· fact that the candidate may have been
qualified ·at the time .of hi' clcdiun i' not sufficient to entitle
him to hold the office. ifat the• rime ,,f the commencement of
B
the term or <lurin~ the c1u11inu.1nl-.: , ,f I hi.: incumhcncy he ceases
to .be qualified";.

,. ~- - Ir is rather unfortunate that th. I heh Court has missed the true
import of th~ \vor<ls "or hcing". ThcrcflH\.', \\·c arc unahlc to subscrihc tn
the 11mJings of the High Court when it slates "the provision lays down the C
age of supcra~nuatinn for ~ mcmhcr pro~pCcti\:cly \Vhich <lisquali!ics a
person from heing appointed or hcing a member after he att;:1ins the age
of (1) years" by itself it docs not affect those who had been given appoint-
m"~nl after ha Ying 11ttainc<l the age of 65 years. The Lcgislat urc \\'<:IS
con . . cious of it, hut thought of enacting a provision like St:ction >on that D
account.

We an· ~nahh.: to sci: any \\/arrant for holding that Section 5((1) as
amended having regard to the use <.lf language ''or heing" \\.'Ould any \Vay
exclude such of those memhcrs or even the Chairman who have attaint:<l
E
th..: age of 65 ycars of age al the tiinc of appointment According~ \VC
conclude that Section 5 (<>) itself would be enough to hold !.hat on the
coming into forct.: of the amending Act, namely~ 13.7.90 the first respondent
ceases to hold the office by the rigour of law. as rightly contended hy Mr.
Shanti Bhushan, learned counsel for the appellant.
F
No\v we shall proceed to consider as to \vhy a corresponding amend-
ment has not been prnvided hy incorporating this disqualification. The
argument of Mr .. Kapil Sibal is that the attaining of 65 years is· not lP he
cnnsi<ll.!rcd as disqualilication as <ithcr\vise Section 10 \vould provide for
"'ch a situation. lt has already been seen that Section 10 merely confers G
an cnahling po\vcr to take puniti\c action. It is one thing the State has
pov1cr lo take punitive action, it is entirely different thing to say that in la\v
the first respondent ceases to hold office on the incurring of the dis-
...,. qualification of allainmcnl of u5 years of age. If Scction 5(6) itself hrings
ahoul a cessation ••f office. that Sub-section being sclf-exccutory in nature, H
960 SUPREME COURT REPORTS (1992] 1 S.C.R.

A there is no need to provide for the san1-;,' under Section 10 once over again.
Merely because the parent Act (Central Legislation) provides for a dis-
qualification on account of becoming a Member of Parliament, State
Legislature or Local Board, that does not mean there must be a cor-
responding provision incorporating age as well under Section 10. We are
unable to agree with Mr. Kapil Sibal. Equally, the contention that Section
B
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 separate
power for reappointment under Section 8 and the only power being trace-
able to Section 5 read with Sections 14 and 16 of the General Clauses Act.
c
Factually we will now consider whether this is a case of reappoint-
ment at all. 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.
These two orders of appointment do not concern very much.
D
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.
E
"GOVERNMENT OF HIMACHAL PRADESH
DEPARTMENT OF PERSONNEL-II

No. 8- 155/73 - DP (Apptt. II} Dated Shimla -2, the 13th Aug. 1982.
F 1--
NOTIFICATION

In exercise. of the powers conferred by section 5 of the
Electricity (Supply) Act, 1948, the Governor, Himachal
Pradesh, is plcasea to appoint Shti Kailash Chand, Retd. Chief
G 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 r~
H his appointment has already been issued separately.
STATE v. K.C. MAHAJAN [MOHAN, J.] 961

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

By Order
K.C.Pandeya
Chief Secy. to the
B
Govt. of Himachal Pradesh".

As seen from the above, the number of the order is 8-155173-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 C
· 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 8/155173 - 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 D
appointment." Therefore, where the original appointment dated 12.5.86 is
extended from time to time, it is futile to contend that these are fr.,,;h
appointments. While we are on this we have also got 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 :- E

"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 F
- '1'
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 ,
w~~~ G
The statement of 'Objects and Reasons' makes a reference to Section
8. But it does not again mean there is an independent power of appoint-
ment What the above extract of counter affidavit and reference to Section
8 mean is denial of malafide. Besides, hithe.rto no outer age limit has been H
%2 SUPREMF COURT REPORTS (1992[ 1 S.C.R.

