Madhya Pradesh High Court
Raghu Thakur vs State Of Madhya Pradesh on 26 September, 1996
Equivalent citations: AIR1997MP223, AIR 1997 MADHYA PRADESH 223
Author: A.K. Mathur
Bench: A.K. Mathur, Chief Justice
JUDGMENT A.K. Mathur, C.J.
1. In all these six writ petitions, similar question of law is involved, therefore, they are being disposed of by a common order.
For convenient disposal of the writ petitions, facts given in M.P. No. 4093 of 1992 are taken into consideration.
2. The petitioner has by this writ petition prayed that the provisions of Section 6-A as amended by Amending Act No. 18 of 1992 of M. P. Vidhan Sabha Sadasya Vetan Tatha Bhatta Tatha Pension Adhiniyam, 1972 (for short the Act of 1972) may be declared void as being unconstitutional. The petitioner is a public spirited person and he is said to be National Convenor of Samajwadi Manch. He is also stated to be a social and political worker. He has challenged the validity of Section 6-A of the Act of 1972, as amended by Act No. 18 of 1992, whereby a pension of Rupees 1500/- per mensem has been provided to every member of the M.P. Legislative Assembly and no minimum period of membership has been prescribed for being entitled to receive such a pension. It is contended that even a Member of Legislative Assembly (for short -- M.L.A.) who has remained as such for a period of a day, would also be entitled for pension of Rs. 1500/- per mensem and this is violative of Article 159 of the Constitution of India. It is contended that by not providing the requisite minimum period of membership, the enactment is in colourable exercise of legislative power and hence Section 6-A as amended by Act No. 18 of 1992 may be declared ultra vires.
3. In order to appreciate the contention of the learned counsel for the petitioner, it would be relevant to refer to amend Section 6-A of the Act which leads as under:--
"6-A. (1) There shall be paid a pension of one thousand five hundred rupees per mensem to every person who has served as a member of the Madhya Pradesh Legislative Assembly;
Provided that where any person has served as aforesaid for a period exceeding five years, there shall he paid to him as additional pension of one hundred rupees per mensem for every year in excess of five years.
Explanation : For the purpose of this subsection A member of the Madhya Pradesh Legislative Assembly' shall include persons who become member of the Legislative Assembly of the new State of Madhya Pradesh by virtue of the provisions contained in Section 28 of the States Reorganisation Act, 1956 (No. 37 of 1956)".
Prior to this amendment by Act No. 18 of 1992 Section 6-A of the Act of 1972 prescribed membership of the Assembly for a period of five years for purposes of being eligible for pension. Section 6-A as originally stood reads thus :
"6-A. Pension.
(1) As and from the 1st day of November, 1976 there shall be paid a pension of three hundred rupees per mensem to every person who has served, for a period of five years whether continuous or not, as a member of the Madhya Pradesh Legislative Assembly:
Provided that where any person has served as aforesaid for a period exceeding live years, there shall be paid to him an additional pension of thirty rupees per mensem for every year in excess of five, so, however, that in no case the pension payable to such person shall exceed four hundred and fifty rupees per mensem.
Explanation :-- For the. purpose of this subsection, 'a member of the Madhya Pradesh Legislative Assembly' shall include persons who become members of the Legislative Assembly of the new State of Madhya Pradesh by virtue of the provisions contained in Section 28 of the States Reorganisation Act, 1956 (No. 37 of 1956)."
Thereafter by Amendment Act No. 19 of 1991, Sub-section (1A) to Section 6 A was inserted after Sub-section (1). Sub-section (1 A) reads as under:
"6-A.....
(1) .....
(1A) Notwithstanding anything contained in Sub-section (1), every member of the sixth Madhya Pradesh Legislative Assembly, who could not serve as a member for a period of five years due to dissolution of the Legislative Assembly before the completion of its full term, shall be deemed to have completed the period of five years as a member for the purpose of Sub-section (1) and shall be entitled to receive pension from the commencement of the Madhya Pradesh Vidhan Sabha Sadsya Vetan, Bhatta Tatha Pension (Sanshodhan) Adhiniyam, 1991 (No. 19 of 1991):
Provided that any member as aforesaid shall be entitled to additional pension as provided in the proviso to Sub-section (1) only after serving actually a period of five years."
Article 195 of the Constitution of India lays down salaries and allowances of members. Article 195 reads as under :
"195. Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined by the Legislature of the State by law and, until provision in that respect is so made, salaries and allowances at such rates and upon such condition as were immediately before the commencement of this Constitution applicable in the case of members of the Legislative Assembly of the corresponding Province."
4. A return has been filed by the respondents. The respondents have contested the petitioner and submitted that the pension to members of Legislative Assembly is fully covered by Entry 42 of, List II of Seventh Schedule of the Constitution. It is also contended that the pension is not confined to the services rendered. Pension and allowances can be given in lieu of the services and no minimum period is necessary to be fixed. Entry 42 of List II of Seventh Schedule of the Constitution reads as under :
"42. State pensions, that is to say, pensions payable by the State or out of the consolidated Fund of the State."
