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

r A conditions of service."

• One thing that is striking is rules may themselves provide for eligibility for reappointment. In this connection it may not be out of context to refer to the letter of the Ministry of Home Affairs asking the State to explore the possibility of making rules instead of amending the B Act. This was at a time when the State Government sought the assent of the President. Where, therefore, rules could provide for the conditions for eligibility for reappointment, equally it should follow by amending the Act such eligibility for reappointment can be provided. In the conspectus of this Section it would be thus clear- (1) there is only one source of power c of appointment contained under Section 5; (2) there is no separate power in relation to ·reappointment under Section 8; (3) Section 10 is only an enabling power for taking punitive action against such of those members who fall under clauses (a) to (f) of the said Section and (4) Section 78(2) (a) confers a power upon the State Government to frame rules. D The effect of Amendment under Section 5(6) of the said Act

With this we pass on to the amending section of 5( 6), by Act 10 of {

1990. The amendment was carried out to section 5(6) is as follows. This can be brought out succinctly by a tabulated statement :- . E STATEMENT OF PROVISIONS LIKELY TO BE AFFECTED BY THE AMENDMENT BILL Section Provisions as exist Provisions as will stand after the enactment of the Bill F (1) (2) (3)

5Copy pinpoint5. Constitution and Composition of 5. Constitution and Composition of State Electricity Board- State Electricity Board- (1) The State Govt. shall, as soon (1) The State Govt. shall, as soon as may be after the issue of the as may be after the issue of the G notification under sub-section (4) notification under sub-section ( 4) of sec. I, constitute by of sec. I, constitute by notification in the Official notification in the Official Gazette a State Electricity Board Gazette a State Electricity Board under sub name as shall be under sub name as shall be specified in the notification. specified in the notification. H

STATE.-. K.C. MAHAfAN [MOHAN, J.] 957

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

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

958 SUPREME COURT REPORTS (1992( 1 S.C.R.

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

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

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

STATE"· K.C. M~llAIAN !MOHAN. .I.I 959

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

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

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

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

960 SUPREME COURT REPORTS (1992] 1 S.C.R.

A there is no need to provide for the san1-;,' under Section 10 once over again. Merely because the parent Act (Central Legislation) provides for a dis- qualification on account of becoming a Member of Parliament, State Legislature or Local Board, that does not mean there must be a cor- responding provision incorporating age as well under Section 10. We are unable to agree with Mr. Kapil Sibal. Equally, the contention that Section B 5(6} only deals with initial appointment and would not cover a case of reappointment after attaining the age of 65 is wholly unacceptable to us. First of all, as we have stated earlier there is no question of any separate power for reappointment under Section 8 and the only power being trace- able to Section 5 read with Sections 14 and 16 of the General Clauses Act. c Factually we will now consider whether this is a case of reappoint- ment at all. The original order of appointment of the first respondent was on 24.7.1981, first as a Member and as Chairman for a period of 2 years. These two orders of appointment do not concern very much. D The next comes the appointment dated 13.8.1982, when the first respondent came to be appointed as Chairman of Himachal Pradesh State Electricity Board. Though during the narration of facts we have referred to this order, it is worthwhile to quote it once over again in full as something material turns on this. E "GOVERNMENT OF HIMACHAL PRADESH DEPARTMENT OF PERSONNEL-II

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

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

STATE v. K.C. MAHAJAN [MOHAN, J.] 961

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

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

As seen from the above, the number of the order is 8-155173-DP (Apptt-II). The next order of extension bears the same number dated 12.5.86. That also clearly states "in continuation of this Department's C · notification of even number dated 13.8.82, the Governor of Himachal Pradesh is pleased to extend the appointment" This extension is for a period of three years. Then comes the last extension on 12.6.89 which also bears the number 8/155173 - DP (Apptt-II). Again, the notification reads "in continuation of this Department's notification of even number dated 12.5.1986, the Governor of Himachal Pradesh is pleased to extend the D appointment." Therefore, where the original appointment dated 12.5.86 is extended from time to time, it is futile to contend that these are fr.,,;h appointments. While we are on this we have also got to refer to the counter affidavit of the State filed in the writ petition before the High Court. In para 12 it is stated as follows :- E

"The contents of para 12 of the petition, as stated, are wrong and hence denied. It is emphatically denied that the power was exercised malafide and was colourable exercise of power or was a fraud on power. The power has been exercised within the legal ambit of Section 5 read with Section 8 of the Act and F - '1' the rules framed thereunder."

From this we are unable to see how any help could be derived by the first respondent to base his arguments that the power of reappointment is traceable to Section 8. This aspect of the matter had already been dealt , w~~~ G The statement of 'Objects and Reasons' makes a reference to Section

8. But it does not again mean there is an independent power of appoint- ment What the above extract of counter affidavit and reference to Section 8 mean is denial of malafide. Besides, hithe.rto no outer age limit has been H

%2 SUPREMF COURT REPORTS (1992[ 1 S.C.R.