A prcscrihed for lhe posl of Chairmanship. It is that which is sough! to be

-
prcscrihcu now. The rcfcwncc to Section s means only the "term" and
nothing else.

We arc also unable lo accept lhc argumenls advanced on behalf of
lhc first resp(mdent that for a lenure post no period can he fixed. lnslan-
B ccs arc nol wanting in 1his regard. Therefore, rightly reference is made by
Mr. Shanli Bhushan to Ar1iclc 224 of the Constitution extract of which is
giwn below:-

"22~. Appointmenl ,,f addi1ional and acting Judges - (1) If by
rca.snn of any temporary increase in the business of a High
c C'ourl or by rcaS<m of arrears of work therein, it appears lo the
President 1ha1 1hc number of 1hc Judges of !hat court should
he for the lime heing increased. the Presidenl may appoinl duly
qualified persons lo he additional Judges of the Courl for such
pcrio<l not exceeding l\\'O years as h~ may specify.
D
(2) When any .Judge of a High Court other than the Chief
.Justice is hy r~ason of ahscncc or for any other reason unable
to perform the duties of his office or is appointed to act
lemporarily as Chief .Justice, the Presidcnl may appoinl a duly
qualified person 10 acl as a Judge of thal Court until lhe
E. permanenl .Judge has resumed his duties.

(1) No pers<Hl appointed as an additional or acting Judge
of a High Courl shall hold office after allaining the age of
(Sixty- two year.)".
F Again. a rcfCrcnc.i.: can he rna<ll: to Section S of the A<l-
minislraliw Trihunals Act. Thal Section reads as follows :-

"Term ,,f Office - The Ch,1irman. Vice Chairman or other
Memher shall hold oflice as such for a term of five years from
G tk date on which he enters upon his office, but shall be eligible
for n.:appt1intmcnt for :.•nothcr tern1 of five years :

Pro\'ided lhal no Chairman. Vice-Chairman nr other Mcm-
hcrs shall hold office as such after he has auaincd -

H (a) in the case of the Chairman or Vice-Chairman, the age
STATE v. K.C. MAHAJAN (MOHAN, J.J 963

of sixty five years, and A
(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. B
771c scope of Section 3 of Electricity (Supp(v ), (H.P.Amendme111) Act,
1990 and ivhcther it is bad as si11g/e person's legislation.
>- Section 3 of the Amendment Act reads as follows :-
c
"3. (I) 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 .iudgment.
decree or order of the court or in any contract, any appoint-
ment made before the commencement of the Electricity (Supp- D
ly) (Himachal Pradesh Amendment) Act, 1990, wherehy a
person has a right to continue as a member of the Board after
,, > attaining the age of 65 years, shall he void; and on such
commencement he shall be deemed to have ceased to hold
office of the member of the Board.
E
(2) On ceasing to hold office of the member of the Board
under sub-section (1} such member shall be entitled to com-
pensation as may he determined by the State Goverment; but
such compensation shall not exceed the amount equivalent to
the amount of salary and allowances payable to him for -his
unexpired term". F

One thing that is significant is it contains a 'non·obstantc' clause. An
appointment of a Member of the Board made prior to the commencement
to this Act namely, B.7.90 (giving retrospective operation) when gives a
right to continue as a member after attaining the ~gc of 65 years, that G
appointn11.:nt is rendered void.

This non-ohstantc clause is a sweep. It applies (I} notwithstanding
am1hing l<> the contrary in any provisions of the Electricity (Supply) Act;
(2) rub and regulations. hye-laws made therein; (3) any judgment, decree
or ord1.:r of the court: and (4) any contract. H
964 SUPREME COURT REPORTS (1992) 1 S.C.R.

A Once it is so rendered void, the Jaw 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
B 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 ofoffice, in view
of the terms of that Section. The contrary conclusion would lead to strange
c results. Those who are appointed prior to the Act and on the attainment
of 65 years on 13.7.90, would vacare 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
offict;. The object of introducing an age of superannuation itself is to weed
D out the older. elements and infuse fresh blood so that the administration
ctmld function with vigour.