It is also contended that the pension is provided for the M.L.As, in lieu of services rendered by them because it is not easy to seek confidence of voters numbering about one lac in each constituency. In order to earn confidence, one has to work with interest and sincerity for a good number of years. It is because of that confidence, a candidate seeks election and he may succeed or he may not. But few are fortunate who enter the arena for the first lime and are elected and may not repeat in future. It is alleged that a prospective candidate has to serve and nourish his constituency for a long lime. He has to spend his life in the services of the constituency and after serving for a prolong period of time, he gets success once a while and for his prolong efforts he has to be compensated. Thus, the pension is provided for his future life towards the services rendered by him in his constituency, the society, this paltry sum is paid to him to make his future secure to a limited extent. The respondent in its return has filed a similar provision existing all over the country in the various Assemblies where the pension has been provided. It may also be relevant to mention here that the Parliament has also made a provision for pension. The respondent has given details in Annexure-R 2 and subsequently material has been plated after procuring the same from various Assemblies.
5. Before we advert to the validity of the provision under challenge, it may be relevant to refer to some of the Constitutional provisions made for the Parliament and Assemblies and other related institutions. Article 195 of the Constitution deals with salaries and allowances of Assemblies. Similar provisions for parliament exists in Article 106 of the Constitution. Both these provisions only lay down that the Members of Parliament and Members of Assemblies shall receive salaries and allowances. Article 106 reads as under:--
"Article 106 Salaries and allowances of members-Members of either House of Parliament shall be entitled to receive such salaries and allowances as may from time to time be determined by Parliament by law and, until provisions in that respect is so made, allowances at such rates and upon such condition as were immediately before the commencement of this Constitution applicable in the case of members of the Constitution Assembly of the Dominion of India."
5A. As against this, Article 123 of the Constitution of India which has bearing with the service conditions of the Supreme Court provides for service conditions including pension. Article 125 of the Constitution of India reads as under :--
"125 (1) There shall be paid to the Judges of the Supreme Court such salaries as arc specified in the Second Schedule.
(2) Every Judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and until so determined, to such privileges, allowances and rights as are specified in the Second Schedule :
Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment."
Article 125 of the Constitution talks about salary of Supreme Court Judges and clearly postulates that the Judges shall be entitled to get salary as recommended by the Parliament. Article 125 also postulates that the Judges shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament. Similar provision appears in the Constitution for High Court Judges also, Article 221, which reads as under :--
"221. (1) There shall be paid to the Judges of each High Court such salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and until so determined, to such allowances and rights as are specified in the Second Schedule :
Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment."
In both these Articles there is a specific reference of pension as against Article 106 & Article 195 where there is none. In both these Articles the words used are 'Salaries & Allowances' -- determined by or under law made by the Parliament.
6. Article 97 of the Constitution of India talks about salaries and allowances of the Chairman and Deputy Chairman and the Speaker and Deputy Speaker of the House of the People. Article 97 of the Constitution reads thus :
"97. There shall be paid to the Chairman and the Deputy Chairman of the Council of States, and to the Speaker and the Deputy Speaker of the House of the People such salaries and allowances as may be respectively fixed by Parliament by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the Second Schedule."
Here the word 'pension' does not find place.
Article 148 of the Constitution of India deals with appointment and service conditions of the comptroller and Auditor-General of India. Clause (3) of Article 148 talks about Salary and other Conditions of service. Clause (3) of Article 148 reads as under :--
"148.
(1).....
(2).....
(3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by parliament by law and, until they are no determined, shall be as specified in the Schedule :
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age or retirement shall be varied to his disadvantage after his appointment."
Condition of President's Office and salary also find mention in Article 59 of the Constitution of India which reads as under :--
"59. (1) The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
(2) The President shall not hold any other office of profit, (3) The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privilege as are specified in the Second Schedule.
(4) The emoluments and allowances of the President shall not be diminished during his terms of office."
Here the words 'emoluments, allowances and privileges' arc provided; but significantly no pension has been provided.
Article 158 of the Constitution of India deals with conditions of Governor's office. Article 158 is reproduced below:
"158 (1) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any State be appointed Governor, he shall be deemed to have vacated his seal in that House on the date on which he enters upon his office as Governor.
(2) The Governor shall not hold any other office of profit.
(3) The Governor shall be entitled without payment of rent to the use of his official residences and shall be entitled to such emoluments, allowances, and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances, and privileges as are specified in the Second Schedule.
(3A) Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.
(4) The emoluments and allowances of the Governor shall not be diminished during his term of Office."
It is significant to note that here also, emoluments, allowances and previleges have been mentioned like that of the President and word 'pension' does not find place.
