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2001 DIGILAW 318 (JK)

State Of J. &K. v. T. R. Atri

2001-12-04

H.K.SEMA, S.K.GUPTA

body2001
Per H.K. Sema, Chief Justice: 1. We have heard Mr. Ashok Parihar, Addl. Advocate General for the appellant as well as Mrs. Sindhu Sharma, learned counsel for the respondents. 2. This Letters Patent Appeal has been preferred by the State against the judgment 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 sub-section 2 of the section 4 of the Jammu and Kashmir State Legislature Members Pension Act, 1984 is ultra-vires of Article 14 of the Constitution and the said section has been declared void. 3. The facts leading to the filling of the present appeal may be summarily recited. Respondents were in the government service. Respondent-1 was the District and Sessions Judge and Respondent-2 was the Deputy Director of Field Survey Organization. They sought premature retirement after 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. 4. 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. Section 3 of the Act provides that pension shall be paid to a member at the rate of Rs. 100/- per mensem to every person, who served for a period of five years. To resolve the present controversy, Clause a and b to sub-section 2 of section 4 will be relevant. The two petitioners/respondents were aggrieved by the aforesaid section. Section 3 of the Act provides that pension shall be paid to a member at the rate of Rs. 100/- per mensem to every person, who served for a period of five years. To resolve the present controversy, Clause a and b to sub-section 2 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 section 3, such person 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 purpose of this sub-section and such person shall be entitled to receive such pension in addition to the pension to which he is entitled under section 3�. 4. This sub-section 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. 5. Before we advert to the arguments advanced by the counsel of both the sides, at this stage, we may point out that both the petitioners/respondents were receiving pensionary and other retiral 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 sub-section 2 of the section 4 envisages that the pension as provided under section 3 would not be applicable to a member, who was receiving pensionary amount, which is equal to or in excess of the pension provided under section 3. Clause a of sub-section 2 of the section 4 envisages that the pension as provided under section 3 would not be applicable to a member, who was receiving pensionary amount, which is equal to or in excess of the pension provided under section 3. Clause b provides that where the amount of pension received by such person is less than the amount which is fixed under section3 he shall be entitled to pension under section 3 only of an amount which falls short of the amount of pension to which he is entitled under section. 6. Further by proviso to sub-section 2 of the section 4, any pension received by a freedom fighter shall not be taken into account for the purpose of the aforesaid sub-section. In other words, the freedom fighter who receives the pension, shall not come within the ambit of the restriction imposed under sub-section 2 in Clause a and b. 7. It is in this context, let us examine whether the exception provided in sub-section 2 of the section 4 and proviso to sub-section 2 offended Article 14 and ultra-vires the provision of the Constitution. 8. It is contended by Mr. Ashok Parihar, learned Addl. 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 reasonable 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 provision of sub-section 2, Clause a and b of section 2 offended the provision of Article 14 of the Constitution in as much as it amounts to hostile discrimination among the members of Legislative Assembly and Legislative Council. She further submits that MLA is a class by itself and all the MLAs are equally situated and therefore, there cannot be any classification among the MLAs by providing the aforesaid section. 9. 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. 9. 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. 10. 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 equally 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 b of sub-section 2 of section 4 of the Act clearly reveals that the object sought to be achieved is reasonable classification, which is permissible under Article 14 of the Constitution. 11. 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 sub-section (1) is also entitled to any other pension , such person shall be entitled to receive the pension under sub-section (1) in addition to such other pension.� 12. 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 sub-section 2 of section 4 Clause a and b is violative of Article 14 of the Constitution, or not. 13. The petitioners/respondents are also taking grievance of proviso to sub-section 2 of the section 4 as quoted above. This is not the case, in the case in hand. The only issue raised before us is, whether the provision of sub-section 2 of section 4 Clause a and b is violative of Article 14 of the Constitution, or not. 13. The petitioners/respondents are also taking grievance of proviso to sub-section 2 of the section 4 as quoted above. By the aforesaid proviso, any freedom fighter receiving the pensionary benefits, is exempted from the purview of Clauses a and b of subjection 2. 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 of 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, cannot be equated with the freedom fighter. Since the petitioners/ respondents and the freedom fighters are not equally situated and equally circumstances, the petitioners/respondents cannot claim benefit extended to the freedom fighters. If such situation arises, it would amount to equal treatment amongst unequals, which is prohibited under Article 14 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 judgment and orders dated: 31-05-1990 is hereby quashed and set-aside. This appeal is allowed. The writ petition filed by the respondents stands dismissed.