Mr. Kapil Siba~ 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 Francjs Bennion's Statutory Inter-
E pretation (1984 edn.) at page 237. The distinction between.the legislative
intention and the purpose or object of the legislation has been succinctly ·
summarised as under:-

'The distinction between the purpose or object of an enactment
F and the legislative intention governing it is that the former
relate~to the mischief to which the enactment is directed and r _...
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
G 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
H the passing of that enactment. F6r the limited purpose of appreciating
STATE v. K.C. MAIWAN (MOHAN, J.] 965

the background and the antecedents factual matrix leading to the legisla- A
tion 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. 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
B
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.
entren.ched in our administrative and constitutio1tal systems. With this
object in view, Section 3 intends that no one has a right to continue as a C
member of the Board a(ter attaining the age of 65. Thus, the only con-
clusion 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
D
this purpose. Yet if there "is another Section which deals with the same it
must be regarded as one introdued by way of abundant caution. In short,
Section 3(1) is epexegesis.

The agruments advanced by Mr. Kapil Sibal remind us of the elo- E
quent words of Dr. Johnson "There is a wicked inclinatiop in most people
to suppose an old man decayed in his intellects. If a young or middle-aged
man, when leaving a co~pany, does not recollect where he laid his hat, it
is nothing; but if the same inattention is discovered in an old man, people
- ,, wiil shrug up their shoulders, and say, 'His memory is going'."
F
It our opinion such sentiments can be no answer against the opera-
tion 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 G
matter of this kind, as to whether legitimate expectation could be pleaded
is a moot point. However, we will now refer to Wade's Adn1inistrative Law
(6th Edition) wherein it is stated at page 520-21, as under : -

"Legitimate expectation : positive effect H
966 SUPREME COURT REPORTS fl992f l S.C.R.

A The classic situation in which the principles of natural justice
apply 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 licence is revoked. But good ad-
ministration demands their observance in other situations also,
where the citizen may legitimately expect lo be treated fairly.
B As Lord Bridge has explained :

Re Wcstministcr CC (1986) AC ('68 at (fJ2. Lord Diplnck
made a formal statement in the Council of Civil Service Unions .
case (below) at 4408, saying that the decision must affect some
c other person either - (a) by altering rights or onligations of that
person which are cnforccahlc hy or against him in private law;
or (h) hy depriving him of some benefit or advantage which
either (i) he had in the past been pcrmitlcd by the dccision-
makcr to enjoy and which he can legitimatdy expect to be
permitted to continue to do until there has been communicated
D lo 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.
E
This analysis is 'classical hut certainly not exhaustive : R.
Secretary of Slate for the Environment ex. P. Notlinghamshire
CC (1986) AC 240 at 249 (Lord Scarman). O~c case which
dues nol seem to be covered is that of a first-time applicant for
a licence (hdow. p. 559). The courts have developed a rela-
F tively nm·d doctrine in puhlic law that a duty of consultation
m"y arise from a legitin1atc cxpc(.;tation of consultation aroused
either by a promise or hy an cstahlishcd practice of consult-
ation".

G In a recent <.:a!-.C, in <lcaling \vith legitimate expectation in R. v.
Ministry of Agriculture Fisheries and Food. <:r pane Jaderow Ltd and Others.
p991J All England Law Reports 41. It has been observed at page 6S :-
""Question II : Legitimate Expectation: It should be pointed 1>ut
in this regard that, under the powers reserved to the member
H stales hy Art. 5(2) of Regulation 170/83, fishing activities could
SlAff 1·. K.C. MAI IN1\N IMOllAN, J.] %7

he made subject to the grant of licences which, by their nature, A
are subject to temporal limits and to various conditions. Fur-
thermore, the introduction of the quota system was only one
event amongst others in th.e 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,
B
in 1976, of fishing areas to 200 miles from certain coasts of the
community, the necessity to adopt measures fer the conserva-
tion of fishing resources, which was dealt with al the intcrna-

'
t.ional
. .
bv the introduction of total allowable catches, the
>- arguments about the distribution amongst the mcmhcrs states
of the total allowable catches available to the Community, c
which were finally distributed on the basis of a reference period
whicb ran from 1973 lo 1978 but which is reconsidered every
year.