7. The idea behind giving all the aforesaid provisions is that the Constitutional framers perhaps did not like to provide pension for these elected posts as against appointed posts like Supreme Court Judges; High Court Judges, comptroller & Auditor-General of India. Likewise, no pension has been provided for the office of the Attorney General or Advocate General. The idea is that only the persons who are appointed to Constitutional office by virtue of their qualifications are entitled for pension and not persons who either hold office by virtue of election or appointed for fixed term like Attorney General and Advocate General.
8. The word 'pension' has been defined under Article 366(17) of the Constitution as under:
"366.(17) 'pension' means a pension, whether contributory or not of any kind whatsoever payable to or in respect of any person, and includes retired pay so payable, a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, of subscriptions to a provident fund;"
The definition of pension as given in the Constitution itself shows that whatsoever is paid to in respect of any person, be it on account of retirement, it gratuity so payable and any sum or sums so payable by way of the return, with or without interest. The concept is that something is paid in return of services. This definition also does not speak of pension which is payable to the members of the House, either of Parliament or of Assemblies.
9. Entry 71 of List I of Seventh Schedule, that is Union List, talks about Union Pensions. This Entry 71 of List I of Seventh Schedule of the Constitution of India reads as under :
"71. Union pensions, that is to say, pensions payable by the Government of India or out of the Consolidated Fund of India."
Entry 73 of List I of Seventh Schedule of the Constitution of India talks about the salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the Council of States and the Speaker and Deputy Speaker of the House of the People. It reads as under :
"73. Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the Council of States and the Speaker and Deputy Speaker of the House of the People,"
This shows that there is no specific provision made for payment of pension to the members of the Parliament or the Assemblies.
Similar Provision appears in Entry 42 of List II of Seventh Schedule, Entry 42 reads as under:
"42. States pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State."
Entry 38 of the List II of the Seventh Schedule deals with salaries and allowances of Members of the Legislature of the State. Entry 38 of the List II of Seventh Schedule of the Constitution of India reads as under :
"38. Salaries and allowances of Members of the Legislature of the State, of the Speaker and Deputy Speaker of the Legislative Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof.
10. The object of giving survey of all these Constitutional Provisions is that no specific provision has been made in regard to payment of pension to the members of the Parliament or the members of the Assemblies either in the main constitution or in the powers which have been detailed in List I and List II of Seventh Schedule of the Constitution of India. Thus, we are left with only the entries meant for pension provided in the List I and List II of Seventh Schedule of the Constitution. The only Entry 71 of the List I and Entry 42 of List II of Seventh Schedule of the Constitution of India talk about pension. Learned counsel for the petitioners have strenuously urged, and rightly so, that there is no specific provision in the Constitution of India with regard to the payment of pension to either Members of Parliament or to Members of Legislative Assemblies except Entry 42 of List II and Entry 71 of List I of Seventh Schedule of the Constitution. These Entries 42 and 71 mention that State Pension and Union Pension can be paid.
11. Learned counsel for the respondent state has emphasised that by virtue of Entry 42 of List 11 of Seventh Schedule read with Article 195 of the Constitution of India, pension can be provided, Article 195 of the Constitution, as quoted above, talks about salaries and allowances of members of Legislative Assembly and the Legislative Council of a State. Article 195 of the Constitution is significantly silent on the question of payment of pension to the members of either of Assemblies. Learned counsel for the respondent emphasised that the Legislature is competent to legislate under Article 246(3) read with Entry 42 of Second List of Seventh Schedule of Constitution. In this light, we have to consider whether in absence of specific provision in the constitution, can Entry 42, which lays down payment of pension, cover this aspect or not ?
12. So far as the power under Article 195 of the Constitution of India is concerned, that only enables the Assembly to lay down provisions for payment of salaries and allowances to its members. There is no specific provision for payment of pension whether the word allowance' can be expended to include 'pension' or not. The word 'allowance' has been defined in the Corpus Juris Secundum as under :--
"ALLOWANCE. The act of allowing, granting or admitting; permission or license; sanction or approbation of the Court to certain acts. The word always imports the voluntary act of party in doing something which is in his discretion to perform or withhold at pleasure.
The word may also denote that which is allowed; and in this sense it may be employed as rearing to a definite sum or quantity set apart or granted; an allotment, assignment, or grant; a sum awarded; something conceded as a compensation, abatement, or deduction, and, in particular connections, as refering to a customary deduction from the gross weight of goods; a gift or gratuity to a child or other dependent; a limited quantity of meal and drink when provisions fall short; an emolument; a share or portion allotted or granted, a sum granted as a reimbursement, a bounty, an approbation for any purpose. The term may denote a payment that is variable in quantity, and one which usually is gratuitous and ceases at the pleasure of the donor. The word has been held to be an equivalent or 'gift', 'gratuity', 'settlement', and sometimes of 'retainer pay'; and has been compared with, or distinguished from, 'advancement' (Advancement 2 C.J.S. p. 500 note 35), 'alimony', 'costs' 'fees' 'pay', 'retainer pay', and 'salary'."
