# STATE OF HIMACHAL PRADESH AND ANR v. KAILASH CHAND MAHAJAN AND ORS - **Citation:** [1992] 1 S.C.R. 917 - **Court:** Supreme Court of India - **Decided:** 1992-02-20 - **Bench:** R. M. Saha!, S. Mohan - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-himachal-pradesh-and-anr-v-kailash-chand-mahajan-and-ors-11387 - **Pages:** 68 ## Headnote 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 Himacha' Pradesh Act JO of 1990f-''Sha/l be disqualified from bei11g appointed," "or being'~ea11ing of E/,ctricity (Supp(v) Act, ~948-Sections 5, 8 a11d sections 14 a11d 16 of A B c 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 ap pointnient. E/,,ctricity (Supply) Act, 1948-Section ](}--Whether punitive in nature-Re.1ppointment-Person removed whether eligible. 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 expectation-Legality of-Superannuation age-lntroduction--Object of Jnrerpretation of Stan ., • STATE v. K.C. MAH ## Text _Characters 0–39,968 of 151,475. This is a partial read: ask again with offset=39968 for what follows._ STATE OF HIMACHAL PRADESH AND ANR. v. KAILASH CHAND MAHAJAN AND ORS. FEBRUARY 20, 1992 [R. M. SAHA! AND S. MOHAN, JJ.] 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 Himacha' Pradesh Act JO of 1990f-''Sha/l be disqualified from bei11g appointed," "or being'~ea11ing of E/,ctricity (Supp(v) Act, ~948-Sections 5, 8 a11d sections 14 a11d 16 of A B c 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 ap pointnient. E/,,ctricity (Supply) Act, 1948-Section ](}--Whether punitive in nature-Re.1ppointment-Person removed whether eligible. 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 expectation-Legality of-Superannuation age-lntroduction--Object of Jnrerpretation of Stan ., • 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. 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 E 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 B c D E F G held out in the election meeting. 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 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 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 reputation in any manner, no injury was taken place so as to c9mplain of 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." 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 unconE 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 amendF 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 legislaG tion 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 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. c 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 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 appointed under.Section 8 constituted a class and if the appointment of the E 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 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 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 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- • 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 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 appelD 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) I I 924 A SUPREME COURT REPORTS [1992] 1 S.C.R. 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 fsuch 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 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 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.ointment 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 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] 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) F G H A B 926 SUPREME COURT REPORTS [1992] 1 S.C.R. 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) notC 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] E F G H 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 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 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] 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 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 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 B 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 conclusion 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 Chairman/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· B c [9848, DJ Francis Bennions Statutory Interpretation (1984 edn.) at page 237; Staie of West Bengal v. Union of India, [1964) I SCR 371, referred to. 7.01. There cauld 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 of65 years of age, there is nothing wrong with the same. [971CJ 7.02. The legislative object is to introduce an age of superannouation. 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- (- E F G H tion, how could that be called discriMination on unreasonable? The 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 Justice S.R. Tendo/kar & Others, (1959) SCR 279; Swastik Rubber Products Ltd. etc. etc. v. Municipal Corporation of the City of Poona & Anr., (1982) 1 SCR 729; Cltiranjit Lal Chowdhury 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 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 Narayan Mishra, Institute of Eonomic Development and Social f" 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. 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] 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 B c 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 ,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 F 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. B 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 -/; C appointed as a member of Himachal Pradesh State Electricity Board and D E F G . 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 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 :- 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 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, B 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 reads as under :- c "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 numE 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 Government of Himachal Pradesh. By Order . (B.C.Negi) G Chief Secretary to the Government of Himachal Pradesh. H A B c 932 SUPREME COURT REPORTS (1992] 1 S.C.R. 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 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 E pending, on 10.3.90, another notification was issued terminating the ap- (· pointment 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 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 notifications 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 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 Chairman, 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 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 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. B 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 A B c D E F G H 934 SUPREME COURT REPORTS [1992] 1 S.C.R. "AUTHQRITA TIVE ENGLISH TEST". ,S:: H.P.ORDINANCE No ......... of 1990. THE ELECTRICITY (SUPPLY) (HJMACHAL PRADESH AMENDMENT) ORDINANCE, 1990 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 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 (Supply) (Himachal Pradesh Amendment) Ordinance, 1990. {- 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. 3. (1) Notwithstanding anything to the contrary contained in any provisions of the Electricity (Supply) Act, 1948, rules, regulations or bye-laws made thereunder or in any judgment, decree or order of the Court, any appointment, made before the commencement of the Electricity (Supply) (Himachal Pradesh Amendment) Ordinance, 1990, whereby a person has .,,.,.-- STATE v. K.C.