Case: State Of H.P.  Vs. Kailash Chand Mahajan

The Court held that there was no intelligble differentia on the basis of which the classification could be justified." 98. The situation in the case in hand is entirely different.Ameerunissa Begum and others v. Mahboob Begum and others, 1953 S.C.R. 404 is clearly distinguishable. The reason is the impugned enactment excluded a particular set of persons viz., heirs of Nawab. They were even denied access to Court to ventilate their grievances. Secondly, it was a named legislation, though for apparent purposes it deals specifically with the wives claims of succession. Lastly, we will deal with Ram Prasad Narayan Sahi and another v. The State of Bihar and others, 1953, S.C.R. 1129. At 1132-33, it held as under :- ``The decision of the majority of this court in Chiranjit Lal v. The Union of India, is relied on in support of these contentions. In that case, however the majority fell justified in upholding the legislation, though it adversely affected the rights and interest of the shareholders of a particular joint stock company, because the mismanagement of the companys affairs prejudicially affected the production of an essential commodity and caused serious unemployment amongst a section of the community. Mr. Justice Das and I took the view that legislation directed against a particular named person or corporation was obviously discriminatory and could not constitutionally be justified even if such legislation resulted in some benefit to the public. In a system of government by political parties I was apprehensive of the danger inherent in special enactments which deprive particular named persons of their liberty or property because the Legislature thinks them guilty of misconduct, and said in my dissenting opinion: "Legislation based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think receive judicial encouragements. 99. It has to be carefully noted that this Act was intended to deny the appellant a right to decision by a court of law and that too in a private dispute between the parties. Hence, this ruling again has no application to the facts of the case. As we observed in the beginning of the judgment, if the State is well entitled to introduce an age of superannuation [we have referred to 1985(2) SCR 579 Nagarajas case], how could that be called discrimination or unreasonable? The resultant conclusion is the amending Act, particularly, Section 3 is not, in any way, arbitrary and, therefore, not violative of Article 14. Whether the failure to implead Chauhan would be fatal to the Writ Petition. 100. The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.I.R. 1979 Kerala 179. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra and others v. State of Bihar and another, A.I.R. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally affected. The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct. 101. On the contrary, we think we should approach the matter from this point of view, viz., to render an effective decision whether the presence of Chauhan is necessary? We will in this connection refer to A. Janardhana v. Union of India and others, 1983(3) S.C.C. 601. At para 36 it is held as under :- "... Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by any one individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground." 102. What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders." Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.103. One postscriptum needs to be added. It was argued on the basis of Pritam Singh v, The State, 1950 S.C.R. 435 that unless the court comes to the conclusion that the High Court is palpably wrong, it should not interfere. No doubt, the same principle is stated in Union of India v. M.P. Singh, 1990(2) SLR 3 (SC) that if substantial justice is done the interference under Article 136 is not warranted. We do not think this principle will have any application. 104. There is no denying the fact that the first respondent had been "baffled with great grief and fears and borne the conflict of dream shattering years." But the State says that this is a case of "much of a muchness" in the words of Sir John Vanbrugh (in "The Provoked Husband"). 105. 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"). 106. 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 respondents right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. Section 3 of the amending Act was given retrospective effect from 13.7.90. This Section presupposes an appointment prior to amendment, namely, prior to 13.7.90. In this case, the appointment gives a right to continue after attaining the age of 65 years. If, therefore, the two tests are answered, the appointment is rendered void irrespective of the fact when the appointment took place. The "Objects & Reasons" of the Act put the matter beyond doubt. In our country, the concept of age of superannuation is entrenched both in administrative as well as constitutional systems. Public policy requires to prescribe the age of 65 years for retirement of the members of Electricity Board as in the case of High Court judges, members of tribunals and other high functionaries.22. The High Court had gone wrong as though the appointment of the first respondent was not covered by Section 3(1) since the right to continue as Chairman was pursuant to an appointment after he had attained the age of 65 years. Factually this is incorrect because the appointment of the first respondent as Chairman was on 13.8.82. Thereafter the same appointment came to be extended from time to time. Each of those extensions cannot constitute a new appointment. It is one appointment which is being continued from time to time. Legally speaking also, the reasoning of the High Court is wrong because it leads to unconstitutionality.Looking it from that point of view this is a legislation which applies to all. The chance that the first respondent was affected at the relevant time by introduction of this legislation will not in any manner render it violative of Article 14 on the ground thatit is a single personsa matter of fact, the counter-affidavit of the State makes it clear that the order of reappointment came to be passed under Section 5 read with Section 8 rule 4. The statement of `Objects and Reasons also makes a reference to Section 8. Thus, both legally and factually Section 5(6) cannot help the State.34. 