The word 'allowance is of very comprehensive nature and it lays down that a sum granted as a reimbursement, a bounty, an appropriation for any purpose. The term denote a payment that is variable in quantity, and one which usually is gratuitous and distinguished from pay or salary. It is true that the word persion has not been provided specifically in this Article and the word 'allowances' which appears in conjunction with the word 'salary', denotes that something can be paid to the incumbents for their service in addition to salary.
13. Shri Saxena, learned counsel for the respondent State has strongly urged before us that Article 195 of the constitution of India should be read in conjunction with List II of Seventh Schedule, which empowers the Assembly to legislate on the Slate Pensions, like-wise, the Parliament under Entry 71 of List I of Seventh Schedule of the Constitution of India is empowered to legislate on the Union Pensions from a reading of Article 195 of the Constitution in conjunction with Entry 42 of List II of Seventh Schedule of the Constitution it transpires that though in Article 195 the word 'pension' has not specifically been used but the word 'allowances' has been used which is of very wide significance, it includes the 'pension'.
The word 'allowance' has many variables, like sum granted as a reimbursement bounty, an approbation, therefore in lieu of service of society being a member of assembly on retirement he can be granted pension. Therefore, it cannot be said that the aforesaid provisions lack the legislative competence. In fact, under Article 195 of the 'Constitution of India, pension is paid after retirement of an incumbent i.e. in lieu of service rendered to the Society.
14. Learned counsel for petitioner has invited our attention to various decisions of Hon'ble Supreme Court with regard to service pension. The case of D.S. Nakara v. Union of India, AIR 1983 SC 130 : (1983 Lab IC 1), is a famous case which deals with service pension and has a traced history with regard to pension. Though the old concept of pension has not been approved in context of the services, it has been held that it is not a bounty or gratuitous payment to be paid at the sweet-will or grace of the employer. Their Lordships of the Supreme Court observed as to what goal a pension seeks to serve, in paragraph 26, as under:
"A pension scheme consistent with available resources must provide that the pensioner would be able to live :
(i) free from want, with decency, independence and self-respect, find.
(ii) at a standard equivalent at the preretirement level."
The idea of granting pension in context of service is that incumbent, after serving for particular number of years in the service of the Society, can reasonably look back for with satisfaction that he is being provided and on account of severance of relations of master and servant, he is not being left high-and-dry and his services are adequacy compensated so that he can live life decently and with self respect.
15. The concept of the pension is for fulfillment of some service rendered to the Society, be it is the employment of the State or be it in the public service by becoming a Member of Parliament or Assembly. The basic principle remains that after serving the society, on retirement one should be given so much social security that he can live decently and respectfully. Learned counsel submitted that since there is no specific provision in the Constitution for pension; therefore Constitutional provision should be interpreted in the manner provided and not otherwise. In this connection, learned counsel submitted that the rule of interpretation of statute says that unless a contrary intention is expressly or by necessary implication available, words used in a statute should be given their natural meaning. In that connection learned counsel invited our attention to the case of Ibrahim Bachu Bafan v. State of Gujarat, AIR 1985 SC 697 : (1985 Cri LJ 533). There is no dispute to this general proposition of law for interpretation of Statute. Learned counsel also invited our attention to the case of Ashok Kumar alias Gohi v. Union of India, AIR 1991 SC 1792 : (1991 AIR SCW 1826), which is a case in respect of interpretation of Section 433A of the Code of Criminal Procedure. In that context, their Lordships observed that language of Section 433A is unambiguous and does not call for extrinsic aid for its interpretation. This was with regard to the interpretation of the provision on the basis of intrinsic material. This case has no relevance in the present context, as the interpretation of the aforesaid two provisions makes it clear that by necessary implication the Parliament and Legislature are competent to lay down the pension for their members and the Act does not lack legislative competence. In this connection reference may be made to the case of Lily Thomas v. State, AIR 1985 Mad 240 where a similar question came up for consideration and the same was affirmed with reference to Entry 42 of List II of Seventh Schedule of the Constitution. It was observed at page 243 -
"5. We can take it as a well settled rule that the State Legislature are endowed with plenary powers of legislation and if there arc limitations to such powers they are to be gleaned from the Constitution itself and there is absolutely no scope for bringing in any extraneous principle, legal though it may be. The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it. The presumption is always in favour of the constitutionality on an enactment since it is legitimate to assume that the legislature understands and correctly appreciates the needs of the situation and caters to the same. Unless the opposition between the constitution and the law made by the Legislature are incompatible with each other and a clear and a strong conviction is brought to the mind of the Court to that effect, the rules to be applied is one favouring constitutionality. It is not any adverse Implication from the stand-point view of the citizen or conjectures of arbitrariness that could persuade the Court to frown upon an otherwise perfectly valid legislation within ambit of the Constitution."
