State of Himachal Pradesh & Anr Vs. Kailash Chand Mahajan & Ors [1992] INSC 58 (20 February 1992)
Mohan, S. (J) Mohan, S. (J) Sahai, R.M. (J)
CITATION: 1992 AIR 1277 1992 SCR (1) 917 1992 SCC Supl. (2) 351 JT 1992 (2) 144 1992 SCALE (1)454
ACT:
Constitution of India, 1950-Article 136-Appeal-Whether Supreme Court to decide a case on ethics-Retirement age of Chairman/Member of Electricity Board-Policy-Need for legislation-Whether the Court to interfere.
Electricity (Supply) Act, 1948-Section 5(6) (as amended by the Himachal Pradesh Act 10 of 1990)- "Shall be disqualified from being appointed," "or being"-Meaning of.
Electricity (Supply) Act, 1948-Sections 5,8 and sections 14 and 16 of the General Clauses Act-Period of appointment- Time to time extension-Whether amounts to re-appointment- Whether section 5 (6) deals only with initial appointment.
Electricity (Supply) Act, 1948-Section 10-Whether punitive in nature-Reappointment-Person removed whether eligible.
Electricity (Supply) Act, 1948-Section 5 (6)-(as amended by the Himachal Pradesh Act 10 of 1990)-Effect of amendment- Cessation from holding office of Chairman/Member of the Board on attaining the age of 65 years whether automatic- Right to continue in office-Legitimate expectation-Legality of-Superannuation age-Introduction-Object of.
Interpretation of Statutes-Object of legislation and legislative intention-Distinction of-`Object and Reasons' of a Bill-Importance of-The Himachal Pradesh Act, 10 of 1990- Sections 3,5-Object of.
Constitution of India, 1950-Article 14-Amending Act (the Himachal Pradesh Act 10 of 1990) introducing the age of superannuation affecting one person-Whether enactment ultra vires.
Constitution of India, 1950-Article 226-Writ petition challenging vires of the Himachal Pradesh Act 10 of 1990- Non-impletion of a person who was appointed in the place of the writ-petitioner-Effect of.
HEAD NOTE:
Respondent No. 1, on his retirement from the post of Chief Engineer from the State of Punjab was appointed as a Member of Himachal Pradesh State Electricity Board on 24.7.1981 and thereafter appointed as Chairman of the Board for a period of two years. On 13.8.82 by a notification the period was extended to five years, w.e.f. 25.7.1981. On 12.5.86, the term as Chairman was extended for another period of three years. There was a further extension on 12.6.89 for a period of 3 years. His appointment was to continue upto 25.7.92.
Respondent No. 3, the Chief Minister of Himachal Pradesh was alleged to have made speeches that should he come to power in the January 1990 elections he would have the respondent No. 1 removed from the Chairmanship of the Electricity Board.
On 5.3.90, the respondent No. 3 became the Chief Minister. A notification dated 6.3.90 was issued in supersession of the notification dated 12.6.89 that the appointment of the respondent No. 1 as Chairman of the Electricity Board was extended from 25.7.89 to 6.3.90.
Another notification dated 6.3.90 was issued directing that one Mr. Chauhan function as Chairman of the Electricity Board w.e.f. 7.3.90.
The respondent No. 1 preferred a writ petition challenging the validity of the notification dated 6.3.90.
While the writ petition was pending, on 30.3.90, another notification was issued terminating the appointment of the respondent No. 1 as Member of the Electricity Board.
On 30.3.90, the High Court while admitting the writ petition (CWP No. 123 of 1990) ordered that no appointment to the post of Chairman of the Electricity Board be made till further orders of the Court. When the matter was heard on 22.5.90, the Advocate General requested the Court that the judgment not to be pronounced since he desired to seek instructions from the Government to reconsider its notification dated 6.3.90. On 11.6.90, the Advocate General submitted to the Court that the notifications dated 6.3.90 and 30.3.90 would be withdrawn and an undertaking to that effect was given. Accordingly the writ petition was disposed of.
By notification dated 11.6.90, the Government withdrew its notification dated 6.3.90 and 30.3.90.
919 On 11.6.90, a show cause notice was issued to the respondent No. 1 for having abused his petition as Chairman of the Electricity Board and also ex-offcio Secretary, M.P.P. Power, asking him to submit his explanation within 21 days as to why action should not be taken under Section 10 of the Electricity (Supply) Act, 1949. He was also placed under suspension with immediate effect. Consequent upon the suspension of the respondent No.1, the notification dated 16th July, 1990 issued placing one Mr. R.S.S. Chauhan, Member (Operations) as the Chairman of the Electricity Board with immediate effect.
On 22.6.90, the Chief Secretary of the State Government requested the Secretary, Government of India, Ministry of Home Affairs to grant permission to promulgate Electricity (Supply H.P. Amendment) Ordinance, 1990, as no age limit was prescribed for holding office of the Member of the State Electricity Board, it was necessary to prescribe an upper age limit and it was proposed through the Ordinance that no person above the age of 65 years could be appointed and continued as Chairman or Member of H.P. State Electricity Board.
On 9.7.90, the Government of India pointed to the State Government that it was desirable for it to examine the matter with reference to the relevant provisions of the Act and the Constitution of India.
On 13.7.90, the Governor issued the H.P. Ordinance Rule of 2/90, amending Section 5 (6) of the Electricity (Supply) Act.
A notification was issued on 16.7.90, that as the respondent No.1, having already attained the age of more than sixty-five years, was ceased to be consequently Chairman of the Board.
Aggrieved by the Ordinance dated 13.7.90 and the notification dated 16.7.90, the respondent No.1 filed a writ petition (CWP No. 396 of 1990) to quash the same.
The respondent No. 1 urged before the High Court that there was a deliberate attempt on the part of the State to get rid of him through the Ordinance; that the Ordinance was violative of Articles 14 and 16 of the Constitution that as he was the only person affected by the Ordinance having crossed the age of 65, he was singled out for a total discriminatory treatment; that it was a colourable exercise of power; that while obtaining 920 the consent to promulgate the Ordinance, the fact of the pending writ petition, concerning the respondent No. 1, was not made known and there was a deliberate concealment of facts; and that in any event, the Chief Minister (who was the fourth respondent in the writ petition) was activated by malafides and he was determined to remove the respondent No. 1, as he held out in the election meeting.
The respondent No. 4 (in the writ petition) (Chief Minister) denied the allegations of malafides and urged that the Ordinance was issued since a policy decision was taken to introduce age of superannuation fixing the limit at 65.