In those circun1stanccs, operators in the fishing industry
were not justified in taking the view that the Community rule D
precluded the making of any changes lo the conditions laid
down hy national legislation or practice for the grant of licences
_,. ' lo fish against natit10al quotas or the adoption of new condi-
tions ·compatihl~ \Vith community La\v. '
E
l'onscqucntly. the ans\vcr to this question must be that
('ommunily La\\' as it no\V stand~ docs not preclude legislation
or a practicl' of a memhcr slate \vhcn.:hy a new condition not
previously stipulalcJ is laid do\vn for the grant of licences to
fish against national 4uolas."
F
Thus, il \viii he clear ~ven h:gitimaH.: expectation cannot preclude
legislation.

Where the right to continue in office ha' hi:en put an end to by
statute, even then it may he complained that the other rights like salary and G
perks \Vould continue lo he rLs.:r\·('J <.ind they cnuld he claimed. Tn ;.i\'oid
that contcnti\ln, Section .~(2) pn ,idl's for compensation L'4ui\'alLnl lo the
1

amount nf ... alary·an<l 011!0\Vancl.'." lor the unexpired h.'rnt of oflicl.'.

E\'cn ~1ssuming that the r1,:asnni11g. 111' the High court is cnrrccl. in that,
hy the tcrn1 of .ipp11intn1cnt h.: should have J right tu continue after H
968 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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 counte.r arguments proceed thus. Mr. Shanti
Bhushan would urge that it happened at the time of enactment only the
B first respondent had attained the age of 65 years and , therefore, it could
not be called a single man's legislation since it affects everyone. On the
contrary, the argument of Kapil Sibal is that only the first respondent
alone could be affected and, therefore, it is a single person's legislation
being violative of Article 14 of the constitution. We will look at the
c 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
D 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
purposes of legislation, provided there is sufficient basis or
reason for it and there is a strong presumption in favour of the
E 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 dis-
criminated 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
F 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. Tendo/kar &
Others, [1959] S.C.R. 1959 @ 296-299, it has been held thus :-
G "..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 intel-
H ligible diffcrentia which distinguishes persons or things that are
STATE v. K.C. MAHAJAN [MOHAN, J.} 969

grouped together from others left out of the group and, (ii) A
that that differentia must have a rational relation to the object
sought to be achieved by the statute in question. The classifica-
tion may be founded on different bases, 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 B
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 - C
(a) that a law may be constitutional even though it relates to
a single individual if, on account of some special circumstances
or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by hims.elf ;
D
(b) that there is always a presumption in favour of the con-
stitutionality 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 ;
E
(c) that it must be presumed that the legislature understands
and correctly appreciates the need of its own people, that its
laws are directed to problems made manifest by experience and
that its discriminations are based on adequate grounds ;

(d) that the legislature is free to recognise degrees of harm F
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 G
knowledge, matters of common report, the history of the times
and may a(sume every stale of facts which can be conceived
existing at the time of legislation ; and

(f) that while good faith and knowledge of the existing condi-
tions on the part of a legislature are co be presumed, if there H
970 SUPREME COURT REPORTS [1992J l S.C.R.

A i.' nothing on the face of the law or the surrounding circumstan-
ces brought to the 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 I

B reasons for subjecting ccrtaiq individuals or corporations to
~
· hostile or discriminating legislation.

The above principles will have to he constantly borne in mind
.by the court when it is called upon to adjudge the con-
stitutionality of ar.y particular law attacked as discriminatory
c and violative of the equal protection of the laws.

A close pcrsual of the decisions of this Court in which the above
principles have hcen 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,
D
may he placed in one or other of the following live classes :-

(i) A statute may itself indicate the persons or things to whom
its provisions arc intended to apply and the basis of the clas-
sification of such persons of thing.' may ap!Jear on the face of
E the statute or may be gathered from the surrounding cir-
cumstances known lo or brought to the notice of the Court. In
determining the validity or otherwise or such a statute the court
has lo examine whether such classification is or can be
reasonably regarded as based upon some differentia which
F 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 of persons or things. Where the Court finds that
G the classification satisfies the tests, the court will uphold the
validity of the law, as it did in Chira11jiral Owwdhari v. The
U11io11 of /11dia, n1c Scare of Bombay v. F.N.Balsara, Kedar Narh
Bajoria v. n1e Srare of Wesr Be11ga/, V.M. Syed Molrammad &
I
Company v. n1e Slate of A11dltra and 8/111dha11 Choudhary '"
H nre Stare of Bilrar.
/-
STATE v. K.C. MAHAJAN [MOHAN, J.J 971