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

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

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

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

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

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

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

H (a) in the case of the Chairman or Vice-Chairman, the age

STATE v. K.C. MAHAJAN (MOHAN, J.J 963

of sixty five years, and A (b) in the case of any other Member, the age of sixty-two years".

Therefore, where the State has taken a policy decision to prescribe an outer age limit for the Members or the Chairman of the Electricity Board it is perfectly legal. B 771c scope of Section 3 of Electricity (Supp(v ), (H.P.Amendme111) Act, 1990 and ivhcther it is bad as si11g/e person's legislation. >- Section 3 of the Amendment Act reads as follows :- c "3. (I) Notwithstanding anything to the contrary contained in any provisions of the Electricity (Supply) Act. 1948, rules, regulations or bye-laws made thereunder or in any .iudgment. decree or order of the court or in any contract, any appoint- ment made before the commencement of the Electricity (Supp- D ly) (Himachal Pradesh Amendment) Act, 1990, wherehy a person has a right to continue as a member of the Board after ,, > attaining the age of 65 years, shall he void; and on such commencement he shall be deemed to have ceased to hold office of the member of the Board. E (2) On ceasing to hold office of the member of the Board under sub-section (1} such member shall be entitled to com- pensation as may he determined by the State Goverment; but such compensation shall not exceed the amount equivalent to the amount of salary and allowances payable to him for -his unexpired term". F

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

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

964 SUPREME COURT REPORTS (1992) 1 S.C.R.

A Once it is so rendered void, the Jaw deems that he has ceased to hold office of the Member of the Board. By a reading of the Section we are unable to conclude how Section 3(1) would fail to apply to a person who on the date of the commencement was already more than 65 years. This line of reasoning adopted by the High Court does not appeal to us. The Section nowhere makes a distinction between those on the date of the B enactment are "below" or "over" 65 years of age. Such a distinction is totally unwarranted. The crucial question to be asked is whether the particular incumbent is continuing after the attainment of 65 years of age, if that question is answered in the affirmative there is a cessation ofoffice, in view of the terms of that Section. The contrary conclusion would lead to strange c results. Those who are appointed prior to the Act and on the attainment of 65 years on 13.7.90, would vacare the office while a person already 65 on that date and after the passing of the Act notwithstanding the policy of prescribing the age of superannuation of 65 years would continue in the offict;. The object of introducing an age of superannuation itself is to weed D out the older. elements and infuse fresh blood so that the administration ctmld function with vigour.

Mr. Kapil Siba~ learned counsel for the first respondent would submit that legislative intention has not been brought out clearly. In this connection we will do well to refer to Francjs Bennion's Statutory Inter- E pretation (1984 edn.) at page 237. The distinction between.the legislative intention and the purpose or object of the legislation has been succinctly · summarised as under:-

'The distinction between the purpose or object of an enactment and the legislative intention governing it is that the former relate~to the mischief to which the enactment is directed and r _... its remedy, while the latter relates to the legal meaning of the enactment".

Thus there is a great distinction between the two. While the object 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 that enactment. F6r the limited purpose of appreciating

STATE v. K.C. MAIWAN (MOHAN, J.] 965

the background and the antecedents factual matrix leading to the legisla- A tion it is open to the court to look into the statement of 'Objects and Reasons' of the Bill which accentuated the statement to provide a remedy for the then existing malady. In the case of State of West Bengal v. Union of India, [1964] 1 SCR 371, this court ruled that the statement of 'Objects and Reasons' accompanied a Bill when introduced in Parliament can be used for the limited purpose of understanding, the background and state B of affairs leading up to the legislation. Therefore, we now look into the statement of 'Objects and Reasons'. That clearly brings out the object of the desirability of introducing an age of superannuation as the same is. entren.ched in our administrative and constitutio1tal systems. With this object in view, Section 3 intends that no one has a right to continue as a C member of the Board a(ter attaining the age of 65. Thus, the only con- clusion possible is, by reason of appointment if the incumbent is enable to continue after attaining the age of 65 years such continuing is rendered void.

No doubt as we have stated above, Section 5(6} as amended achieves D this purpose. Yet if there "is another Section which deals with the same it must be regarded as one introdued by way of abundant caution. In short, Section 3(1) is epexegesis.

The agruments advanced by Mr. Kapil Sibal remind us of the elo- E quent words of Dr. Johnson "There is a wicked inclinatiop in most people to suppose an old man decayed in his intellects. If a young or middle-aged man, when leaving a co~pany, does not recollect where he laid his hat, it is nothing; but if the same inattention is discovered in an old man, people - ,, wiil shrug up their shoulders, and say, 'His memory is going'." F It our opinion such sentiments can be no answer against the opera- tion of law.

