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Judgment
Petitioners herein have filed this petition for quashing the provision of subsec. 2 of sec. 4 of J&K State Legislature Members Pension Act. 1984 as
amended by amending Acts of 1985 and 1987 being ultravires of Art. 14 of the constitution of India and further for issuing direction to
Staterespondent to release the pension to them in accordance with the rules prescribed by the aforesaid Act from the date when it came into force.
Their case is that petitioner No. 1 was a Judicial Officer of the rank of District & Sessions Judge in the year 1977 when he sought his premature
retirement from judicial service. He was thus granted premature retirement with effect from July 20, 1977. He then was sworn in as Member of
Council of Ministers and put incharge of Law and Revenue as a Minister of State and was subsequently elected to the Legislative Council where
he served for a period of about six years as Member Legislative Council and for a period of more than five years as member of Council of
Minister. Petitioner No. 2 was Deputy Director of Field Survey Organisation in the year 1972 when he sought premature retirement from Govt.
service as he was set up as a candidate on behalf of Indian National Congress party to contest J&K State Assembly elections from Udhampur
constituency which he won He served as member Legislative. Assembly for a term of five years from 1972 to 1977.
Petitioners further case is that J&K State Legislative Members Pension Act, 1984, being Act No. 3 of 1984 (herein after called Act of 1984),
allowed pension to those who had served for a period of six years as members of Legislative Assembly or a member Legislative Council, after
11th July, 1977. SubSec. 2 of sec. 4 of this Act provides that if any person entitled to pension under sec. 3 receives tiny pension from the Central
Govt. or any State Government or any corporation owned or controlled by the Central Government or any local authority under any law or
otherwise and if the amount of such pension is equal to which he is entitled under sec. 3 such person would not be entitled to any pension under
that section and where the amount of pension which he receives under such law or otherwise is less than that to which be is entitled under sec. 3
such person shall be entitled to pension under that section only to amount which falls short of the amount of pension to which he is otherwise
entitled under that section. This provision includes recipients of pension from the State Govt. Central Government or the corporation owned by the
Central Government or the State, if the amount of pension which they receive exceeds the amount of pension which they would have been entitled
to under sec. 3 of the Act. They are receiving pension from the State Government which were more than the pension which they would be entitled
to under sec. 3 and as such they are entitled to receive any pension under the aforesaid Act. Confirment of the benefit of pension only to those who
had remained as members of legislature after 1171977 was totally discriminatory and arbitrary on the ground that there was no reasonable or
rational hypothesis for classifying members. The absurdity of this classification was soon realised, with the result that by J&K State Legislative
members pension (amendment) Act of 1985 (hereinafter called Act. of 1985), benefit of pension was made available to every person who had
served for a period of five years as member of constituent Assembly of the State or member of Legislative Council of state or member of
Legislative Assembly or partly as member Legislative Council and partly as member Legislative Assembly.
Petitioners further plea is that disability to receive pension under sec. 3 of Act 1984 was eqully attracted in the case of person who were in the
receipt of pension as freedom fighters. J&K State Legislature in order to remove the disability of freedom fighters and to entitle them to receive
pension under sec. 3 passed J&K Legislative Members Pension (amendment) Act of 198, (hereinafter Actof 1987), which specifically provided
that the freedom fighters getting pension as such freedom fighters would be entitled to receive persion under Sec. 3. The only category of
pensioners left out of the ambit of sec. 3 of the Act is of those pensioners who entered the legislature after retirement from civil service. They have
thus challenged the constitutional validity of clauses A & b of sub sec. 2 sec, 4 of the Act of 1984 as amended by Acts of 1985 and 1987 on
various grounds.
Advocate General and Mr. D. C. Raina Advocate appeared for the respondent but they neither filed counter later on as directed by the Court nor
put in the their appearance subsequenty. The case was thus heard in absence of the respondent.
I have heard the learned counsel for the petitioners and perused various documents.
J&K State Legislature Members Pension Act, 1984 was passed by the Legislature to provide pension of Rs. 500/ P. M. to every person who has
served for a period of six years as a member of the Legislative Assembly or as a member of the Legislative Council after 11th July, 1977 or six
years partly as a member of the Legislative Council after 11th July, 1977. Influenced by the judgment of the Supreme Court i.e. D.S. Nakara
versus Union of India, AIR 1983 SC 130 according to which pensioners form a class by themselves, irrespective of their date of retirement, this
Act was amended by the amending Act of 1984 so as to provide that with the commencement of the Act there shall be paid a pension of Rs. 600/
P.M. to every person who has served for a period of 5 year (a) as member of the constituent Assembly of the State, or (b) as member of the
Legislative Council of the State, or (c) as a member of the Legislative Assembly of the State, or (d) partly as a member of the Legislative Council
of the State and partly as member of Legislative Assembly of the State. According to sec, 52 of the constitution of the .State of J&K. the
Legislative Assembly, unless sooner dissolved, was to continue for five years from the dale appointed for its first meeting and no longer. This
section was, however, amended by the 16th Amendment Act of 1977 so as to substitute the period of five years by a period of six years. The
Legislative Assembly holding its first meeting on 11th July, 1977 was to continue for a period of six years whereas all the previous Legislative
Assemblies were to last for five years. This being so the period of six years mentioned in sec. 3 of the J&K. State Legislature Members Pension
Act of 1977 was substituted by five years by the amending Act of 1985. Sec. 3 of the Act as amended from time to time reads as under;
(I) With effect from the commencement of this Act there shall be paid a pension of one thousand rupees per monsem to every person who has
served for a period of five years :
(a) As a member of the constituent Assembly of the state; or
(b) As a member of the Legislative Council of the State; or
(c) As a member of the Legislative Assembly of the State; or
(d) Partly as a member of the Legislative Council of the State and partly as a member of the Legislative Assembly of the State;
Provided that where any person has served as aforesaid for a period exceeding five years, there shall be paid to him an additional pension of one
hundred rupees per mensem for every year in excess of the aforesaid period of five years but in no case the pension payable to such person shall
exceed one thousand two hundred rupees per mensem.