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 makes it clear that under both the Articles 102 as well as 190, the seat falling vacant retrospectively on the incurring of such a disqualification there is no automatic cessation provided under Section 10. Thus the words "has attained" occurring under Section 5(6) assume great importance because there is no provision under Section 10 prescribing age of disqualification and the consequent removal. Even under Section, it supposes a person being appointed before the age of 65 and attaining the age of 65. Such a contingency does not arise here. Therefore, it is submitted that Sections 5(6) and 3(1) of the amending Act should be read together. As regards the amending Act, it cannot be denied that on the date of ordinance it applied only to the respondent and nobody else. While Section 5(6) takes care of future appointment Section 3(1) deals with reappointment. On the date of ordinance Section 5(6) would apply to nobody else because this respondent alone was holding a tenure appointment. The legislation was brought about only with a view to unseat the respondent. There can be a single persons legislation provided it is in furtherance of legislative objects. The burden is on the State to prove the reason or the basis for this legislation. Such a burden had not beenit is clear but for mismanagement or subserving a public cause or a social or economic obligation, such pieces of single persons legislation would not have been upheld.36. Certainly, there may be a legislation in general application and it may apply to an individual; but that is not the case here. On the date of the coming into force of the Act this respondent alone was affected. The amending Act itself makes a discrimination without any justification or rationale. If the respondent is treated alongwith others, it would amount to treating unequals as. A careful reading of the Section will clearly disclose the section merely talks of term of office and conditions for reappointment. Those conditions may be as prescribed. The word "prescribed" has come to be defined under Section 2(9) of the said Act. "Prescribed" means prescribed made by rules under this Act. Nowhere in the Section, in our considered view, an additional power for appointment is conferred. At best it could be said that it merely lays down the eligibility for reappointment. As stated above, that eligibility must be as per conditions prescribed under the rules. As a matter of fact, when it says "shall hold the office for such period" it means the period as prescribed under the rules. Beyond this, we are unable to persuade ourselves to come to the conclusion that there is any separate power for reappointment. It is not even necessary to provide for such a separate power. The reason why we say so is that Sections 14 and 16 of Central General Clauses Act provide for such a power. Section 16 deals with the power of appointment carrying with it the power of dismissal, while Section 14 states any power conferred unless a different intention appears could be exercised from time to time as occasion requires. Where, therefore, Section 5 provides for a power to appoint, certainly, that power could be exercised from time to time as occasion requires. Thus one need not search for a separate provision in this regard. We may also note that the prescriptions in relation to the term was contained under Electricity (Supply) (H.P. Amendment) Act, 1990.In our view this Section confers an enabling power on the State Government to take punitive action against a member of the Board who falls under any one of the clauses (a) to (f). The fact that it is punitive is clear because Sub-section (3) contemplates giving an opportunity to offer an explanation and thereafter removing him. Once so removed, he is ineligible for reappointment either as a Member or any other capacity in the Board.One thing that is striking is that rules may themselves provide for eligibility for reappointment. In this connection it may not be out of context to refer to the letter of the Ministry of Home Affairs asking the State to explore the possibility of making rules instead of amending the Act. This was at a time when the State Government sought the assent of the Present. Where, therefore, rules could provide for the conditions for eligibility for reappointment, equally it should follow by amending the Act such eligibility for reappointment can be provided. In the conspectus of this Section it would be thus clear - (1) there is only one source of power of appointment contained under Section 5; (2) there is no 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.It is rather unfortunate that the High Court has missed the true import of the words "or being". Therefore, we are unable to subscribe to the findings of the High Court when it states "the provision lays down the age of superannuation for a member prospectively which disqualifies a person from being appointed or being a member after he attains the age of 65 years" by itself it does not affect those who had been given appointment after having attained the age of 65 years. The Legislature was conscious of it, but thought of enacting a provision like Section 3 on that account.65. We are unable to see any warrant for holding that Section 5(6) as amended having regard to the use of language "or being" would any way exclude such of those members or even the Chairman who have attained the age of 65 years of age at the time of appointment. Accordingly, we conclude that Section 5(6) itself would be enough to hold that on the coming into force of the amending Act, namely, 13.7.90 the first respondent ceases to hold the office by the rigour of law, as rightly contended by Mr. Shanti Bhushan, learned counsel for thehas already been seen that Section 10 merely confers an enabling power to take punitive action. It is one thing the State has power to take punitive action, it is entirely different thing to say that in law the first respondent ceases to hold office on the incurring of the disqualification of attainment of 65 years of age. If Section 5(6) itself brings about a cessation of office, that sub-section being self-executory in nature, there is no need to provide for the same under Section 10 once over again. Merely because the parent Act (Central Legislation) provides for a disqualification on account of becoming a Member of Parliament, State Legislature or Local Board, that does not mean there must be a corresponding provision incorporating age as well under Section 10. We are unable to agree with Mr. Kapil Sibal. Equally, the contention that Section 5(6) only deals with initial appointment and would not cover a case of reappointment after attaining the age of 65 is wholly unacceptable to us. First of all, as we have stated earlier there is no question of any separate power for reappointment under Section 8 and the only power being traceable to Section 5 read with Section 14 and 16 of the General clauses Act.From this we are unable to see how any help could be derived by the first respondent to base his arguments that the power of reappointment is traceable to Section 8. This aspect of the matter had already been dealt with by us.71. The statement of `Objects and Reasons makes a reference to Section 8. But it does not again mean there is