In might be argued by the tenure of appointment there is a right to continue; the legitimate expectation has come to be interfered with. In a G matter of this kind, as to whether legitimate expectation could be pleaded is a moot point. However, we will now refer to Wade's Adn1inistrative Law (6th Edition) wherein it is stated at page 520-21, as under : -

"Legitimate expectation : positive effect H

966 SUPREME COURT REPORTS fl992f l S.C.R.

A The classic situation in which the principles of natural justice apply is where some legal right, liberty or interest is affected, for instance where a building is demolished or an office-holder · is dismissed or a trader's licence is revoked. But good ad- ministration demands their observance in other situations also, where the citizen may legitimately expect lo be treated fairly. B As Lord Bridge has explained :

Re Wcstministcr CC (1986) AC ('68 at (fJ2. Lord Diplnck made a formal statement in the Council of Civil Service Unions . case (below) at 4408, saying that the decision must affect some c other person either - (a) by altering rights or onligations of that person which are cnforccahlc hy or against him in private law; or (h) hy depriving him of some benefit or advantage which either (i) he had in the past been pcrmitlcd by the dccision- makcr to enjoy and which he can legitimatdy expect to be permitted to continue to do until there has been communicated D lo him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. E This analysis is 'classical hut certainly not exhaustive : R. Secretary of Slate for the Environment ex. P. Notlinghamshire CC (1986) AC 240 at 249 (Lord Scarman). O~c case which dues nol seem to be covered is that of a first-time applicant for a licence (hdow. p. 559). The courts have developed a rela- F tively nm·d doctrine in puhlic law that a duty of consultation m"y arise from a legitin1atc cxpc(.;tation of consultation aroused either by a promise or hy an cstahlishcd practice of consult- ation".

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

SlAff 1·. K.C. MAI IN1\N IMOllAN, J.] %7

he made subject to the grant of licences which, by their nature, are subject to temporal limits and to various conditions. Fur- thermore, the introduction of the quota system was only one event amongst others in th.e evolution of the fishing industry, which is characterised by instability and continuous changes in the situation due to a series of events such as the extensions, in 1976, of fishing areas to 200 miles from certain coasts of the community, the necessity to adopt measures fer the conserva- tion of fishing resources, which was dealt with al the intcrna-

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

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

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

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

E\'cn ~1ssuming that the r1,:asnni11g. 111' the High court is cnrrccl. in that, hy the tcrn1 of .ipp11intn1cnt h.: should have J right tu continue after H

968 SUPREME COURT REPORTS [1992] 1 S.C.R.

A attaining the age of 65, when we look at the notification dated 12.6.89, that lives the first respondent a right to continue beyond the age of 65.

Then the question will be whether. it is a single person's legislation. The argument and the counte.r arguments proceed thus. Mr. Shanti Bhushan would urge that it happened at the time of enactment only the B first respondent had attained the age of 65 years and , therefore, it could not be called a single man's legislation since it affects everyone. On the contrary, the argument of Kapil Sibal is that only the first respondent alone could be affected and, therefore, it is a single person's legislation being violative of Article 14 of the constitution. We will look at the c relevant case law which deals with single person's legislation and how far they are violative of Article 14. In Chiranjit Lal Chowdhury v. The Union of India and Others, [1950] 1 S.C.R. 869, the head note reads :

"Held also per KANIA C.J., FAZAL ALI, and MUKHERJEA JJ. - (PATANJALI SASTRI AND DAS, JJ. dissenting) - that though the Legislature had proceeded against one company only and its shareholders inasmuch as even one corporation or a group of persons can be taken to be a class by itself for the purposes of legislation, provided there is sufficient basis or reason for it and there is a strong presumption in favour of the constitutionality of an enactment, the burden was on the petitioner to prove that there were also other companies similarly situated and this company alone had been dis- criminated against, and as he had failed to discharge this burden the impugned Act cannot be held to have denied to the petitioner the right to equal protection of the laws referred to in Art. 14 and the petitioner was not therefore entitled to any relief under Art. 32.''

In Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendo/kar & Others, [1959] S.C.R. 1959 @ 296-299, it has been held thus :- G "..It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intel- H ligible diffcrentia which distinguishes persons or things that are

STATE v. K.C. MAHAJAN [MOHAN, J.} 969

grouped together from others left out of the group and, (ii) A that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classifica- tion may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of B classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure". The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish - C (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by hims.elf ; D (b) that there is always a presumption in favour of the con- stitutionality of an. enactment and the burden is upon him who attacks it to show that" there has been a clear transgression of the constitutional principles ; E (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ;

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may a(sume every stale of facts which can be conceived existing at the time of legislation ; and

(f) that while good faith and knowledge of the existing condi- tions on the part of a legislature are co be presumed, if there H

970 SUPREME COURT REPORTS [1992J l S.C.R.

A i.' nothing on the face of the law or the surrounding circumstan- ces brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown I