Petitioner Sh. T. R. Atri was a Judicial Officer of the rank of District & Sessions Judge in the year 1977. He sought premature retirement with
effect from 20th July, 1977 to join as member of the Legislative Council to which he was elected. Petitioner No. 2 was a Deputy Director of Field
Survey Organisatio till 1972 when he sought premature retirement after putting in 27 years service. He was elected as member of Legislative
Assembly for a term of five years from 1972 to 1977. Both these petitioners have been denied pension as members of legislature to which each
one of them is entitled by virtue of sec. 3 of the Act because of sec. 4(2) of the Act which reads as under :
Where any person entitled to pension under section 3 so receives any pension from the Central Govt. or any State Government, or any
corporation owned or controlled by Central Govt. or the State Government, or any local authority, under any law or otherwise, then
(a) where the amount of pension which he received under such law or otherwise, is equal to or in excess of that to which he is entitled under sec. 3
such person shall not be entitled to any pension under that section; and
(b) Where the amount of person which he receives under such law or otherwise is less than that 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.
This petition has been filed by the petitioners with a prayer to quash the provisions of subsec (2) of sec 4 as amended upto date, being ultravires of
Art. 14 of the constitution of India so as to enable every member of the Legislature entitled to pension under sec. 3 irrespective of the fact that he
receives any petition form the Central Government, or from a State Government or from any corporation owned or controlled by the Central
Government or the State Government or any local authority under law or otherwise. The statement and objects of the Act is to provide pension to
persons who have served as members of the legislature. The statement of objects and reasons given in the amending Bill of 1985 makes it clear
that the Bill sought to amend the J&K State Legislature Members Pension Act with a view to extending the benefits to persons who have served as
members of the constituent Assembly of the State or as members of the Legislative Council or Legislative Assembly prior to 1977 as under Act of
1984 only those persons who had served as members of the Legislative Council or Legislative Assembly after 11th July, 1977 Mere entitled to get
pension. Sec. 3 of the Act in pursuance of the statement of objects and reasons made every person who has either served as a member of the
constituent Assembly or Legislative Council or Legislative Assembly entitled to pension.
Therefore, the right of the petitioners to claim pension has been recognised by sec. 3 itself. Otherwise too, as early as in 1971 the Supreme Court
in Devkinandan parshad versus State of Bihar, AIR 1971 S. C. 1049 declared that payment of pension does not depend upon the discretion of the
Government but is governed by the relevant rules and any one entitled to pension under rules can claim it as a matter of right. The Supreme Court
again in D. S. Nakar's case reiterated that the antiguated notion of pension being a bounty, a gratituons payment depending upon the sweet will or
grace of the employer not claimable as a right, has been swept under the carpet. There is no maximum age limit to join Legislature although
minimum of 25 years of age is prescribed by sec. 21 of the Constitution of J&K State. Right of pension of every member of the Legislature,
including the petitioners, is recognised by sec. 3 of the Act of 1984. It is, therefore, clear that every person who has served as a member of the
legislature secures his pension as a matter of right for the services rendered as a member of, the legislature or that of the constituent Assembly, and
this right cannot be denied, more so, when very object of the Act as detailed in the statement of objects and reasons speaks of the entitlement of
pension of every person who has served as a member of the legislature. Denial of such a pension is violative of the principle enshrind in Article 14
of the constitution which provides equality before law connoting that among the equals the law should be equal and should be equally administered
and the likes should be treated alike. No reason, whatsover. has been given in the Act to deprive the petitioners of the pension to which their right
has been recognised by sec. 3
Freedom fighters who are receiving pension were also hit by the provisions of sec. 4 (2) of the Act like other pensioners. The Legislature realised
that since 'means test' is not the criteria, the freedom fighters cannot be deprived of their pension as members of the Legislature and, therefore, by
the amending Act of 1987 a proviso was added which reads:
Provided that any pension received by such person as a freedom fighter shall not be taken into account for purpose of this subsection and such
person shall be entitled to receive such pension in addition to the pension to which he is entitled under sec. 33.
The act of the Legislature permitting some to draw both the pensions and denying the same to others is hit by the provisions of Art. 14 being
arbitrary discriminatoty against equals similarly placed,
For the aforesaid reasons this petition is allowed and provision contained in sub sec. 2 of sac. 4 of the Act of 1984, as amended by amending Acts
of 1985 and 1987, is held to be ultra vires of Art. 14 of constitution of India and the same is quashed. Petitioners shall be entitled to pension with
effect from March 23, 1984, as per SRO 207 of June 5, 1985 Since subsec. 2 of sec. 4 has been declared void, it is further directed that every
person entitled to pension under sec. 3 of Act of 1984 shall be tereated like the petitioners and pension under the said Act shall not be denied to
him on the ground of his getting any other pension from any source. In this regard I am fortified by the judgement of the supreme Court reported in
K. L. Shepheid and others versus Union of India, AIR 1988 S. C. 686 wherein it was observed by their lordships of the Supreme Court that there
was no justification to penalise them for not having litigated who too should be entitled to the same benefits as the petitioners. There shall be no
order as to costs.