(ii) A statute may direct its provisions against one individual A
person or thing or to several individual persons or things but
no reasonable basis of classification may appear on the face of
it or be deducible from the surrounding circumstances, or
matters of common knowlegde. In such a case the court will
strike down the law as an instance of naked discrimination, as B
it did in Ammenmnissa 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
'r- 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 C
introduce an age of superannuation of 65 years of.age, there is nothing
wrong with the same.

In Lachman Das on behalf of Jinn Tilak Ram Ram Bux v. State of
Punjab and Others, (1963] 2 S.C.R. 353@ 375, it is held as thus:-
0
"... Professor Willis says in his Constitutional Law p580 "a law
applfing 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 Cliowdhry v.
Union of flldia." E

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 Tilkayat Shri Govindlalji Maharaj v. nie State of Rajastlwn and F
others, (1964] S.C.R. 561@ 617-18, it is held as thus :-

"That takes us to the argument thal 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 G
of 1959 was issued. it had come to the knowledge of the
Government of Rajasthan that valuables such as jewclleries,
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 Stale of Mewar, the Slate of Rajasthan had to H
972 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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
B
for the administration of the temple properti~s and for ihat
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 thought that it was essential to -"'(
c safeguard the interests of the temple by taking adequate legis-
lative 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.Jaw may be con-
D
stitutional even though it relates to a single individual if, on
account of some special circumstances or reasons applicable
tcr hint and not applicable to others, that single individual may
be treated as a class by himself. Therefore, the plea raised
under Art.14 fails.
E
In La/it Narayan Mishra Institute of Economic Development and
Social Change, Patna, etc. ·v. State of Bihar & others etc., [1988] 3 SCR 311
@ 312 it is held thus :-

"All the institutions which answered the description given in
F section 2(a) of the Act were to be nationalised. It was not
correct to say that the Institute had been singled O\lt for
natidnalisation;11

@ p. 321 it is held thus :-

G " The nationalisation has been resolved to be made in phases.
It has been already noticed 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 In-
H stitute and in view of section 3(1) it has vested in the State
STATE v. K.C. MAHAJAN [MOHAN, J.] 973
'
Government. It is said that the first phase relates to the taking A
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 fie nationalised not
B
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.

'r-· . @ p. 232, it is held as· under :-
·c
" The contention made on behalf of th.e petiti'1mer-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 [s apparent from the provisions of the
Ordinances and the Act that the private educational institutions
as defined therein are to be taken over for the purpose .as D
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 In-
stitute has been singled out for the purpose of nationalisation. E

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 con-
templates that by and by the object of nationalisation will be
-· '-I taken over. Therefore, in implementing the nationalisation of F
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 not arise,
for as the provisions of the Act and the Ordinances go, all the
private educational institutions, as defined in section 2(a) of G
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 H
974 SUPREME COURT REPORTS (1992] 1 S.C.R.

A colourable device to single out the Institute for discriminatory
treatment. The taking over of the Institute is an act of legisla-
tion 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
B 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-im-
plementation 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,
c 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
D 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 in-
cluding the other similar institutions in the programme of
E 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 re.spondent alone is affected it would
F 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 affef:ted thereby. lnspite of this the Court
G 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 re;isons
H namely, mismanagement requiring taking over the banks and temples etc.
STATE v. K.C. MAHAJAN [MOHAN, J.] 975.

and therefore, the single person's legislation was upheld is not tenable. We A
also hold that in order to justify a legislation of this character, no extraor-
dinary 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 B
State. The possibility of this legislation applying to one or more persons
e.xists in principle. The fact that only one indvidual 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 ap(Jlying to
one individual does not render the legislation invalid.
c
The theory advanced by the learned counsel for the first res(Jondent
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 77ie Atlas Cycle Industries Ltd., So11epat v. 17ieir Workme11, [1963]
3 S.C.R. Suppl. 89 @ 103-4, it is held thus :- D

"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 inopera-
tive. Two grounds were. urged in support of this contention. E
One is that Shri A.N.Gujral attainded 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
F
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 A111eeroo11issa v.
Me/Jboob as supporting this contention. There is no force in
this contention. There the legislation related to the estate of G
one Nawab Waliudduoula, and it provided that the claims of
Mehboob Begum and Kadiran Begum, 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 H
976 SUPREME COURT REPORTS . [1992) 1 S.C.R.
,.......
A 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 J)ccasion which inspired the
enactment of the statute might be the impending retirement of
B Shri A.N.Giljral. But that is not a ground for holding that it .is
discriminatory and contravenes Art. 14, when it is, on its ternis,
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 ---<
c were pending cannot be accepted.