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

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

A close pcrsual of the decisions of this Court in which the above principles have hcen enunciated and applied by this Court will also show that a statute which may come up for consideration on a question of its validity under Art. 14 of the Constitution, D may he placed in one or other of the following live classes :-

(i) A statute may itself indicate the persons or things to whom its provisions arc intended to apply and the basis of the clas- sification of such persons of thing.' may ap!Jear on the face of the statute or may be gathered from the surrounding cir- cumstances known lo or brought to the notice of the Court. In determining the validity or otherwise or such a statute the court has lo examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply. to a particular person or thing or only to a certain class of persons or things. Where the Court finds that the classification satisfies the tests, the court will uphold the validity of the law, as it did in Chira11jiral Owwdhari v. The U11io11 of /11dia, n1c Scare of Bombay v. F.N.Balsara, Kedar Narh Bajoria v. n1e Srare of Wesr Be11ga/, V.M. Syed Molrammad & I Company v. n1e Slate of A11dltra and 8/111dha11 Choudhary '" H nre Stare of Bilrar. /-

STATE v. K.C. MAHAJAN [MOHAN, J.J 971

(ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowlegde. In such a case the court will strike down the law as an instance of naked discrimination, as it did in Ammenmnissa Begum v. Mahboob Begum and Ramprasad Narain Sahi v. The State of Bihar."

From the proposition it is clear that there could a legislation relating 'r- to a single person. Assuming for a moment, that the Section 3 applies only to the first respondent even then, where it is avowed policy of the State to introduce an age of superannuation of 65 years of.age, there is nothing wrong with the same.

In Lachman Das on behalf of Jinn Tilak Ram Ram Bux v. State of Punjab and Others, (1963] 2 S.C.R. 353@ 375, it is held as thus:- 0 "... Professor Willis says in his Constitutional Law p580 "a law applfing to one person or one class of persons is constitutional if there is sufficient basis or reason for it". This statement of law was approved by this Court in Chiranjit Lal Cliowdhry v. Union of flldia." E

Therefore, on this principle Patiala State Bank was held to be a class by itself and it would be within the power of the State to· enact a law with respect to it.

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

"That takes us to the argument thal the Act is invalid because it contravenes Act.14. In our opinion, there is no substance in this argument. We have referred to the historical background of the present .legislation. At the time when Ordinance No. II G of 1959 was issued. it had come to the knowledge of the Government of Rajasthan that valuables such as jewclleries, ornaments, gold and silver-ware and cash had been removed by the Tilkayat in the month of December 1957, and as the •• successor of the Stale of Mewar, the Slate of Rajasthan had to H

972 SUPREME COURT REPORTS [1992] 1 S.C.R.

A exercise its right of supervising the due administration of the properties of the temple. There is no doubt that the shrine at Nathdwara holds a unique position amongst the Hindu shrines in the State of Rajasthan and no temple can be regarded as comparable with it. Besides, the Tilkayat himself has entered into negotiations for the purpose of obtaining a proper scheme B for the administration of the temple properti~s and for ihat purpose, a suit under s.92 of the Code had in .fact been filed. A Commission of Enquiry had to be appointed to investigate into the removal of the valuables. If the temple is a public temple and the legislature thought that it was essential to -"'( c safeguard the interests of the temple by taking adequate legis- lative action in that behalf, it is difficult to appreciate how the .Tilkayat can seriously contend that in passing the Act, the legislature has been guilty of unconstitutional discrimination. As has been held by this Court in the case of Shri Ram Krishna Dalmia v. Shri Justice G.R. Tendolkar, that a.Jaw may be con- D stitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable tcr hint and not applicable to others, that single individual may be treated as a class by himself. Therefore, the plea raised under Art.14 fails. E In La/it Narayan Mishra Institute of Economic Development and Social Change, Patna, etc. ·v. State of Bihar & others etc., [1988] 3 SCR 311 @ 312 it is held thus :-

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

@ p. 321 it is held thus :-

G " The nationalisation has been resolved to be made in phases. It has been already noticed that under section 3( 1) of the Act, the Institution mentioned in ·the Schedule will be transferred to the State Government and will be actually vested in it free from all circumstances. The Schedule mentions only one In- H stitute and in view of section 3(1) it has vested in the State

STATE v. K.C. MAHAJAN [MOHAN, J.] 973

' Government. It is said that the first phase relates to the taking over of the Institute and that has been done. Section 3(2) also provides for amendment of the Schedule by including any institution. In other words, the other institutions which answer the description of private educational institutions as defined in clause( a) of section 2 of the Act will also fie nationalised not at a time, but in phases, the first phase having started with the take over of the institute. This, in short, is the scheme of the Act.

