MOHAN - (1.) THE facts relating to the Civil Appeal are as under :- THE first respondent (Mr. Kailash Chand Mahajan) retired from the post of Chief Engihneeer from the State of Punjab. On 24-7-81, he was appointed as a member of Himachal Pradesh State Electricity Board and thereafter appointed as Chairman of the said Board for a period of two years. On 13-8-82, the following notification came to be issued:- "No. 8-155/73-DP (Apptt. 11) 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 24/07/1981 as Chairman, H.P. State Electricity Board for a period of five years, with effect from 25/07/1981. Detailed terms and conditions of his appointment has (sic). This is in supersession of this Deptt. Notification of even number, dated the 24/07/1981. By Order K. C. Pandeya Chief Secretary to the Government of Himachal Pradesh." On 12-5-86, the term as Chairman was extended for another period of three years in the following terms:- "No. 8-155/73-DP (Apptt.II), dated Shimla-2, the 12/05/1986. Notification In continuation of this Department's Notification of even number, dated 13-8-1982, the Governor, Himachal Pradesh is pleased to extend the appointment of Shri Kailash Chand Mahajan as Chairman of the H. P. State Electricity Board for a further period of three years with effect from 25/07/1986, on the existing terms and conditions of his appointment as Chairman. By Order (P.K. Mattoo ) Chief Secretary to the Government of Himachal Pradesh." THEre was a further extension on 12-6-89 for a period of 3 years and that notification reads as under:- "No. 8-155/73-DP (Apptt. II) dated Shimla-2 the 12/06/1989. Notification In continuation of this Department's Notification of even number, dated 12/05/1986, 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 25/07/1989, on the existing terms and conditions of his appointment as Chairman.
(2.) THE Governor, Himachal Pradesh is further pleased to order that Shri Kailash Chand Mahajan, Chairman, H. P. State Electricity Board shall also continue to function as Secretary (M. P. P. and Power) to the Government of Himachal Pradesh. By Order (B. C. Negi) Chief Secretary to the Government of Himachal Pradesh." THErefore, it is obvious that the appointment was to continue up to 25-7-92. 2. 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 chairnianship of the Electricity Board. On 5-3-90, the third respondent became the Chief Minister. A notification dated 6-3-90, came to be issued in supersession of the notification dated 12-6-89 that the appointment of the first respondent as Chairman of the Himachal Pradesh State Electricity Board is extended from 25-7-89 to 6-3-90. Another notification dated 6-3-90 was issued directing that Mr. R. S. S. Chauhan shall function as Chairman, H. P. State Electricity Board w.e.f. 7-3-90. At this stage the first respondent preferred a Writ Petition No. 123/90 challenging the validity of the notification dated 6-3-90, and prayed for certiorari to quash the same. While that writ petition was pending, on 30-3-90, another notification was issued terminating the appointment of the first respondent as Member of the State Electricity Board. On 30-3-90, the High Court while admitting the writ petition (CWP No. 123 of 1990) ordered that no appointment to the post of Chairman of the State Electricity Board will be made till further orders of the Court. The matter was heard on 22-5-90. The learned Advocate General on conclusion of his argument requested the Court that the judgment may not be pronounced since he desired to seek instructions from the Government to reconsider the impugned order in CWP No. 123 of 1990. On 11-6-90, the learned Advocate General submitted to the Court that both the 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 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. and Power. He was also asked to submit his explanation within 21 days as to why action should not be taken under Section 10 of the Electricity (Supply) Act, 1948. Simultaneously, it was also ordered that he shall be placed under suspension with immediate effect by virtue of power under Section 10 of the said Act. Consequent upon the suspension of the first respondent, the notification dated 16/07/1990 came to be issued placing Mr. R. S. S. Chauhan, Member (Operations), H. P. State Electricity Board as Chairman with immediate effect until further orders.
(3.) BEING aggrieved by the above show cause notice and the order of suspension, the first respondent filed CWP 303 of 1990 on 12-6-90. The High Court while admitting the, writ petition granted interim stay of the order of suspension. On 22-6-90, the Chief Secretary of the Govt. of Himachal Pradesh wrote to the Secretary, Government of India, Ministry of Home Affairs, New Delhi requesting for permission to promulgate Electricity (Supply H. P. Amendment) Ordinance, 1990. It was stated in the letter that at present no age limit has been prescribed for holding office of the Member of the State Electricity Board, it was necessary to 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 Chairman or Member of H. P. State Electricity Board. This provision was not only to apply to future appointments, but also to the existing Chairman and Members, and where the existing ineumbent's tenure is curtailed adequate compensation could be provided. No doubt, rules could be framed under Section 78 of the Electricity (Supply) Act, 1948. But those rules cannot have retrospective operations, hence the proposed ordinance.;