During the pendency of the writ petition, the Ordinance was replaced by the Electricity (Supply) (Himachal Pradesh Amendment) Act, 1990 (H.P. Act 10 of 1990). Therefore, the writ petition was amended to challenge the validity of the amending Act.
The Division Bench quashing the notification dated 17.7.1990 held that the evidence furnished by the petition (respondent No. 1) in the form of newspaper reports would not be enough to hold that the Chief Minister had any personal bias; that the legislature as a body could not be accused of having passed a law for an extraneous purpose and therefore, no malafides could be attributed to the legislature; that by the Ordinance an age of superannuation was brought in, and as there was no such age prescribed by the Central Act, there was no repugnancy; that by mere curtailment of the term as Chairman of the Board without any mention about his inability or professional competence, so as to affect his reputation in any manner, no injury was taken place so as to complain of violation of Article 21 of the Constitution; that prescription of maximum age by the amending Act at 65 years could not be said to be arbitrary; that as the petitioner was appointed after he attained the age of 65 years, he would not be affected by Section 3(1); and that Mr. R.S.S. Chauhan was not a necessary party, as his appointment was only "until further orders." Against the decision of the High Court by special leave this appeal was filed by the State, contending that though the inapplicability of the Ordinance or Act was not raised, the High Court allowed the argument; that the Ordinance/Act was applicable to the respondent No. 1; that the reading of Sections 2 and 3 of the amending Act, both individually and 921 conjointly lead to the only conclusion that the Act disqualified every person from holding office who on the date of enactment namely, 13th July, 1990 was above 65 years; that the Act on its own terms made no distinction whatsoever between those persons who already attained the age of 65 years on the date of enactment or those who were less than 65 years; that the High Court was not right in introducing an artificial distinction; that Section 5(6) of the Act as amended would disqualify all persons who were at the time of the amendment 65 years or above; that the language was very wide in its comprehension; that there was no necessity to remove the respondent No. 1 by resorting to Section 10 because Section 5 (6) was self-executory; that by operation of law, the respondent No. 1 ceased to hold office on the date of coming into force of the amending Act;that public policy required to prescribe the age of 65 years retirement of the members of Electricity Board;that the High Court went wrong as though the appointment of the respondent No. 1 was not covered by Section 3(1) since the right to continue as Chairman was pursuant to an appointment after he had attained the age of 65 years; that factually it was incorrect because the appointment of the first respondent as Chairman was on 13.8.82 and the same appointment came to be extended from time to time and each of such extensions could not constitute a new appointment; that it was one appointment which was being continued from time to time;
that the reasoning of the High Court was wrong because it led to unconstitutionality, as the persons who attained the age of 65 years after the amending Act would be obliged to retire while the older persons like the respondent No. 1 would remain in office; that such situation would clearly amount to discrimination; that either by way of Section 5(6) of the Electricity (Supply) Act, as amended or under Section 3(1) of the amending Act, the respondent No. 1 would cease to hold office; that Section 3 was introduced only by way of abundant caution; that Section 3(1) contained a `non obstante' clause and it rendered any judgment, contract/ order or contrary to the sub-section would be void; that the legislature introduced the non-obstante clause to put the matter beyond doubt; that the legislation was general in its terms and its application and the fact that at the relevant time of the amending Act or even the Ordinance, the respondent No. 1 alone was no ground to hold that it was a single person's legislation; that no malafides could be attributed to the Legislature, an argument that the amendment has been passed only with a view to punish 922 the first respondent was not available to the respondent No. 1; that for the failure to implead Chauhan the writ petition was liable to be dismissed because if by reason of the decision of the court, Chauhan was ultimately affected, and if that decision was rendered without hearing Chauhan, it would amount to a clear violation of the principle of natural justice; that there was no need to dislodge Chauhan from Office as he was continuing so long; that this Court, by fixing the compensation, instead of relegating the matter to the State, may allow him to continue in the Office for the remaining period of tenure of the respondent No. 1.
The respondent No. 1 submitted that the State, while writing for sanction for issue of Ordinance though specifically mentioned about the respondent No. 1 by name, it concealed from Govt. of India the facts of the matter being sub judice; that the disqualification prescribed under Section 5 (6) of the amended Act was to prevent future appointments after attaining the age of 65 years; that there was no automatic cessation of office on attaining the age of 65 years; that by merely amending the law, it could not be urged that the respondent No. 1 having attained the age of 65 ceased to be a Member or Chairman of the Electricity Board; that Section 5 (6) would not help the appellant; that the respondent No.1 having been appointed under Section 8 constituted a class and if the appointment of the respondent No. 1 was sought to be brought out under Section 5 it would bring a discrimination treating unequals as equals and therefore, the law would have to be struck down as discriminatory; that the attaining of 65 years was not to be considered as disqualification as otherwise Section 10 would provide for such a situation; that Section 5(6) only deals with initial appointment and would not cover a case of reappointment after attaining the age of 65; that though the notifications dated 12.5.86 and 12.6.89, used the word "extension" it was nothing but reappointment; that by the enactment only the first respondent alone could be affected and, therefore, it was a single person's legislation being violative of Article 14 of the Constitution; and that where the respondent No. 1 would choose to question the vires of the Ordinance or the Act, there was no need to implead Chauhan at all, and the respondent No. 1 could not have asked for any relief against Chauhan and even otherwise, for an effective adjudication of the points in issue there was no need for the presence of Chauhan.
Allowing the appeal filed by the State, this Court, 923 HELD: 1.01. This Court cannot decide the case on ethics.
The Court is to judge the law and the correctness of the legal provisions as it sees. [947G]
1.02. It is not for this court to find out whether there was any need for such a legislation. Of course, for lack of legislative competence or for violation of the right to equality under Article 14 etc. the validity of the legislation may be scrutinised. But, certainly, that is far from saying the court could examine the legislation from the point of view that it came to be passed with malafide intention. By long established practice, which has received approbation through authorities of this Court, it has always refrained from attributing malafides to the legislature. In fact, such a thing is unknown to law. [950H-951B]
1.03. In this case the State wants to introduce the age of superannuation prescribing an upper age limit of 65 for the Member and chairman of the Electricity Board, as no such limit was found in the Electricity (Supply) Act, 1948.