'r-· . @ p. 232, it is held as· under :- ·c " The contention made on behalf of th.e petiti'1mer-Society is wholly misconcieved. The Ordinances were· not promulgated and the Act was not passed for the purpose of nationalisation of the Institute only. It [s apparent from the provisions of the Ordinances and the Act that the private educational institutions as defined therein are to be taken over for the purpose .as D mentioned in the Preambles to the Ordinances and the Act in ,.. \ a phased manner. All the institutions ·which answer the description as given in Section 2( a) of the Act are to be nationalised. It is, therefore, not correct to say that the In- stitute has been singled out for the purpose of nationalisation. E

There can be no doubt that when nationalisation has to be done in a phased manner, all the institutions cannot be taken over at a time. The nationalisation in a phased manner con- templates that by and by the object of nationalisation will be -· '-I taken over. Therefore, in implementing the nationalisation of private institutions in a phased manner, the Legislature has started with the Institute. Therefore, the question of singling out the Institute or treating it as a class by itself does not arise, for as the provisions of the Act and the Ordinances go, all the private educational institutions, as defined in section 2(a) of the Act will be nationalised in a phased manner".

@ p. 325-26 it is held thus :-

"It is submitted that this fact demonstrates that the professed object of nationalisation in phases is a mere pretence and a H

974 SUPREME COURT REPORTS (1992] 1 S.C.R.

A colourable device to single out the Institute for discriminatory treatment. The taking over of the Institute is an act of legisla- tion and not an act of the Government. The question to be considered is whether at the time when the Ordinances were promulgated or the Act was passed, the same suffered the vice B of discrimination or not. There can be no doubt that on the date the Ordinances were promulgated and the Act was passed, the same could not be challenged on the ground of non-im- plementation of the legislative intent in nationalising similar institutes by amending the Schedule. If a legislative enactment cannot be challenged as discriminatory on the date it is passed, c it is difficult to challenge the same as violative of Article 14 of the Constitution on the ground of inaction of the executive in implementing the purpose of the Act, regard being had to the fact that it was the Legislative which had made the selection for the first phase of nationalisation. If no such selection had been made by the Legislature and the entire thing had been left to the discretion of the Government, it might have been possible to contend of discriminatory treatment. The respondent's have, however, given an explanation for not in- cluding the other similar institutions in the programme of nationalisation, to be precise, in the Schedule to the Act".

While we are on this case, we have got to deal with the arguments of Mr. Kapil Sibal, who bases his submission on the extract from the pages 325-326 that the relevant date to determine arbitrariness is the date of enactment. On the date if the first re.spondent alone is affected it would be arbitrary and violative of Article 14, so proceeds argument.

We are unable to agree with this argument. No doubt, in this case Lalit Narayan Mishra Institute alone was taken over by the Legislature. That was the only institution affef:ted thereby. lnspite of this the Court G held this enactment is not violative of Article 14, since the institution of like nature would fall within the ambit of the statute;· notwithstanding the fact that only one institute has been specified in the schedule. The attempt of the learned counsel for the first respondent that all these cases legislative intervention became necessary because there were some other re;isons H namely, mismanagement requiring taking over the banks and temples etc.

STATE v. K.C. MAHAJAN [MOHAN, J.] 975.

and therefore, the single person's legislation was upheld is not tenable. We A also hold that in order to justify a legislation of this character, no extraor- dinary situation need be disclosed. The contention that this is not in furtherance of the legislative object, cannot also be accepted because it has already been seen that the legislative object is to introduce as age of superannuation. Beyond this nothing more need be established by the B State. The possibility of this legislation applying to one or more persons e.xists in principle. The fact that only one indvidual came to be affected cannot render the legislation arbitrary as violative of Article 14. This is because Section 3 is general in terms and the incidence of its ap(Jlying to one individual does not render the legislation invalid. c The theory advanced by the learned counsel for the first res(Jondent that there must be mismanagement or some extraordinary situation to warrant a legislation of its character also does not seem to be correct as seen from 77ie Atlas Cycle Industries Ltd., So11epat v. 17ieir Workme11, [1963] 3 S.C.R. Suppl. 89 @ 103-4, it is held thus :- D

"Lastly, it is contended that the transfer of the proceedings pending before the old Tribunal to the new Tribunal under the Notification dated October 31, 1957, was invalid and inopera- tive. Two grounds were. urged in support of this contention. E One is that Shri A.N.Gujral attainded the age of sixty-five on June 4, 1957, and his term of office would have then expired under s.7C. Then the Punjab Legislature enacted Act 8 of 1957 raising the age of retirement under s.7C(b) from sixty-five to sixty-seven. That was with a view to continue Shri A.N.Gujral F in office. And this legislation came into force only on June 3,

1957. This Act, it is said offends Art. 14 as its object was to benefit a particular individual, Shri A.N.Gujral, and reference was made to a decision of this Court in A111eeroo11issa v. Me/Jboob as supporting this contention. There is no force in this contention. There the legislation related to the estate of G one Nawab Waliudduoula, and it provided that the claims of Mehboob Begum and Kadiran Begum, who claimed as heirs stood dismissed thereby and could not be called in question in any court of law. And this Court held that it was repugnant to Art.14, as it singled out individuals and denied them the right H

976 SUPREME COURT REPORTS . [1992) 1 S.C.R. ,....... A which other citizens have of resort to a court of law. But the impugned Act. 8 of 1957 is. of general application, the age being raised to sixty-seven with reference to all. persons holding the office under that section. The J)ccasion which inspired the enactment of the statute might be the impending retirement of B Shri A.N.Giljral. But that is not a ground for holding that it .is discriminatory and contravenes Art. 14, when it is, on its ternis, of general application".