However, strong reliance is placed on D.S.Reddy v. Chancel/or, Os-
mania r.Jniversity & Ors, [1967] 2 S.C.R,.Zt4 @ 223. The facts of this case
require to be noted they can be culled from the headnote as under :-
D
"As a result of the Osmania University (Ainendment) Act II ·of
1966, s.12(1) of the Osmania Univers_ity Act, 1959, was
amended to provide for the appointment of the Vice Chancel-
!or by the Chancellor alone; in s.12(2) a provision was intro-
E duced whereby he could only be removed from office by an
order of the Chancellor passed on the ground of misbehaviour
or incapaci.ty 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
F Act was also amended so as to reduce the term of office of the v
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
G this amending Act introduced a new s.13A into the 1959 Act
whereby it was provided that the person then holding the office
of Vke Chancellor was appointed; atid that such new appoint-
ment must be made within 90 days of the commencement of
the Act whereupon the old Vice Chancellor would cease to ~.

H hold office.
'
STATE v. K.C. MAHAJAN [MOHAN, J.] 977
----;
The appellant filed a writ petition claiming, inter alia, that s.5 A
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 apf>eal to the Supreme Court, it was contended on behalf
·of the respondents that as the term of office had been redt!ced
B
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 c
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 con-
stituted under the unamended s.12(2) whereas future Vice
Chancellors were to be appointed by the Chancellor alone; D
furthermore, the appellant had been the Vice Chancellor f~Jr 7

l 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 Chan-
cellors in the future; that such classificaiion was reasonable and
had a rational relation to the object sought to be achieved by
E
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
F
'--.+ the amended provisions as early as possible".
@ p. 229-230, it is held :-

"We have already staied 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 G
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
-or Chancellor is to be appointed by the Chancellor; but s.12(2) H
978 SUPREME COURT REPORTS (1992) 1 S.C.R.

A 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
B to have an opportunity of making· his representation against
such removal. Prima facie, the provisions contained in sub.s.(2)
of s.12 must also apply to the appellant, who did continue in
office even after the passing of the First Amendment Act. No
doubt the term of office of the Vice Chancellor was fixed at 3
c 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 by s.5 of
D 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
E 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 respon-
F
dent, 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 Univer-
sity, and though this circumstance has also been taken into
account by the learned Judges of the High Court, in our
G 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

H
by enacting s.13A, against one individual, viz. the appellant; and
before it can be sustained as valid, this Court must be satisfied
.,.
. ·-
"
'
STATE v. K.C. MAHAJAN [MOHAN, J.J 979

that there is a reasonable basis for grouping the appellant as a A
class by himself and that such reasonable basis must appear
either in the statute itself or must be deducible from othe.r
surrounding circumstances. According to learned coun.sel 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 appel-
B
lant 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.
c
@ 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
D

date of the commencement of the Second Amendment Act, E
from one single group or class. Even assuming that the clas-
sification of these two types of persons as coming under two
different groups can be made nevertheless, it is essential that
such a classification must be founded on an intelligible differen-
tia which distinguishes the appellant from the Vice Chancellor
F
.. appointed 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 G
•
s.12(2), the services of the appellant, who was also a Vice
Chancellor and similarly situated, is sought to be terminated by

a "1
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 H
980 SUPREME COURT REPORTS (1992) 1 S.C.R.