Their Lordships affirmed the validity of Tamil Nadu Payment of Salaries Act. This decision of learned single Judge was affirmed by Division Bench in Letters Patent Appeal in case of Lily Thoms v. State, AIR 1986 Mad 290, and it was observed that at page 296 -
".....unless there are clear words which can be read as a restriction on the legislative power of the State, it would not be possible to strike down any legislation on the ground of legislative competence. Apart from, the fact that the fields covered by Article 195 and Entry 42 are entirely different, we are not able to lead Article 195 as in any way restricting the scope of the Legislative power in respect of Entry 42."
16. This Court has also held that the Parliament is competent with reference to Article 106 of the Constitution i.e. for the salaries and allowances of members of Parliament. In that context, His Lordship Hon G.C. Gupta, J. (as he then was) in the case of Nar Narayan Singh v. UOI (W.P. No. 2096/92) order dt. 23-11-1993 held that the word 'salary' should be given wide meaning as appearing in Article 106 in relation to Parliament and the petition was dismissed.
17. Our attention was also invited to the case of Narayanlal Himatlal Bhatt v. State of Gujarat, 1986 (2) Guj LR 1240, wherein similar question arose and their Lordships with reference to power of Parliament to legislate under Article 246(3) of the Constitution of India, laid down that Entry 42 of List II of Seventh Schedule cover; the payment of pension and therefore the Gujarat Legislative Assembly Members' Act, 1984 is intra vires the Constitution. It was observed that -
"Reading Entry 42 along with Article 246(3) it is clear that the Stale has exclusive power to make laws for such State or any part thereof with respect to the pension payable by the State or out of the consolidated Fund of the State. Such provision for payment of pension will not in any way come into conflict with Article 195 of the Constitution, but, on the other hand, it will be only an additional benefit that is sought to be conferred upon the members of the Legislative Assembly who have served the State in that capacity.'' It may be relevant to mention here that these provisions are not peculiar to India alone. As we have adopted British Parliamentary system for governance of our country, it is worth mentioning that similar' provisions exist for House of Commons in England also. The pension is payable to the members of House of Commons also. In Halsbury's Laws of England -- Fourth Edition Vol. 34 (page 446) for the pensions of members, following procedure has been laid down in paragraph 1124 :
"1124. Pension of members, Anyone who, on or after 1st January 1972, ceased to be a member of the House of Commons is entitled to receive a pension if (1) he is or was neither a member of that House nor a candidate for election to it; (2) he is not or was not the holder of a qualifying office; (3) his aggregate period of reasonable service is not or was not less than four years; and (4) he was or had attained the age of sixty-five years.
The amount of such a pension is calculated at the rate of one sixteenth of the member's salary during the last twelve months of his service for each year of reckonable service.
Provision is made for members to elect to take an actuarially reduced pension if they leave the House of Commons between the ages of sixty and sixty-five and apply for an immediate pension and do not intend to stand for re-election. A member who has attained the age of sixty-two and completed at least twenty five years' service may elect, on the dissolution of a Parliament, to receive his full accured pension entitlement if the trustees are satisfied that he does not intend to stand for re-election.
Provision is also made for the payment of pensions to ministers and certain office-holders under the supplemental scheme, unless they elect not to participate in it.
Anyone who is entitled to receive a pension may, cither before or not later than one month after the first instalment of the pension becomes payable, notify the trustees of the Parliamentary Contributory Pension Fund that he wishes to commute all or part of the pension for a lump sum.
A pension under these provisions continues for the life of the person to whom it is payable in respect of any period during which he is again a member of the House of Commons or a candidate for election to it. Pensions are not assignable or chargeable with debts or other liabilities."
Up-shot of above discussion is that the Madhya Pradesh Vidhan Sabha Sadasya Vetan Tatha Bhatta Adhiniyam, 1972 is intra-vires and it is within the competence of the State Legislature under Article 195 of the Constitution read with Entry 42 of List II of Seventh Schedule of the Constitution to legislate on pension of members of Assembly.
18. Next question which learned counsel has raised is whether by fixing no period, the State Legislature has exercised its power in a colourable and arbitrary manner. Significantly enough in the M.P. Act, the amended provisions of Section 6A provide for pension of Rs. 1500/-per mensum to every person who has served as a member of Legislative Assembly but without any minimum period. Learned Counsel for the petitioner submits that the said provision is unique in this State only as no minimum period for entitlement to pension is prescribed. Learned counsel submits that pension is for minimum period of service rendered by incumbent in Government service or public institution but no minimum period has been prescribed in this Act, Learned counsel submits that the State Assembly has exercised its power arbitrarily; therefore, it is liable to be struck down. In order to find out whether this provision is peculiar in this State only, Shri Saxena. learned counsel for the respondent was directed to produce as to what is the minimum period prescribed in other States Assemblies of the country. Shri Saxena has given copies of the Acts framed by various Assemblies providing for pension to the members of respective Assemblies. Provisions made by some of the States in this regard run as under:
(1) ANDHRAPRADESH
12. Pension :
Pension is paid to the Ex-Legislators at the rate of rupees two hundred for every year of his membership in thc Assembly/Council or in both Houses together subject to a maximum of rupees two thousand per mensum.