The attempt to distinguish this case that it was one wherein a benefit ' of extension was conferred and that a number of industrial adjudications ---< c were pending cannot be accepted.

However, strong reliance is placed on D.S.Reddy v. Chancel/or, Os- mania r.Jniversity & Ors, [1967] 2 S.C.R,.Zt4 @ 223. The facts of this case require to be noted they can be culled from the headnote as under :- D "As a result of the Osmania University (Ainendment) Act II ·of 1966, s.12(1) of the Osmania Univers_ity Act, 1959, was amended to provide for the appointment of the Vice Chancel- !or by the Chancellor alone; in s.12(2) a provision was intro- E duced whereby he could only be removed from office by an order of the Chancellor passed on the ground of misbehaviour or incapaci.ty after enquiry by a person who was or had been a Judge of a High Court or the Supreme Court and after the · Vice Chancellor had been given an opportunity of making his representation against such removal Section 13{1) of the 1959 F Act was also amended so as to reduce the term of office of the v Vice Chancellor from 5 to 3 years.

The 1959 Act was again amended later in ·1966 by the Osmania University {Second Amendment) Act XI of 1966. Section 5 of G this amending Act introduced a new s.13A into the 1959 Act whereby it was provided that the person then holding the office of Vke Chancellor was appointed; atid that such new appoint- ment must be made within 90 days of the commencement of the Act whereupon the old Vice Chancellor would cease to ~.

H hold office. '

STATE v. K.C. MAHAJAN [MOHAN, J.] 977

----; The appellant filed a writ petition claiming, inter alia, that s.5 A of the second amending Act introducing the new s.13A was discriminatory as against him and therefore violative of Art.14. • The High Court dismissed the petition.

In the apf>eal to the Supreme Court, it was contended on behalf ·of the respondents that as the term of office had been redt!ced B to 3 years by the first amending Act, the legislature, in order to give effect to this provision and to enable fresh appointments to be made under the Act, had enacted s.13A which had, ~· necessarily, to apply to a person like the appellant who was in office at the time when the provisions came into force. such c provisions could not, in the nature of things, apply to Vice Chancellors who were to be appointed in future; the appellant was appointed from a panel submitted by a committee con- stituted under the unamended s.12(2) whereas future Vice Chancellors were to be appointed by the Chancellor alone; furthermore, the appellant had been the Vice Chancellor f~Jr 7

l years. Having regard to these circumstances the legislature had chosen to treat the appellant as a class by himself and had differentiated him from persons to be appointed Vice Chan- cellors in the future; that such classificaiion was reasonable and had a rational relation to the object sought to be achieved by the second amending Act i.e. bringing about uniformity in the tenure of 3 years of office for all Vice Chancellors; that the appellant 'was not entitled to the benefits of s.12(2) and the legislature was competent to enact s.13A so as to give effect to F '--.+ the amended provisions as early as possible". @ p. 229-230, it is held :-

"We have already staied that the appellant was appointed under the Act, for a further term of 5 years, as Vice Chancellor, on April 30, 1964, and he was continuing in office, as such, at the G time when the two Amending Acts were passed; and, normally, he would be entitled to continue in that post for the full term, which will expire only at the end of April, 1969. The First ~ Amendment' Act provided, in s.12 of the Act, that the Vice -or Chancellor is to be appointed by the Chancellor; but s.12(2) H

978 SUPREME COURT REPORTS (1992) 1 S.C.R.

A specifically provided that the Vice Chancellor shall not be removed from his office except by an order of the Chancellor passed on the ground of misbehaviour or incapacity and, after due inquiry by such person who is, or has been, a Judge of a • High Court or the Supreme Court, as may be appointed by the Chancellor. It was also provided that the Vice Chancellor was B to have an opportunity of making· his representation against such removal. Prima facie, the provisions contained in sub.s.(2) of s.12 must also apply to the appellant, who did continue in office even after the passing of the First Amendment Act. No doubt the term of office of the Vice Chancellor was fixed at 3 c years under s.13(1) of the Act. But no provisions were made in the First Amendment Act regarding the termination of the tenure of office of the Vice Chancellor who was then holding that post. ·

There can be no controversy that s.13A introduced by s.5 of D the Second Amendment Act, deals only with the appellant. In fact, the stand taken on behalf of the respondents in the counter affidavit filed before the High Court, was to the effect that the Legislature had chosen to treat the Vice Chancellor holding office at the time of commencement of the Second Amendment E Act, as a class by himself and with a view to enable the Chancellor to make fresh appointments, s.13A of the Act was enacted.