an independent power of appointment. What the above extract of counter-affidavit and reference to Section 8 mean is denial of malafide. Besides, hitherto no outer age limit has been prescribed for the post of Chairman. It is that which is sought to be prescribed now. The reference to Section 8 means only the "term" and nothing else.72. We are also unable to accept the arguments advanced on behalf of the first respondent that for a tenure post no period can be fixed. Instances are not wanting in this regard. Therefore, rightly reference is made by Mr. Shanti Bhushan to Article 224 of theOne thing that is significant is it contains a `non obstante clause. An appointment of a Member of the Board made prior to the commencement to this Act namely, 13.7.90 (giving retrospective operation) when gives a right to continue as a member after attaining the age of 65 years, that appointment is rendered void.Once it is so rendered void, the law deems that he has ceased to hold office of the Member of the Board. By a reading of the Section we are unable to conclude how Section 3(1) would fail to apply to a person who on the date of the commencement was already more than 65 years. This line of reasoning adopted by the High Court does not appeal to us. The Section nowhere makes a distinction between those who on the date of the enactment are "below" or "over" 65 years of age. Such a distinction is totallythat question is answered in the affirmative there is a cessation of office, in view of the terms of that Section. The contrary conclusion would lead to strange results. Those who are appointed prior to the Act and on the attainment of 65 years on 13.7.90, would vacate the office while a person already 65 on that date and after the passing of the Act notwithstanding the policy of prescribing the age of superannuation at 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 withthe only conclusion possible is, by reason of appointment if the incumbent is enabled to continue after attaining the age of 65 years such continuing is rendered void.79. No doubt as we have stated above, Section 5(6) as amended achieves this purpose. Yet if there is another Section which deals with the same it must be regarded as one introduced by way of abundant caution. In short, Section 3(1) is epexegesis.80. The arguments advanced by Mr. Kapil Sibal remind us of the eloquent words of Dr. Johnson "There is a wicked inclination in most people to suppose an old man decayed in his intellects. If a young or middle aged man, when leaving a company does not recollect where he laid his hat, it is nothing; but if the same in attention is discovered in an old man, people will shrug up their shoulders, and say, `His memory is going. 81. In our opinion such sentiments can be no answer against the operation of law.Thus, it will be clear that even legitimate expectation cannot preclude legislation.85. Where the right to continue in office has been put an end to by statute, even then it may be complained that the other rights like salary and perks would continue to be reserved and they could be claimed. To avoid that contention, Section 3(2) provides for compensation equivalent to the amount of salary and allowances for the unexpired term of office.86. Even assuming that the reasoning of the High Court is correct, in that, by the term of appointment he should have a right to continue after attaining the age of 65, when we look at the notification dated 12.6.89, that gives the first respondent a right to continue beyond the age of 65.From the proposition it is clear that there could a legislation relating to a single person. Assuming for a moment, that the Section 3 applies only to the first respondent even then, where it is avowed policy of the State to introduce an age of superannuation of 65 years of age, there is nothing wrong with the same.We are unable to agree with this argument. No doubt, in this case Lalit Narayan Mishra Institute alone was taken over by the Legislature. That was the only institution affected thereby. In spite of this the Court held this enactment is not violative of Article 14, since the institutions 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 in all these cases legislative intervention became necessary because there were some other reasons namely, mismanagement requiring taking over the banks and temples etc. and therefore, the single persons legislation was upheld is not tenable. We also hold that in order to justify a legislation of this character, no extraordinary situation need be disclosed. The contention that this is not in furtherance of the legislative object, cannot also be accepted because it has already been seen that the legislative object is to introduce an age of superannuation. Beyond this nothing more need be established by the State. The possibility of this legislation applying to one or more persons exists in principle. The fact that only one individual came to be affected cannot render the legislation arbitrary as violative of Article 14. This is because Section 3 is general in terms and the incidence of its applying to one individual does not render the legislation invalid.93. The theory advanced by the learned counsel for the first respondent that there must be mismanagement or some extraordinary situation to warrant a legislation of its character also does not seem to be correct as seen from The Atlas Cycle Industries Ltd., Sonepat v. Their Workmen, 1953(30 S.C.R. Suppl. 89 atThe attempt to distinguish this case that it was one wherein a benefit of extension was conferred and that a number of industrial adjudications were pending cannot be accepted.The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.I.R. 1979 Kerala 179. That case related to admission to medical college whereby invalidating the selection vitally affected those who had been selected already. Equally, the case Padmraj Samrendra and others v. State of Bihar and another, A.I.R. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection. The selectees were vitally affected. The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct.What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders." Therefore, we hold the failure to implead Chauhan does not affect the maintainability of the writ petition.103. One postscriptum needs to be added. It was argued on the basis of Pritam Singh v, The State, 1950 S.C.R. 435 that unless the court comes to the conclusion that the High Court is palpably wrong, it should not interfere. No doubt, the same principle is stated in Union of India v. M.P. Singh, 1990(2) SLR 3 (SC) that if substantial justice is done the interference under Article 136 is not warranted. We do not think this principle will have any application.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 respondents right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end.