Widows of deceased members are also paid pension at thc rate of pension which the deceased member would have been entitled had he been alive.
(2) ASSAM Ex-MLA entitled to pension @ Rs. 1000/-p.m. for service of 5 years, additional pension of Rs. 100/- p.m. for serving in excess of 5 years. Maximum pension paid is up to Rs. 2000/- p.m. (3) ARUNACHAL PRADESH Entitlement of ex-MLA pension @ Rs. 300/-p.m. for serving for a period of five years, for the period exceeding 5 years, additional pension of Rs. 50/- p.m. for every year up to Rs. 500A p.m. only.
(4) BIHAR ¼fcgkj½ ^^isa'ku dh lqfo/kk % HkwriwoZ fo/kku eaMy ds oSls lnL; dks va'kr% fcgkj fo/kkulHkk vkSj@;k va'kr% fcgkj fo/kku&ifj"kn ds lnL; ds :i esa fuokZfpr gksus ;k uke funsZf'kr gksus dh frfFk ls ikap o"kksZ dh iwjh vof/k rd yxkrkj ;k [kaMksa esa lsok dh gks ;k djsa ,d gtkj ikap lkS :i;k ¼1500(&½ izfrekg vkthou isa'ku fn;k tk;sxkA ijUrq ;g Hkh fd fdlh lnL; us ikap o"kksZ ls vf/kd dh vof/k ds fy;s dk;Z fd;k gks] ogka og ikap o"kZ ls vf/kd izR;sd o"kZ ds fy;s ,d lkS iPphl :i;s ¼125½ izfrekg dh nj ls vfrfjDr isa'ku ikus dk gdnkj gksxk] fdUrq fdlh Hkh n'kk esa ,sls O;fDr dks ns; isa'ku rhu gtkj :i;s ¼3000@&½ izfrekg ls vf/kd ugha gksxhA ijUrq ;g Hkh fd fo/kkueaMy ds fdlh lnL; dh lnL;rk vof/k blds ;FkkfLFkfr fuokZfpr euksuhr ?kksf"kr gksus ls ysdj fo/kkulHkk ds Hkax gksus rd ijUrq jk"Vªifr }kjk Hkax fd;s tkus ;k e/;ko/kh pquko gksus ;k lnL;krk ls R;kxi= nsus ;k lnL; dh e`R;q gksus dh NksM+dj dh vof/k ;fn pkj o"kZ N% ekg ¼4 o"kZ 6 ekg½ gks rks ;g vof/k isa'ku nsus ds iz;kstukFkZ ikap o"kksZ dh iwjh vof/k ds :i es ekuh tkosxhA ijUrq ;g vkSj Hkh fd izR;sd ,sls O;fDr dks ftlus fo/kku eaMy ds lnL; ds :i esa ;k va'kr% lHkk@ifj"kn ds lnL; ds :i esa ¼pkgs fujUrj gks ;k ugha½ 'kiFk xzg.k ds okn Hkh thou i;ZUr ,d gtkj :i;s ¼1000@&½ ifrekg rFkk ckn ds izR;sd o"kZ ds fy, ,d lkS iPphl ¼125@& :½ vfrfjDr jkf'k izfrekg dh nj ls isa'ku ikus dk gdnkj gksxk**A (5) GOA Ex-MLA pension @ Rs. 750/- per month for serving the Assembly for 5 years. Family pension to the widow of deceased ex-MLA.
(6) GUJARAT Ex-MLA pension @ Rs. 300/- p.m. for serving Assembly for five years, and is entitled to additional pension of Rs. 50/- per month for serving more than 5 years upto Rs. 600/- p.m. (7) HIMACHAL PRADESH Ex-MLA pension @ Rs. 500/- p.m. for serving for 5 years. Additional pension of Rs. 100/- p.m. for serving in excess of five years.
(8) JAMMU & KASHMIR Ex-MLA is entitled to pension @ Rs. 1000/-p.m. for serving the House for 5 years. In excess of 5 years, additional pension @ Rs. 50/- p.m. up to the maximum limit of Rs. 1200/- per month.