Before the introduction of the amendment, the appellant wrote on 22.6.90 to the Government of India, Ministry of Home Affairs for procuring prior instructions from the President of India, as envisaged in clause (1) of Article 213 of the Constitution. [947H-948B]
1.04. The subject matter of the proposed Ordinance falls under item 38 of List III of the Seventh Schedule of the Constitution of India. Where, therefore, it was proposed to amend Section 5 of the Electricity Supply Act (Central Act), in its application to the State of Himachal Pradesh; it had to be reserved for the consideration of the President under Article 254 (2) of the Constitution. This was because if a Bill containing similar provision after having been passed by the State Legislature required to be so reserved for the consideration of the President of India. [948B-D]
1.05. Therefore, what does the State desire to do? It wants to embark on a policy of retirement of the Chairman/Members of the Electricity Board after attaining the age of 65 years. This Court is least concerned with the wisdom of the policy. Certainly, no one could quarrel with the introduction of that measure as of policy. [949D-E]
1.06. Where the State has taken a policy decision to prescribe an outer age limit for the Members or the Chairman of the Electricity Board it is perfectly legal. [963D] 924 K.Nagaraj & Others, etc. v. State of Andhra Pradesh & Anr. etc.etc., AIR 1985 SC 551, paras 7, 36, referred to.
Pritam Singh v. The State, [1950] SCR 453; Union of India v. M.P. Singh, [1990] Supp SCC 701, distinguished.
2.00 There is a disqualification for appointment in future when it says "shall be disqualified from being appointed". "Or being" means if such a disqualification is incurred after the appointment during the tenure of membership of the post. [952H-953A]
3.01. Section 8 of the Electricity(Supply) Act talks of term of office and conditions for reappointment. Those conditions may be as prescribed. Nowhere in this Section an additional power for appointment is conferred. At best it could be said that it merely lays down the eligibility for reappointment. That eligibility must be as per conditions prescribed under the rules. When it says "shall hold the office for such period" it means the period as prescribed under the rules. Beyond this, the Court is unable to persuade itself to come to the conclusion that there is any seperate power for reappointment. It is not even necessary to provide for such a seperate power. Sections 14 and 16 of Central General Clauses Act provide for such a power.
Section 16 deals with the power of appointment carrying with it the power of dismissal, while Section 14 states any power conferred unless a different intention appears could be exercised from time to time as occasion requires. Where, therefore, Section 5 provides for a power to appoint, certainly, that power could be exercised from time to time as occasion requires. Thus one need not search for a seperate provision in this regard. [953C-G]
3.02. Section 5(6) as amended having regard to the use of language "or being" would any way exclude such of those members or even the Chairman who have attained the age of 65 years of age at the time of appointment.[959E]
3.03. It is rather unfortunate that the High Court has missed the true import of the words "or being". This Court does not approve the findings of the High Court when it states, "the provision lays down the age of superannuation for a member prospectively which disqualifies a person from being appointed or being a member after he attains the age of 65 years," by itself it does not affect those who had been given appointment 925 after having the age of 65 years. The Legislature was conscious of it, but thought of enacting a provision like Section 3 on that account. [959C-D]
3.04. The contention that Section 5(6) only deals with initial appointment and would not cover a case of reappointment after attaining the age of 65 is wholly unacceptable. There is no question of any seperate power for reappointment under Section 8 and the only power being traceable to Section 5 read with Sections 14 and 16 of the General Clauses Act. [960B-C]
3.05. The original order of appointment of the first respondent was on 24.7.1981, first as a Member and as Chairman for a period of 2 years. The next comes the appointment dated 13.8.1982, when the first respondent came to be appointed as Chairman of Himachal Pradesh State Electricity Board. The notification reads "in continuation of this Department's notification of even number dated 12.5.1986, the Governor of Himachal Pradesh is pleased to extend the appointment". Therefore, where the original appointment dated 12.5.86 is extended from time to time, it is futile to contend that these are fresh appointments. [960D, 961D-E]
4. Section 10 confers an enabling power on the State Government to take punitive action against a member of the Board who falls under any one of the clauses (a) to (f). The fact that it is punitive is clear because sub-section (3) contemplates giving an opportunity to offer an explanation and thereafter removing him. Once so removed, he is ineligible for reappointment either as a Member or any other capacity in the Board. [955D-E]
5.01. The effect of amendment of Section 5 (6) is that it introduces a new disqualification "if he has attained the age of 65 years". This disqualification is not only for being appointed, namely, with reference to future appointment, but even with regard to a supervening disqualification covering cases of those who have attained the age of 65 years and being a member of the Board. [957G- 958A]
5.02. Once this disqualification of attaining the age of 65 years is incurred, there is an automatic cessation from holding office. This is because Section 5(6) contains the same phraseology as is found under Articles 102 and 191.
Section 5(6) applies to initial appointment as well as to those continuing in appointment. [956G-H] 926 5.0.3.Section 5(6) itself would be enough to hold that on the coming into force of the amending Act, namely, 13.7.90 the first respondent ceases to hold the office by the rigour of law. [959E-F]
5.04. The Act contains a `non-obstante' clause. An appointment of a Member of the Board made prior to the commencement to the Act, namely, 13.7.90 (giving retrospective operation) when gives a right to continue as a Member after attaining the age of 65 years, that appointment is rendered void. [963G]
5.05. This non-obstante clause is a sweep. It applies (1) notwithstanding anything to the contrary in any provisions of the Electricity (Supply) Act; (2) rules and regulations, bye-laws made therein; (3) any judgment, decree or order of the court; and (4) any contract. [963H]
5.06. Once it is so rendered void, the law deems that he has ceased to hold office of the Member of the Board. By a reading of the Section it can be seen that Section 3(1) would apply to a person who on the date of the commencement was already more than 65 years. [964A-B]
5.07. The Section nowhere makes a distinction between those on the date of the enactment are "below" or "over" 65 years of age. Such a distinction is totally unwarranted. The crucial question to be asked is whether the particular incumbent is continuing after the attainment of 65 years of age, if that question is answered in the affirmative there is a cessation of office, in view of the terms of that Section. The contrary conclusion would lead to strange results.
Those who are appointed prior to the Act and on the attainment of 65 years on 13.7.90, would vacate the office while a person already 65 on that date and after the passing of the Act notwithstanding the policy of prescribing the age of superannuation of 65 years would continue in the office.
The object of introducing an age of superannuation itself is to weed out the older elements and infuse fresh blood so that the administration could function with vigour. [964B-D] Pasupati Nath Sukul, Election Commission of India, State of U.P. v. Nem Chand Jain and others, [1984] 2 SCC 404; Election Commission, India v. Saka Venkata Subba Rao, [1953] SCR 1144 at page 1157; R. v. Ministry of Agriculture Fisheries and Food, ex parte Jaderow Ltd. and others, 1991 All England Law Reports 41, referred to. 927 Wade's Administrative Law (6th Edition), Page 520-21, referred to.
