State of Jammu and Kashmir vs T.R.Atri

We have heard Mr. Ashok Parihar, Additional Advocate General for the appellant as well as Mrs. Sindhu Sharma. learned counsel for the

respondents.

This Letters 'Patent Appeal has been preferred by the State against the judgement and order dated 31 05 1990. By the aforesaid order, the

Learned Single Judge allowed writ petition filed by the respondents herein. The Learned Single Judge was of the view that subsection 2 of section

4 of the Jammu and Kashmir State Legislature Members Pension Act, 1984 is ultravires of Article 14 of the Constitution and the said section has

been declared void

The facts leading to the filling of the present appeal may be summarily recited. Respondents were in the government service. Respondent1 was

the District and Sessions Judge and Respondent2 was the Deputy Director of Filed Survey Organization. They sought premature retirement alter

completing qualifying service of 20 years with the intention to enter into fray of Assembly election. The premature retirement was granted and both

of them won and had been elected to MLC and MLA posts for a term of five years from 1972 to 1977.

Through the medium of the writ petition, they have assailed sub section 2 of the section 4 of the Jammu and Kashmir State Legislature Members

Pension Act, 1984 (hereinafter the Act). By the aforesaid Act. members of the Legislative Assembly and Legislative Council were made entitled to

the pension. Section3 of the Act provides that pension shall be paid to a member at the rate of Rs. 1000/ per mensem to every person, who

served for a period of five years. To resolve the present controversy, Clause a and 'b' to sub section2 of section 4 will be relevant. The two

petitioners/respondents were aggrieved by the aforesaid section. It reads as under:

(2).............

(a) Where the amount of pension which he receives under such law or otherwise, is equal to or in excess of that to which he is entitled under

section3, such pension shall not be entitled to any pension under that section; and

(b) Where the amount of pension which he receives under such law or otherwise, is less than to which he is entitled under section 3, such person

shall be entitled to pension under that section only of an amount which falls short of the amount of pension to which he is otherwise entitled under

that section:

Provided that any pension received by such person as a freedom fighter shall not be taken into account for the purposes of this subsection and

such person shall be entitled to receive such pension in addition to the pension to which he is entitled under section3.

This subsection was challenged on the ground that the hostile discriminations have been meted out to the petitioners in as much as they are

equally situated with the other members of Legislative Assembly, who are entitled to receive the pensionary benefits under this section.

Before we advert tot the arguments advanced by the counsel of both sides, at this stage, we may point out that both the petitioners/respondents

were receiving pensionary and other retrial benefits before they become MLC and MLA respectively and they continued to receive pensionary

benefits from the government even after they become MLA and MLC respectively. Clause 'a' of subsection2 of section4 envisages that the

pension as provided under section3 would not be applicable to a member, who was receiving pensionary amount, which is equal to or in excess of

the pension provided under Section3 clause 'b' provides that where the amount of pension received by such person is less than the amount which is

fixed under section, he shall be entitled to pension under section3 only of an amount which fails short of the amount of pension to which he is

entitled under sec tion3.

Further by proviso to subsection 2 of seqtion4, any pension received by a freedom fighter shall not be taken into account for the purposes of the

aforesaid subsection. In other wards, the freedom fighter who receives the pension shall not come within the ambit of the restriction imposed under

subsection2 in clause 'a' and 'b'.

It is in this context, let us examine whether the exception provided in subsection 2 of section 4 and proviso to subsection2 offended Article 14

and ultra vires the provision of the Constitution.

It is contended by Mr. Ashok Parihar, Learned Additional Advocate General for the appellant State that admittedly the writ

petitioners/respondents were in receipt of the pensionary benefits being the employees of the government before they became MLA and MLC and

therefore, by providing the aforesaid section, a reason able classification has been sought to be achieved and therefore, this cannot be termed as

either arbitrary or discriminatory. As against this, Mrs. Sindhu Sharma, Learned counsel appearing for the respondents vehemently contended that

the pro vision of subsection2, clause 'a' and 'b' of section4 offended the provision of Article 14 of the Constitution in as much as members of

Legislative Assembly and Legislative Council. She further submits that MLA is a class by itself and all the MLA's are equally situated and

therefore, there cannot be any classification among the MLAs by providing the aforesaid section.

By now, it is well settled principle of law that Article 14 prohibits discrimination, but it allows a reasonable classification based on intelligible

differentia. It is true that MLA or MLC is by itself a class. However, with regard to the entitlement of pensionary benefits, one must consider

whether they are equally circumstanced; when one is already in receipt of pensionary benefits under law, and the other is not receiving any

pensionary benefits as provided under law. It is in these circumstances, two classes of MLAs/MLCs cannot be bracketed together.

In this view of the matter, it cannot be said that all the MLAs are equally circumstanced in respect of entitlement of pensionary benefits.

Equality clause is applicable only to equal circumstanced. Equality does not mean that the rich and poor should be taxed equally. If this ratio is

applied, then it would amount to discrimination in reverse. On the other hand, if the respondents are allowed to receive pension equally with other

MLAs or MLCs, they would be receiving more pension than other MLAs or MLCs and that would amount to discrimination again amongst the

MLAs. Reading of clause 'a' and 'b1 of subsection 2 of section4 of the Act clearly reveals that the object sought to be achieved is reasonable

classification, which is permissible under Article 14 of the Constitution.

Mrs. Sindhu Sharma, Learned Counsel for respondents has also brought to our notice the Salary, Allowances and Pension of Members of

Parliament (Amendment) Act, 1993 wherein it has been provided in section 3 as under :

(3) where any person entitled to pension under subsection (1) is also entitled to any other pension, such person shall be entitled to receive the

pension under subsection (1) in addition to such other pension.

The aforesaid provision as would appear from the title of the Act is in relation to payment of salary, allowances and pension of members of

Parliament. In the section itself, they are entitled to receive pension in addition to any other pension. This is not the case, in the case in hand. The

only issue raised before us is, whether the provision of subsection2 of Section 4 Clause 'a' and 'b' is violative of Article 14 of the Constitution or

not.

The petitioners/respondents are also taking grievance of proviso to sub section 2 of the section 4 as quoted above. By the aforesaid provision,

any freedom fighter receiving the pensionary benefits is exempted form the purview of Clauses 'a' and 'b' of subsection2. The

petitioners/respondents claim the same benefit as extended to the freedom fighters be extended to them. It is utterly incomprehensible. By no

stretch of imagination, the petitioners/respondents can be equated with the members of freedom fighters. The 'freedom fighters is a class by itself

and any ordinary citizen cannot ""claim equal benefit or exemption as granted to the freedom fighters the reason being that an ordinary citizen how

high he might be, can not be equated with the freedom fighter. Since the petitioners/respondents and the freedom fighters are not equally situated

and equally circumstanced, the petitioners/respondents cannot claim benefit ex tended to the freedom fighters. If such situation arises, it would

amount to equal treatment amongst unequals, which is prohibited under Article14 of the Constitution.

For the reasons aforesaid, we are of the view that the reasoning given by the Learned Single Judge, is well misplaced. The Judgement and

other dated 31.05.1990 is hereby quashed and setaside. This appeal is allowed. The writ petition filed by the respondents stands dismissed.