| Headnote |
Constitution of India, 1950--Article 136-Appeal-Whether Supreme Court to decide a case on ethics-Retirement age of Chairman/Member ofElectricity Board Policy-Need for legislation-Whether the Court to interfere.Electricity (Supply) Act, I948 -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 fromholding 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-lntroduction--Object ofInterpretation 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 oneperson- 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 whowas appointed in the place of the writ-petitioner-Effect of 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 notifications dated 6.3.90 and 30.3.90.On 11.6.90, a show cause notice was issued to the respondent No.1 for having abused his position as Chairman of the Electricity Board and also ex-officio-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 5 years could be appointed and continued as Chairman or Member of H.P.State Electricity Board.On 9.7.90, the Government of lndia 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-live 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 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) (the 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 year 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."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 conjoinly 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 for retirement of the member 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 lie 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 affected 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 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 aqtomatic 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. |