6.01. There is a great distinction between the legislative intention and the purpose or object of the legislation. While the object of legislation is to provide a remedy for the malady, on the contrary, the legislative intention relates to the meaning from the exposition of the remedy as enacted. For determining the purpose of object of legislation, indeed, it is permissible to look into the circumstances which were prevalent at that time when the law was enacted and which necessitated the passing of the enactment. For the limited purpose of appreciating the background and the antecedents factual matrix leading to the legislation it is open to the court to look into the statement of 'Objects and Reasons' of the Bill which accentuated the statement to provide a remedy for the then existing malady. [964G-965A]
6.02. The statement of Objects and Reasons' brings out the object of the desirability of introducing an age of superannuation as the same is entrenched in our administrative and constitutional systems. With this object in view, Section 3 intends that no one has a right to continue as a member of the Board after attaining the age of
65. Thus, the only conclusion possible is, by reason of appointment if the incumbent is enable to continue after attaining the age of 65 years such continuing is rendered void. [965B-D]
6.03. Section 5 (6) as amended achieves this purpose.
Yet if there is another Section which deals with the same it must be regarded as one introduced by way of abundant caution. In short, Section 3 (1) is epexegesis. [965D]
6.04. Where the right to continue in office has been put an end to by statute, even then it may be complained that the other rights like salary and perks would continue to be reserved and they could be claimed. To avoid that contention, Section 3(2) provides for compensation equivalent to the amount of salary and allowances for the unexpired term of office. [967G]
6.05. On 13.7.90 the first respondent's right to hold office as Chairman/Member of Himachal Pradesh Electricity Board came to an end. The State to pay the first respondent the salary, allowances and perks for the period commencing from 13.7.90 upto 25.7.92, had he continued in office 928 but for the impugned legislation. If any payment has been made by interim orders of the court that will go towards the deduction of this liability. [984B,D]
Francis Bennions Statutory Interpretation (1984 edn.) at page 237; State of West Bengal v. Union of India, [1964] 1 SCR 371, referred to.
7.01. There could be a legislation relating to a single person. Assuming for a moment, that the Section 3 applies only to the first respondent even then, where it is avowed policy of the State to introduce an age of superannuation of 65 years of age, there is nothing wrong with the same. [971C]
7.02. The legislative object is to introduce an age of superannnuation. Beyond this nothing more need be established by the State. The possibility of this legislation applying to one or more persons exists in principle. The fact that only one individual came to be affected cannot render the legislation arbitrary as violative of Article 14. This is because Section 3 is general in terms and the incidence of its applying to one individual does not render the legislation invalid. [975B-C]
7.03. If the State is well entitled to introduce an age of superannuation, how could that be called discrimination on unreasonable? The resultant conclusion is the amending Act, particularly, Section 3 is not, in any way, arbitrary and, therefore, not violative of Article 14. [982E]
Ram Prasad Narayan Sahi and Anr. v. The State of Bihar and others, [1953] SCR 1129; Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Others, [1959] SCR 279; Swastik Rubber Products Ltd. etc. etc. v. Municipal Corporation of the City of Poona & Anr., [1982] 1 SCR 729; Chiranjit Lal Chowdhury v. The Union of India and Ors., [1950] 1 SCR 869; Thakur Raghubir Singh and Ors. v. The State of Ajmer (Now Rajasthan) & Ors., [1959] SCR 478; Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Punjab and Ors., [1963] 2 SCR 353 at page 374; Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors., [1964] 1 SCR 561; S.P. Mittal etc. etc. v. Union of India & Ors., [1983] 1 SCR 729; State of Uttar Pradesh v. Lakshmi Ice Factory & Ors., [1962] Supp. 3 SCR 59; Lalit Narayan Mishra, Institute of Economic Development and Social 929 Change, Patna etc. v. State of Bihar & Ors. etc. [1988] 3 SCR 311; D.S. Reddy v. Chancellor, Osmania University & Ors., [1967] 2 SCR 214; The Atlas Cycle Industries Ltd., Sonepat v. Their Workmen, [1962] 3 SCR 89 at pages 103-4; Ameerunnissa Begum and Others v. Mahboob Begum and Others, [1953] SCR 404, referred to.
American Jurisprudence (2nd Ed.) Vol.63, Para 42, referred to.
8.01 The plea that the decision of the court in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct. [982H] 8.02. What was the first respondent seeking in the writ petition? He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan? None. The first point is Chauhan came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders", the failure to implead Chauhan does not affect the maintainability of the writ petition. [983D-E] B. Prabhakar Rao and Other v. State of Andhra Pradesh and Others, [1985] (Supp) SCC 432; A. Janardhana v. Union of India and Others, [1983] 3 SCC 601 at page 626; Pritam Singh v. The State, [1950] 1 SCR 453, referred to.
State of Kerala and Anr. v. Miss Rajia Rahim etc., AIR 1978 Kerala 176; Padmraj Samarendra and Others v. State of Bihar and Anr., AIR 1979 Patna 266; A.R. Antulay v. R.S. Nayak & Anr. [1988] Supp 1 SCR 1 at page 59, distinguished.
CIVIL APPELLATE JURISDICTIOIN : Civil Appeal No. 3062 of 1991.
From the judgment and Order dated 12.7.1991 of the Himachal Pradesh High Court in C.W.P. No. 396 of 1990.
Shanti Bhushan, Chabbil Das, Advocate General, A.M. Singhvi, E.C. Agrawala, Atul Sharma, A.V. Palli, Mrs. P. Bhatt and Ms. Reena Aggarwal 930 for the Appellants.
Kapil Sibal, Ranjit Kumar, Mrs. Rashmi Kathpalia, Yashana Adhyaru and Sudhir Walia for the Respondents.
The Judgment of the Court was delivered by MOHAN, J. The facts relating to the Civil Appeal are as under:- The first respondent (Mr. Kailash Chand Mahajan) retired from the post of Chief Engineer from the State of Punjab. On 24.7.81, he was appointed as a member of Himachal Pradesh State Electricity Board and thereafter appointed as Chairman of the said board for a period of two years. On 13.8.82, the following notification came to be issued:- No. 8-155/73-DP (Apptt. II) Dated Shimla- 2, the 13th Aug. 1982 NOTIFICATION In exercise of the powers conferred by Section 5 of the Electricity (Supply) Act, 1948, the Governor, Himachal Pradesh, is pleased to appoint Shri Kailash Chand, Retd.