Therefore, it is clear that s,13A applies only to the appellant. Though no doubt, it has been stated, on behalf of the respon- F dent, that similar provisions were incorporated, at about the same time, in two other Acts, relating to two other Universities viz., the Andhra University and the Sri Venkateswara Univer- sity, and though this circumstance has also been taken into account by the learned Judges of the High Court, in our G opinion, those provisions have no bearing in considering the attack levelled by the appellant on s.13A of the Act.

This is a clear case where the statute itself directs its provisions

H by enacting s.13A, against one individual, viz. the appellant; and before it can be sustained as valid, this Court must be satisfied .,. . ·- "

' STATE v. K.C. MAHAJAN [MOHAN, J.J 979

that there is a reasonable basis for grouping the appellant as a A class by himself and that such reasonable basis must appear either in the statute itself or must be deducible from othe.r surrounding circumstances. According to learned coun.sel for the appellant, all Vice Chancellors of the Osmania University come under one group and can be classified only as one unit and there is absolutely no justification for grouping the appel- B lant under one class and the Vice Chancellors to be appointed in future under a separate class. In any event,. it is also urged that the said classification has no relation or nexus to the object of the enactment. c @ p. 230-231, it is observed as under :-

·"We are inclined to accept the contention of Mr. Setalvad, that there is no justification for the impugned legislation resulting

., in a classification of the Vice Chancellors into two categories, viz. the appellant as the then existing Vice Chancellor and the future Vice Chancellors to be appointed under the Act.

In our view, the Vice Chancellor,.who is appointed under the Act, or the Vice Chancellor who was holding that post on the D

date of the commencement of the Second Amendment Act, E from one single group or class. Even assuming that the clas- sification of these two types of persons as coming under two different groups can be made nevertheless, it is essential that such a classification must be founded on an intelligible differen- tia which distinguishes the appellant from the Vice Chancellor F .. appointed under the Act. We are not able to find any such intelligible differentia on the basis of which the classification can be justified.

"While a Vice Chancellor appointed under s.12 of the Act can be removed from office only by adopting the procedure under G • s.12(2), the services of the appellant, who was also a Vice Chancellor and similarly situated, is sought to be terminated by

a "1 enacting s.13A of the Act. We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant. The term of office of the Vice Chancellors has been H

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

A no doubt reduced under the First Amendment Act and fo<ed for 3 years for all the Vice Chancellors. Bur, so far as the appellant is concerned, by virtue of s.13A of the Act, he can continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days. While all other Vice Chancellors, ap- B pointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office on the expiry of 90 days from the date of commencement of the Second Amendment Act. There is also no provision in the statute providing for the termination of the services of the Vice c Chancellors, who are appointed under the Act, in the manner provided under s.13A of the Act. By s.13A, the appellant is even denied the benefits which may be available under the provision to sub-s.(1) of s.13 of the Act, which benefit is available to all other Vice Chancellors." D It will be clear from the above extract on its own terms the legislation applied only to one individual and nobody else, even in principle , to a future Vice Chancellor. There was no basis for making a distinction A between the then existing Vice Chancellor and the future Vice Chancellors, E who are to be treated differently. Further, the existing Vice Chancellor was subject to a disability for which there was no rational basis.

As a matter of fact, this ruling had come up for discussion in La/it Narayan Mishra Institute of Economic Developmelll and Social Change, Patna, etc. v. State of Bihar and Others etc., (1988) 3 S.C.R. 311 @ 322 it is F ruled :-

"The other decision that has been relied upon by the petitioner is B.S.Reddy v. Chancellor, Osmania University, (1967] 2 SCR

214. What happened in that case was that section 5 of the G Osmania University {Second Amendment) Act, 1966· intro- duced into the Osmania University Act, 1959 a new section 13A whereby it was provided that the person then holding the office of the Vice Chancellor of the University could only hold that office until a new Vice Chancellor was appointed, and ihat such T H new amendment must be made within 90 days of the commen-

STATE v. K.C. MAHAJAN [MOHAN, J.] 981

cement of the said· amendment Act whereupon the old Vice A, Chancellor would cease to hold the office. It was held by this Court thai there was no justification for the impugned legisla- tion, that is, the provision of section .13A, resulting in a clas- sification of the Vice Chancellors into two categories, namely, the appellant as the existing Vice Chancellor and the future B Vice Chancellors to be appointed under the Osmania Univer- sity Act. It was held that both these categories constituted one single group or class, and that even assuming that the classifica- tion of these two types of persons as coming under two different groups could be made, nevertheless, it was essential that such a classifi~ation must be founded on an. intelligible ·differentia which would distinguish the appellant from. the Vice Chancel- lors appointed under the Osmania University Aci. The Court held that there was no intelligible differentia on the basis of which the classification could be justified". D The situation in the case in hand is entirely different.