A no doubt reduced under the First Amendment Act and fo<ed
for 3 years for all the Vice Chancellors. Bur, 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, ap-
B
pointed 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
c 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."
D
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
A
between the then existing Vice Chancellor and the future Vice Chancellors,
E 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 La/it
Narayan Mishra Institute of Economic Developmelll and Social Change,
Patna, etc. v. State of Bihar and Others etc., (1988) 3 S.C.R. 311 @ 322 it is
F 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
G Osmania University {Second Amendment) Act, 1966· intro-
duced 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 ihat such
T
H new amendment must be made within 90 days of the commen-
STATE v. K.C. MAHAJAN [MOHAN, J.] 981

cement of the said· amendment Act whereupon the old Vice A,
Chancellor would cease to hold the office. It was held by this
Court thai there was no justification for the impugned legisla-
tion, that is, the provision of section .13A, resulting in a clas-
sification of the Vice Chancellors into two categories, namely,
the appellant as the existing Vice Chancellor and the future B
Vice Chancellors to be appointed under the Osmania Univer-
sity Act. It was held that both these categories constituted one
single group or class, and that even assuming that the classifica-
tion of these two types of persons as coming under two different
groups could be made, nevertheless, it was essential that such
a classifi~ation must be founded on an. intelligible ·differentia C
which would distinguish the appellant from. the Vice Chancel-
lors appointed under the Osmania University Aci. The Court
held that there was no intelligible differentia on the basis of
which the classification could be justified".
D
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 a particular set of persons .viz., E
heirs of Nawab. They were even denied access to Court to ventilate their
. greivances. Secondly, it was a named legislation. Though for apparent
purposes it de.als with specifically the .wivi's claims of succession. Lastly,
we will deal with Ram Prasad Narayan Sahi and Another v. 171e State of
Bihar and Others, [1953] S.C.R. 1129 @ 1132-33, it is held as under :-
F
"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 compa!'y, G
because the mismanagement of the company's affairs prejudi-
cially affected the production of an essential commodity and
caused serious unemployment amon~t a section of the com-
l munity. Mr. Justice Das and I took the view that legislation'
directed against a particular named person or corporation was H
982 SUPREME COURT REPORTS 11m11 s.c.R.
A obviously discriminatory and could not constitutionally be jus-
tified even if such legislation resulted in some benefit to the
public. In a system of Government by political parties, I \vas
apprehensive of the danger inherent in sp·ecial enactments
which deprive particular named person of their liberty or
property because the Legislature thinks them guilty of miscon-
B
duct, and said in ·my dissenting opinion :

" Legislat.ion 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
c 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
D appellant a right to decision by a court of law and that too in a private

A
dispute between the parties. Hence, this ruling again has no application
to the facts of ·the case. As we observed in the beginning of the judgment,
if the State is well entitled to introduce an age of superannuation (we have
referred to [1985] 2 SCR 579 Nagaraja's case), how could that be called
E 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 Chauha1! would be fatal to the Writ
Petition?
F
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.LR. 1979 Kerala 179. Thal case related to admission to medical
college whereby invalidating the selection vitally affected those who had
G been selected already. Equally, the case Padmraj Samrendra and others v.
State of Bilwr and Anr., A.LR. 1979 Patna 266 has no application. This
was a case where the plea was founded in Article 14 and arbitrary selection .

H
The selcctces were vitally affected. 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. •
STATE v. K.C. MAHAJAN [MOHAN, J.] 983

On the contrary, we think we should approach the matter from this' A
point of .view, viz., to render an effective decision whether the presence of
Chauhan is necessary ? We will in this connection refer to A. Ja11ardltana
v. Union of India and Others, [1983] 3 S.C.C. 601, @ para 36 it is held as
under:-
B
"...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 C
fail on 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 he have asked D
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". There-
fore, we hold the failure to implead Chauhan does not affect the main-
tainability of the writ petition.
E

One postscriptum needs to be added. It was argued on the basis of
Pritam Singh v. 17ie State, [1950] S.C.R. 453 that unless the court comes to
the conclusion that the High Court is palpably wrong, it should not inter-
fere. No doubt, the same principle is stated in Unio11 of India v. M.P.Si11gh, F
[1990] (Suppl.) S.C.C. 701 that if substantial justice is done the interference
under Article 136 is not warranted. We do noc think this principle will
have any application.

· There is no denying the fact that the first respondent had
G
"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
7 words of Sir John Vanbrugh (in ''The Provoked Husband"). H
984 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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
8 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.
396of1990 dated 12th July, 1991 is hereby set aside. The appeal will stand
allowed.

C 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 ·
D 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.