Chief Engineer (Irrigation) Punjab, whose appointment as Member, H.P. State Electricity Board, has been notified vide Notification of even number, dated the 24th July, 1981, as Chairman, H.P. State Electricity Board for a period of five years, with effect from 25th July, 1981. Detailed terms and conditions of his appointment has already been issued separately.
This is in supersession of this deptt. Notification of even number, dated the 24th July, 1981.
By Order K.C. Pandeya Chief Secretary to the Government of Himachal Pradesh" On 12.5.86, the term as Chairman was extended for another period of three years in the following terms :- "No. 8-155/73 - DP (Apptt. II), dated Shimla 2, the 12th May, 1986.
931 Notification In continuation of this Department's Notification of even number, dated 13.8.1982, the Governor, Himachal Pradesh is pleased to extend the appointment of Shri Kailash Chand Mahajan as Chairman of the H.P. State Electricity Board for a further period of three years with effect from 25th July , 1986, on the existing terms and conditions of his appointment as Chairman.
By Order (P.K. Mattoo) Chief Secretary to the Government of Himachal Pradesh".
There was a further extension on 12.6.89 for a period of 3 years and that notification read as under :- "No. 8-155/73 -DP (Apptt. II) dated Shimla -2 the 12th June, 1989.
Notification In continuation of this Department's Notification of even number, dated 12th May, 1986, the Governor, Himachal Pradesh is pleased to extend the appointment of Sh. Kailash Chand Mahajan as Chairman of the H.P. State Electricity Board for a further period of three years with effect from 25th July, 1989, on the existing terms and conditions of his appointment as Chairman.
2. The Governor, Himachal Pradesh is further pleased to order that Shri Kailash Chand Mahajan, Chairman, H.P.
State Electricity Board shall also continue to function as Secretary (M.P.P. and Power) to the Government of Himachal Pradesh.
By Order (B.C. Negi) Chief Secretary to the Government of Himachal Pradesh.
932 Therefore, it is obvious that the appointment was to continue upto 25.7.92.
In January, 1990, elections to the Legislative Assembly of the State of Himachal Pradesh were scheduled to take place. The respondent in his affidavit would aver that the third respondent (i.e.. Mr. Shanta Kumar, the Chief Minister of Himachal Pradesh) is alleged to have made speeches that should he come to power he would have the first respondent removed from the chairmanship of the Electricity Board. On 5.3.90, the third respondent became the Chief Minister. A notification dated 6.3.90, came to be issued in supersession of the notification dated 12.6.89 that the appointment of the first respondent as Chairman of the Himachal Pradesh State Electricity Board is extended from 25.7.89 to 6.3.90.
Another notification dated 6.3.90 was issued directing that Mr. R.S.S. Chauhan shall function as Chairman, H.P. State Electricity Board w.e.f. 7.3.90. At this stage the first respondent preferred a Writ Petition No. 123/90 challenging the validity of the notification dated 6.3.90, and prayed for certiorari to quash the same. While that writ petition was pending, on 30.3.90, another notification was issued terminating the appointment of the first respondent as Member of the State Electricity Board.
On 30.3.90, the High Court while admitting the writ petition (CWP No. 123 of 1990) ordered that no appointment to the post of Chairman of the State Electricity Board will be made till further orders of the Court. The matter was heard on 22.5.90. The learned Advocate General on conclusion of his argument requested the court that th judgment may not be pronounced since he desired to seek instructions from the Government to reconsider the impugned order in CWP No. 123 of 1990. On 11.6.90, the learned Advocate General submitted to the court that both the notification dated 6.3.90 and 30.3.90 would be withdrawn.
An undertaking to that effect was given. Accordingly the writ petition was disposed of. Consequent to this undertaking, by notification dated 11.6.90, the Government of Himachal Pradesh withdrew both the notifications dated 6.3.90 and 30.3.90. However, the matter did not rest there.
On 11.6.90, a show cause notice was issued to the first respondent for having abused his position as Chairman, H.P. State Electricity Board and also ex-offico Secretary, M.P.P. & Power. He was also asked to submit his explanation within 21 days as to why action should not be taken under Section 10 of the Electricity (Supply) 933 Act, 1948. Simultaneously, it was also ordered that the shall be placed under suspension with immediate effect by virtue of power under Section 10 of the said Act.
Consequent upon the suspension of the first respondent, the notification dated 16th July, 1990 came to be issued placing Mr. R.S.S. Chauhan, Member (Operations), HP State Electricity Board as Chairman with immediate effect until further orders.
Being aggrieved by the above show cause notice and the order of suspension, the first respondent filed CWP 303 of 1990 on 12.6.90. The High Court while admitting the writ petition granted interim stay of the order of suspension.
On 22.6.90, the Chief Secretary of the Govt. of Himachal Pradesh wrote to the Secretary, Government of India, Ministry of Home Affairs, New Delhi requesting for permission to promulgate Electricity (Supply H.P. Amendment) Ordinance, 1990. It was stated in the letter that at present no age limit has been prescribed for holding office of the Member of the State Electricity Board, it was necessary to prescrible an upper age limit. The concept of terminal appointment at which a person should cease to hold judicial offices and civil posts is entrenched in administrative and constitutional system. Therefore, it was proposed through the ordinance that no person above the age of 65 years could be appointed and continued as Chairman or Member of H.P. State Electricity Board. This provision was not only to apply to future appointments, but also to the existing Chairman and Members, and where the existing incumbent's tenure is curtailed adequate compensation could be provided. No doubt, rules could be framed under Section 78 of the Electricity (Supply) Act, 1948. But those rules cannot have retrospective operations, hence the proposed ordinance.
On 9.7.90, the Government of India replied pointing out the desirability of the State Government examining with reference to the relevant provisions of the Act and the constitution about the promulgating the ordinance. This State was also advised to explore the feasibility of amending the rules.
On 13.7.90, the Governor of Himachal Pradesh issued an ordinance, i.e. H.P. Ordinance Rule of 2/90, amending Section 5 (6) of the Electricity (Supply) Act. The ordinance reads to the following effect :_ 934 "AUTHORITATIVE ENGLISH TEST".
H.P. ORDINANCE No of 1990.
THE ELECTRICITY (SUPPLY) (HIMACHAL PRADESH AMENDMENT) ORDINANCE, 1990 Promulgated by the Governor of Himachal Pradesh in the Forty-first year of the Republic of India.
An Ordinance to amend the Electricity (Supply) Act, 1948 (Central Act No. 54 of 1948) in its application of the State of Himachal Pradesh.