(Ameerunnissa Begum and Others v. Mehboob Begum and Others, [1953] S.C.R. 404} Ameerunnissa's case is clearly distinguishable. The reason is the impugned enactment excluded a particular set of persons .viz., E heirs of Nawab. They were even denied access to Court to ventilate their . greivances. Secondly, it was a named legislation. Though for apparent purposes it de.als with specifically the .wivi's claims of succession. Lastly, we will deal with Ram Prasad Narayan Sahi and Another v. 171e State of Bihar and Others, [1953] S.C.R. 1129 @ 1132-33, it is held as under :- F "The decision of the majority of this Court in Chiranjit Lal v. The Union of India is relied on in support of these contentions. In that case, however, the majority felt justified in upholding . the legislation, though it adversely affected the rights and interest of the shareholders of a particular joint stock compa!'y, G because the mismanagement of the company's affairs prejudi- cially affected the production of an essential commodity and caused serious unemployment amon~t a section of the com- l munity. Mr. Justice Das and I took the view that legislation' directed against a particular named person or corporation was H

982 SUPREME COURT REPORTS 11m11 s.c.R. A obviously discriminatory and could not constitutionally be jus- tified even if such legislation resulted in some benefit to the public. In a system of Government by political parties, I \vas apprehensive of the danger inherent in sp·ecial enactments which deprive particular named person of their liberty or property because the Legislature thinks them guilty of miscon- B duct, and said in ·my dissenting opinion :

" Legislat.ion based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious c parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think receive judicial encouragements.

It has to be carefully noted that this Act was intended to deny the appellant a right to decision by a court of law and that too in a private

A dispute between the parties. Hence, this ruling again has no application to the facts of ·the case. As we observed in the beginning of the judgment, if the State is well entitled to introduce an age of superannuation (we have referred to [1985] 2 SCR 579 Nagaraja's case), how could that be called discrimination or unreasonable ? The resultant conclusion is the amending Act, particularly, Section 3 is not, in any way, arbitrary and, therefore, not violative of Article 14.

Whether the failure to implead Chauha1! would be fatal to the Writ Petition? F The contention of Mr. Shanti Bhushan that the failure to implead Chauhan will be fatal to the writ petition does not seem to be correct. He relies on A.LR. 1979 Kerala 179. Thal case related to admission to medical college whereby invalidating the selection vitally affected those who had G been selected already. Equally, the case Padmraj Samrendra and others v. State of Bilwr and Anr., A.LR. 1979 Patna 266 has no application. This was a case where the plea was founded in Article 14 and arbitrary selection .

H The selcctces were vitally affected. The plea that the decision of the court 'in the absence of Chauhan would be violative of principle of natural justice as any adverse decision would affect him is not correct. •

STATE v. K.C. MAHAJAN [MOHAN, J.] 983

On the contrary, we think we should approach the matter from this' A point of .view, viz., to render an effective decision whether the presence of Chauhan is necessary ? We will in this connection refer to A. Ja11ardltana v. Union of India and Others, [1983] 3 S.C.C. 601, @ para 36 it is held as under:- B "...Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by any one individual and against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground".

What was the first respondent seeking in the writ petition?. He was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance. What is the relief could he have asked for against Chauhan ? None. The first point is Chauhan ·came to be appointed consequent to the suspension of the first respondent which suspension had come to be stayed by the High Court on 12.6.90. Then, again, as pointed out by the High Court it was "till further orders". There- fore, we hold the failure to implead Chauhan does not affect the main- tainability of the writ petition. E

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

· There is no denying the fact that the first respondent had G "battled with great grief and fears and borne the conflict of dream shattering years".

But the State says that this is a case of "much of a muchness" in the 7 words of Sir John Vanbrugh (in ''The Provoked Husband"). H

984 SUPREME COURT REPORTS [1992] 1 S.C.R.

A How do we balance these claims except to examine the matter in the light of the law and quote Horace: "tempus abire tibi est " ("time you were off').

In the light of the above discussion, it follows that the appellant is entitled to succeed. We hold that on 13.7.90 the first respondent's right to 8 hold office as Chairman/Member of Himachal Pradesh Electricity Board came to end. The impugned judgment of the High Court in C.W.P. No. 396of1990 dated 12th July, 1991 is hereby set aside. The appeal will stand allowed.

C However, as repeatedly stated by Mr. Shanti Bhushan during the course of the arguments that the State is willing to provide compensation for the remaining period of the tenure, we direct the State to pay the first respondent the salary, allowances and perks for the period commencing from 13.7.90 upto 25.7.92, had he continued in office but for the impugned · D legislation. If any payment has been made by interim orders of the court that will go towards the deduction of this liability.

In view of the peculiar·facts and circumstances of the case, there will < ··~ be no order as to costs.

V.P.R. Appeal allowed.