(9) KARNATAKA
(a) Pension Every person who has served after January 1952 for a term of 5 years as MLA/MLC is entitled to pension of Rs. 1,200/- and additional sum of Rs. 100/- per mensem for every subsequent completed year of Membership subject to maximum pension of Rs. 2,000/- per mensem. Ex-Members of Mysore Representative Assembly/Constituent Assembly/Legislative Assembly/Council who were members before 1952 are also eligible for a pension of Rs. 1,200/- per month (irrespective of the length of the period.
(b) Family Pension Where a member dies before the expiry of his term, his family is entitled for a family pension of Rs. 500/- p.m. for the remaining period for which such members could have but for his death, continued as member.
The salary, pension, family pension and other allowances of the members are disbursed through cheques
(b) (i) where a member resigns after serving for a period more than three years, he shall be deemed to have served as a member for five years and shall be entitled to pension.
(10) KERALA Act No. 12 of 1984
(i) For any period below two years. Rs. 500/- p.m. (2) For two years in aggregate. Rs. 750/- p.m. (3) For three years in aggregate. Rs. 1100/- p.m. (4) For four years in aggregate. Rs. 1400/- p.m. (5) For five years in aggregate. Rs. 1400/- p.m. (11) MAHARASHTRA Pension payable to Members:
(1) There shall be paid a pension of one thousand five hundred rupees per month to every person who has served as a member of the State Legislature for a term of office of five years, whether continuous or not and whether as a Member of the same House or of different House of the State Legislature;
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 two hundred rupees per month for every year in excess of five, (2) In computing the number of years for the purposes of Sub-section (1), the period during which a person has served as Chairman or Deputy Chairman of a Legislative Council or Speaker or Deputy Speaker of a Legislative Assembly or as Minister, Minister of State, Deputy Minister or Parliamentary Secretary or in more than one of those capacities by virtue of his membership in the Council or in the Assembly, shall also be taken into account.
(12) MADRAS 12-B. Pension (1) There shall be paid a pension of five hundred rupees per mensem to every person who after the 15th day of August, 1947, had been or is a Member of the Legislative Assembly or of the Legislative Council or of both, for one term.
(2) .....
(2A) .....
(3) .....
Explanation-I -- For purposes of Sub-section (1) the expression 'one term' shall mean a period of not less than one year and not more than five years of membership in the Legislative Assembly or in the Legislative Council or in both, whether continuous or not.
(13) NAGALAND Ex-MLA pension @ Rs. 300/- p.m. for one term, Rs. 400/- p.m. for serving for 2nd term up to maximum limit of Rs. 500/- p.m. (14) ORISSA Ex-MLA pension for 5 years Rs. 500/- p.m. excess of 5 years additional pension of Rs. 40/-p.m. Family pension after the death of Ex-MLA.
(15) PUNJAB Ex-MLA pension @ Rs. 1000/- p.m. for serving the Assembly for 5 years and an additional pension of Rs. 100/- p.m. for every year in excess of five.
(15) RAJASTHAN For any period up to five years, whether continuous or not, a pension of Rs. 500/- for any period beyond five years but up to ten years whether continuous or not, a pension of Rs. 1000/- for any period beyond ten years but upto fifteen years, whether continuous or not, a pension of Rs. 1500/- for any period beyond fifteen years but up to twenty years, continuous or not, a pension of Rs. 2000/- for any period beyond twenty years but up to twenty five years, whether continuous or not, a pension of Rs. 2500/- and for any period beyond twenty five years, whether continuous or not, a pension of Rs. 3000/- for serving as a M.L.A. shall be paid.
Explanation -
In computing the number of years for the purpose of determining pension with respect to a person who is elected to the Legislative Assembly in a bye-election, the period commencing with the date on which such person takes oath of his membership and ending with the date of dissolution of the Assembly shall be deemed to be five years.