Whereas the Legislative Assembly of the State of Himachal Pradesh is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;
And whereas instructions from the President of India to promulgate the Ordinance have been obtained;
Now, therefore, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor of Himachal Pradesh is pleased to promulgate the following Ordinance :-
1. This Ordinance may be called the Electricity (Suppy) (Himachal Pradesh Amendment) Ordinanc,1990.
2. In Sub-section (6) of section 5 of the Electricity (Supply) Act, 1948, for the words "if he is a member of parliament", the words "if he has attained the age of 65 years or is a member of Parliament" shall be substituted.
3. (1) Notwithstanding anything to the contrary contained in any provisions of the Electricity (Supply) Act, 1948, rules, regulations or bye-laws made there under or in any judgment, decree or order of the Court, any appointment, made before the commencement of the Electricity (Supply) (Himachal Pradesh Amendment) Ordinance, 1990, whereby a person has 935 a right to continue as a member of the Board after attaining the age of 65 years, shall be void; and on such commencement he shall be deemed to have ceased to hold office of the Member of the Board.
(2) On ceasing to hold office of the member of the Board under sub-section (1), such member shall be entitled to a compensation as may be determined by the State Government; but such compensation shall not exceed the amount equivalent to the amount of salary and allowances payable to him for his unexpired term.
B. Rachaiah Governor Shimla The ...... 1990." As a sequel to the issue of this ordinance, the following notification was issued on 16.7.90 :- "Government of Himachal Pradesh Department of Personnel (AP - II) No. 8-155/71 -DP (Apptt. II) Dated, Shimla -2, the 16th July, 1990.
NOTIFICATION
Whereas as a result of promulgation of the Electricity (Supply) (Himachal Pradesh Amendment) Ordinance 1990, vide Notification No. LLR-D (6) 8/90- Legislation dated 13th July, 1990, published in the Rajpatra dated 13th July, 1990, Shri Kaialsh Chand Mahajan, Chairman, H.P. State Electricity Board, having already attained the age of more than sixty-five, years, has ceased to be Member of the H.P. State Electricity Board and consequently Chairman of the said Board.
NOW, THEREFORE, in exercise of the powers vested in him under sub-section (5) of section 5 of the Electricity (Supply) Act, 1948, the Governor, Himachal Pradesh, is pleased to appoint Shri R.S.S. Chauhan, Member (Operation), H.P. State Electricity Board as Chairman of the HP 936 State Electricity Board with immediate effect, till further orders.
By Order M.S. Mukherjee Chief Secretary to the Govt. of Himachal Pradesh.
Aggrieved by the ordinance dated 13.7.90 and the above notification dated 16.7.90, the first respondent filed CWP No. 396 of 1990, praying for certiorari to quash the ordinance as well as the notifications.
Inter alia, the first respondent as writ petitioner before the High Court urged that there has been a deliberate attempt on the part of the State to get rid of him through the ordinance. The same is violative of Articles 14 and 16 Constitution. In so far as he is the only person affected by the ordinance having crossed the age of 65, he had been singled out for a total discriminatory treatment. It is a colourable exercise of power. While obtaining the consent of the President of India with regard to a subject falling under the Concurrent List, it was not even let known that a writ petition was actually pending concerning the petitioner. There had been a deliberate concealment of facts. In any event, the Chief Minister (who was the fourth respondent) was activated by malafides. He was determined to remove the writ petitioner, as he held out in the election meeting.
The State filed a detailed counter affidavit. The court respondent (the Chief Minister) specifically denied the allegations of malafides and urged that the ordinance came to be issued since a policy decision had been taken to introduce age of superannuation fixing the limit at 65.
During the pendency of the writ petition, the ordinance came to be replaced by the Electricity (Supply) (Himachal Pradesh Amendment) Act, 1990 (H.P. Act of 10 of 1990). Therefore, an application for amendment was taken out challenging the validity of the amending act. Before the High Court, the following points were urged :- (i) malafides - (a) against the Chief Minister; and 937 (b) against the legislature.
(ii) the act was unconstitutional and arbitrary.
In that it had been passed to get rid of the petitioner, though a single person legislation was permissible in law, yet where the discrimination of the petitioner was wholly unjustified such a legislation would be bad in law.
(iii) The enactment was void as violative of Article 254.
(iv) It was also violative of Article 21 as it damaged the reputation of the writ petitioner therein.
(v) Section 3(1) of the Ordinance/Act renders a judgment of the court void and was unconstitutional as being excessive legislative powers in so far as it impinges upon the judicial field.
(vi) Inasmuch as the right of the petitioner to continue as a Member/Chairman of the Board had been taken away, it is violative of Article 19. The compensation provided under section 3(2) is vague and illusory.
(vii) Section 3(1) does not apply to the petitioner at all.
The Division Bench held that the evidence furnished by the petitioner in the form of newspaper reports would not be enough to hold that the Chief MInister had any personal bias. The legislature as a body cannot be accused of having passed a law for an extraneous purpose. Therefore, no malafides could be attributed to the legislature.
Dealing with the repugnancy it was held that by the impugned ordinance of the Electricity (Supply) Act, an age of superannuation has been brought in. There was no such age prescribed by the Central Act. Therefore, there was no repugnancy.
By mere curtailment of the term as Chairman of the Board without any mention about his inability or professional competence, so as to affect his reputation in any manner, no injury had taken place so as to complain of violation of Article 21 of the Constitution. The plea of interference with judicial power was negatived. The plea of violation of Article 19 that the provision of compensation is illusory was negatived.
938 On an elaborate consideration of violation of Article 14, the court after referring to the leading decisions of this court concluded that prescription of maximum age by the amending act at 65 years cannot be said to be arbitrary or irrational. Moreover public interest demands that there ought to be an age of retirement in public services.
On the ancillary question whether the legislation had been enacted only with a view to get rid off the petitioner and whether it would be bad as a single person's legislation, it was held that there was nothing illegal about it. In relation to applicability of Section 3(1) of the amending act to the petitioner, the High Court construed that Section 3(1) will apply only to an appointment where a person has a right to continue after the attainment of 65 years. If, therefore, the petitioner had been appointed after he had attained the age of 65 years, he would not be affected by Section 3(1). Any contrary inference would not be justified by its language. It was also held that when Section 5(6) precluded the petitioner from "being a member" of the Board after he had attained 65 years of age, would not help the State as it would apply only prospectively. We may also refer to that particular argument advanced on behalf of the State that Mr. R.S.S. Chauhan having been appointed as Chairman, he ought to have been impleaded as a party. The court rejected the plea not only on the ground that he was not a necessary party, but also on the ground that his appointment was only "until further orders." In the result, the notification dated July, 17 1990 was quashed. It is under these circumstances, Special Leave Petition was preferred to the court. By an order dated 5th August, 1991, special leave was granted. Hence, this Civil Appeal.
Mr. Shanti Bhushan, learned counsel appearing for th State of Himachal Pradesh after taking us through the orders of appointment and the extensions would urge that though the inapplicability of the Ordinance or Acts was not raised, the High Court had allowed the argument. In other words, it was never urged that the Ordinance/Act was not applicable to the first respondent. A bare reading of Section 2 which amended Section 5 (6) of the Electricity (Supply) Act and Section 3 of the amending act, both individually and conjoinly lead to the only conclusion that the Act disqualifies every person from holding office who on the date of enactment, namely, 13th July, 1990 is above 65 years.
939 The Act on its own terms makes no distinction whatsoever between those persons who have already attained the age of 65 years on the date of enactment or those who are less than 65 years. Therefore, the High Court was not right in introducing an artificial distinction. For the purpose of his argument he would submit that Section 5(6) as amended, would disqualify all persons who are at the time of the amendment 65 years or above. The language is very wide in its comprehension. When it says "or being", this corresponds to Article 102 of the Constitution as well as Article 191, this provision being made applicable either to the Members of Parliament or to the legislative body of the State respectively. It has been held in Pasupati Nath Sukul, Election Commission of India, State of U.P. v. Nem Chand Jain and Others, [1984] 2 S.C.C., 404 that on the incurring of the qualification he ceases to be a member thereof. Therefore, there is a automatic cessation of the right to hold office,that is the purpose of "or being'.
These is no necessity to remove the first respondent, by resorting to Section 10 because Section 5 (6) is self- executory. Therefore, by operation of law, the first respondent ceases to hold office on the date of coming into force of the amending Act.
In Election Commission, India v. Saka Venkata Subba Rao, [1953] S.C.R. 1144, it has been held on similar language occurring in the Constitution that it postulates both existing and supervening disqualification. If it is the avowed policy of the State to prescribe an age of superannuation, certainly nobody could have a legitimate complaint. In fact, there are identical State legislative enactments in Andhra Pradesh and Uttar Pradesh specifying an age of superannnuation. This court upheld such a prescription in several cases. Hence, the first respondent cannot complain that he could continue indefinitely and others be retired at the age of 65.
Section 3 of the amending Act was given retrospective effect from 13.7.90. This Section presupposes an appointment prior to amendment, namely, prior to 13.7.90.
In this case, the appointment gives a right to continue after attaining the age of 65 years. If, therefore, the two tests are answered, the appointment is rendered void irrespective of the fact when the appointment tool place.
The "Objects & Reasons" of the Act put the matter beyond doubt. In our country, the concept of age of superannuation is entrenched both in administrative as well as constitutional systems. Public policy requires to prescribe the age of 65 years for retirement of the members of Electricity Board as in the case of High Court Judges, mem- 940 bers of tribunal and other high functionaries.
The High Court had gone wrong as though the appointment of the first respondent was not covered by Section 3(1) since the right to continue as Chairman was pursuant to an appointment after he had attained the age of 65 years.
Factually this is incorrect because the appointment of the first respondent as Chairman was on 13.8.82. Thereafter the same appointment came to be extended from time to time.
Each of those extensions cannot constitute a new appointment. It is one appointment which is being continued from time to time. Legally speaking, also, the reasoning of the High Court is wrong because it leads to unconstitutionality. In that case persons who attained the age of 65 years after the amending Act would be obliged to retire while the older persons like the first respondent would remain in office. This will clearly amount to discrimination. Thus either by way of Section 5(6) of the Electricity (Supply) Act, as amended or under Section 3(1) of the amending Act, the first respondent would cease to hold office. As a matter of fact, Section 3 has been introduced only by way of abundant caution. It is also to be noted that Section 3(1) contains a `non obstante' clause and it renders any judgment contract/order or contrary to this Sub-section void. The legislature has introduced the non obstante clause to put the matter beyond doubt.
This legislation is general in its terms and it application. The fact that at the relevant time of the amending Act or even the ordinance, the first respondent alone was affected is no ground to hold that it is a single person's legislation. This court, as a matter of fact, has upheld such pieces of legislation in Chiranjit Lal chowdhury v. The Union of India and Ors., [1950] S.C.R. 869, (particularly the passages occurring at pages 878-79). On the basis of its ruling it is submitted that even if it is held a single person's legislation, if he constitutes a class by himself, such a legislation would be valid. The same principle is stated in Thakur Raghubir Singh and Ors. v. The State of Ajmer (Now Rajasthan) & Ors., [1959] S.C.R. 478. Again in Lachhman Das on behalf of firm Tilak Ram Ram Bux v. State of Punjab and Ors., [1963] 2 S.C.R. 353 @ 374, it has been held that a law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it.
In Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors., [1964] 1 S.C.R. 561 where a legislation was confined only to one of the temples, it was held not to be in violation of Article 14 of the Constitution. To the similar effect are S.P. Mittal etc. etc. 941 v. Union of India & Ors., [1983] 1 S.C.R. 729 and in State of Uttar Pradesh v. Lakshmi Ice Factory & Ors., [1962] Supp. 3 S.C.R. 59.
Again, in Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna etc. v. State of Bihar & Ors. etc., [1988] 3 S.C.R. 311, even though the Act was general in terms and applied to only one of the institutions at the relevant time, having regard to the policy of nationalisation, it was upheld.
The case of D.S. Reddy v. Chancellor, Osmania University & Ors., [1967] 2 S.C.R. 214, has no application to the facts of the case because though the Act was general in its application, yet, it applied to only one individual who was when occupying the post of Vice Chancellor of Osmania University. Thus, it is submitted as read from the statement of `Objects and Reasons' of the amending Act, if the policy to superannuate at the age of 65 is in order to give full effect to the policy, provision will have to be made for those who have attained the age of 65 also. This is what Section 3(1) aims at.
Looking it form that point of view this is a legislation which applies to all. The chance that the first respondent was affected at the relevant time by introduction of this legislation will not in any manner render it violative of Article 14 on the ground that it is a single person's legislation.
If the law is settled that no malafides could be attributed to the Legislature, an argument that the amendment has been passed only with a view to punish the first respondent is not available to the first respondent.
The next submission of the learned counsel is that in the place of first respondent, Chauhan had come to be appointed as Chairman, therefore, he ought to have been impleaded as a party. The effect of non-impleading Chauhan will be fatal to the writ petition as laid down in State of Kerala and another v. Miss Rafia Rahim etc., A.I.R. 1978 (Kerala), 176 as well as Padmraj Samarendra and others v. State of Bihar and Anr., A.I.R. 1979 (Patna) 266. In both the cases where the petitioners were challenging the selection, it was held the selectees were necessary parties as they were affected by the decisions of the court. Therefore, if they are not impleaded no relief could be granted in favour of the writ petitioners even though on merits the petitioners could succeed.
Even otherwise, today, the principle of natural justice has assumed great importance. It by reason of the decision of the court Chauhan is ultimately affected, and if that decision is rendered without hearing 942 Chauhan, it would amount to a clear violation of the principle of natural justice. An order passed in violation of that salutory provision of natural justice would be a nullity. As a matter of fact, if Supreme Court passes an order that would amount to nullity is what this court has laid down in. In A.R. Antulay v. R.S. Nayak & Anr, [1988] Supp 1 SCR 1 @ 59. Therefore, for the failure to implead Chauhan the writ petition was liable to be dismissed. The contrary view taken by the High Court that though he is a proper party but not a necessary party, or that Chauhan came to be appointed "until further orders" and, therefore, he need not be impleaded, is wrong.
Mr. Kapil Sibal took us through the background in which the impungned ordinance and th Act came to be passed. He would submit that it had a great bearing on the legal issues involved in this case. The State of Himachal Pradesh tried its level best to get rid of the Service of the first respondent. At first it issued a notification whereby the right to continue as Chairman was interfered with. That was questioned in W.P. 123/90. Finding the judgment was going against the State, the State withdrew the notifications.
Thereafter, the State came forward with charge memo under suspension order. They are pending in writ proceedings and an interim stay of suspension is in operation. At this stage, the ordinance is brought in because the executive method failed to bring about the termination of his services. At the relevant date of the ordinance no person other than the first respondent was affected. In fact, the State while writing for sanction for issue of ordinance specifically mentions about this respondent by name. But at the same time it would conceal from Govt. of India the fact of the matter being sub judice. Though the Govt. of India would request exploration of the possibility of amending the rules under Section 78 of the Electricity (Supply) Act because the rule could not have restrospective operation and the first respondent could not be reached by such an amendmentof the rules resort is had to the ordinance making power under Article 213 of the Constitution.
Section 3(1) was aimed at only against this respondent.
This is undeniable. While the ordinance was under challenge in writ petition before the High Court the amending Act came to be passed. This back-ground has to be kept in mind to appreciate the submissions made on behalf of this respondent.
943 Under the Electricity (Supply) Act, there are two provisions dealing with the appointments. One Section 5 and the other is Section 8. The former Section deals with initial appointment whilst Section 8 deals with reappointment.
What the amending Act does by prescribing the disqualification under Section 5(6) is to prevent future appointments after attaining the age of 65 years. But, even, here, there is no automatic cessation of office on attaining the age of 65 years. While there is a power for removal when a Member or Chairman of the Electricity Board becomes a Member of Parliament, he could be removed under Section 10, there is no such power in the event of the Member or Chairman incurring the disqualification of age, namely, the attainment of 65 years. Hence by merely amending the law, it cannot be urged that the first respondent having attained the age of 65 ceases to be a Member or Chairman of the Electricity Board. Therefore, Section 5(6) will not help the appellant.
Coming to Section 8 that deals with reappointment.
Such a reappointment is governed by the terms and conditions as prescribed. The word "prescribed" means prescribed under the rules. The rule making power is contained under Section 78(2) (a). Rule 4 as originally stood governed the reappointment stating it could be under such conditions as the State Govt. may from time to time, by order, direct.
There is a proposal to amend the rule. Even under those rules namely Rules 3 and 4, the reappointment is thought of.
While care has been taken in this regard no amendment has been effected to Section 8 prescribing the age limit of 65.
As a matter of fact, for a tenure appointment under Section 8, there never be a prescription of age of superannuation.
Such an appointment is beyond the pale of Section 5. Thus, it is submitted Sections 5,8,10,78 (2) (a) provide a scheme more so when Section 10 does not prescribe the age as a disqualification.
In no statute an upper age limit could ever be a disqualification, of course, the minimum age of recruitment can be prescribed. But no an upper age limit for a tenure appointment. It is common knowledge that only experienced persons even after retirement are appointed as Chairman, having regard to the vast experience and wide knowledge.
On the factual aspect, it is submitted by the learned counsel, though the notifications dated 12.5.86 and 12.6.89, use the word "extension" it is 944 nothing but reappointment. As a matter of fact the counter affidavit of the State makes it clear that the order of reappointment came to be passed under Section 5 read with Section 8 rule 4. The statement of `Objects and Reasons' also makes a reference to Section 8. Thus, both legally and factually Section 5(6) cannot help the State.
Much cannot be made of the words "or begin" brought in by way of amendment of Section 5(6). This only connotes the attainment of age of 65 subsequent to the appointment.
When the Constitution uses similar language both under Articles 102 and 191, it made it clear that under both the Articles 101 as well as 190, the seat falling vacant retrospectively on the incurring of such a disqualification there is no automatic cessation provided under Section 10.
Thus the words "has attained" occurring under Section 5(6) assumes great importance because there is no provision under Section 10 prescribing age of disqualification and the consequent removal. Even under Section 5(6), it supposes a person being appointed before the age of 65 and attaining the age of 65. Such a contingency does not arise here.
Therefore, it is submitted that Sections 5(6) and 3(1) of the amending Act should be rad together. As regards the amending Act, it cannot be denied that on the date of ordinance it applied only to the respondent and nobody else.
While Section 5(6) takes care of future appointment Section 3(1) deals with reappointment. On the date of ordinance Section 5(6) would apply to nobody else because this respondent alone was holding a tenure appointment. The legislation was brought about only with a view to unseat the respondent. There can be a single persons legislation provided it is in furtherance of legislative objects. The burden is on the State to prove the reason or the basis for this legislation. Such a burden had not been discharged.
Certainly, the reappointment stand apart. They constitute a class by themselves. A person initially appointed cannot be compared with a reappointee. The former falling under Section 5(6) and the latter falling under Section 8. If the respondent had been appointed after the age of 65, he forms a class by himself. Therefore, the State will have to be sore what exactly is the public purpose served or a social or economic obligation. Further, as a matter of fact, this was the test applied in all single person's legislation. In all such cases whenever it was upheld either it was on the ground of mismanagement of the institution or a mill, or because it was i