(16) TRIPURA Ex-MLA pension @ Rs. 1000/- p.m. for serving for 4 years, additional pension @ Rs. 50/- p.m. for every excess of five years up to limit of Rs. 1350/- p.m. Family pension @ Rs. 600/- p.m. ¼17½ mRrj izns'k ^^HkwriwoZ lnL;ksa dh isa'ku izR;sd O;fDr ftlus lHkk ;k ifj"kn ds lnL;
ds :i esa ;k va'kr% lHkk ds lnL; ds :i esa vkSj va'kr% ifj"kn ds lnL; ds :i esa ikap o"kZ dh vof/k ¼pkgs fujUrj gks ;k ugha½ fd fy, dk;Z fd;k gks] vius thou i;ZUr ¼,d gtkj nks lkS ipkl½ :i;s izfrekg dh nj ls isa'ku ikus dk gdnkj gksxkA ijUrq tgka fdlh O;fDr us mi;qZDrkuqlkj ikap o"kZ ls vf/kd vof/k ds fy;s dk;Z fd;k gks ogka og ikap o"kZ ls vf/kd izR;sd iw.kZ o"kZ ds fy;s ¼,d lkS :i;s½ izfrekg dh nj ls vfrfjDr isa'ku ikus dk gdnkj gksxk] fdUrq bl izdkj dh bl /kkjk ds vf/ku ns; isa'ku dh vf/kdre /kujkf'k fdlh Hkh n'kk esa ¼nks gtkj ipkl½ :i;s izfrekg ls vf/kd u gksxhA Li"Vhdj.k & ,d tgka fdlh O;fDr us lHkk ;k ifj"kn ds lnL; ds :i esa ,slh vof/k rd dk;Z fd;k gks] tks ikap o"kZ ls vf/kdre ,d ekg de gks] ogka bl /kkjk ds iz;kstukFkZ ;g le>k tk;sxk fd ml O;fDr us ikap o"kZ ds fy, lnL; ds :i esa dk;Z fd;k gSA ¼Li"Vhdj.k & 2½ tgka fdlh O;fDr us o"kZ 1980 esa xfBr fo/kkulHkk ds xfBr lnL; ds :i esa ,slk vof/k rd dk;Z fd;k gks tks ikap o"kZ ls vf/kdre N% ekg ls de gks] ogka bl /kkjk ds iz;kstukFkZ ;g le>k tk;xk fd ml O;fDr us 5 o"kZ ds fy;s lnL; ds :i esa dk;Z fd;k gSA izR;sd ,sls O;fDr dh ftlus lHkk ;k ifj"kn ds lnL; ds :i esa va'kr% lHkk ds vkSj va'kr% ifj"kn ds lnL; ds :i esa ¼pkgs fujUrr gks ;k ugha½] mi/kkjk ¼1½ ds fofufnZ"V vof/k ls de vof/k ds fy;s dk;Z fd;k gks vkSj ftldk mi/kkjk ¼1½ ds vf/ku dksbZ isa'ku vuqcU/k u gks] vius thou i;ZUr ikap lkS :i;s izfr ekl dh nj ls isa'ku ikus dk gdnkj gksxkA dfri; O;fDr;ksa dks ns; isa'ku dh 'krsZ & tgka dksbZ O;fDr bl vf/kfu;e ds v/khu isa'ku ;k vfrfjDr isa'ku dk bl vk/kkj ij gdnkj gks tkrk gS fd mlus igyh tuojh] 1940 ds iwoZ xfBr ;k fo|eku lHkk ;k ifj"kn ds lnL; ds :i esa dk;Z fd;k gks ogka] ;FkkfLFkfr ,slh isa'ku ;k vfrfjDr isa'ku ,sls O;fDr dks igyh tuojh] 1977 ls ns; le>h tk;xhA (18) WEST BENGAL Ex-MLA pension Rs. 550/- p.m. for 5 years. Additional pension @ Rs. 50- p.m. maximum of Rs. 750/- p.m. if elected in bye-election entitled for pension @ Rs. 275/- p.m.
19. It may be relevant to mention here that Parliament has also enacted the Act known as Salary and Allowances and pension of Members of Parliament.(Amendment) Act, 1988 wherein minimum period and the amount of pension are prescribed. Section 8-A of the Salary, Allowances and Pension of Member of Parliament Act, 1954, as amended from time to time reads as under :
"8A(1) (With effect from the commencement of the salary, Allowances and Pension of Members of Parliament (Amendment) Act, 1993, there shall be paid a pension of one thousand and four hundred rupees per mensem to every person who has served for a period of four years, whether continuous or not)
(i) as member of the Council of States; or
(ii) as a member of the House of the People; or
(iii) Partly as a member of the Council of States and partly as a member of the House of the people; or
(iv) as a member of the Provisional Parliament; or
(v) Partly as a member of the Provisional Parliament and -
(a) partly as a member of the Council of States and partly as a member of the House of the People, or
(b) partly as a member of the Council of States or partly as a member of the House of the People;
(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 two hundred and fifty rupees per mensem for every year in excess of five years :
Provided further that where any person has served as a Member of the House of the People twice for its duration as provided in Clause (2) of Article 83 of the Constitution, whether consecutively or not, and who is not entitled to any pension under the foregoing provisions of this sub-section, he shall with effect from the commencement of the Salary, Allowances and Pension of Members of Parliament (Amendment) Act, 1993, be entitled to a pension of one thousand and four hundred rupees per mensem :
Provided also that every person, who served for any period as a member of the provisional Parliament and who is not entitled to any pension under the foregoing provisions of this sub-section, shall with effect from the commencement of the Salary, Allowances and Pension of Members of Parliament (Amendment) Act, 1993 be entitled to a pension of one thousand and four hundred rupees per mensem.) Explanation 1. -- For the purpose of (this subsection) "Provisional Parliament" shall include the body which functioned as the Constituent Assembly of the Dominion of India immediately before the commencement of the Constitution.
Explanation 2. -- Where in any General Election held for the purpose of constituting a new House of the People, poll could not be taken in any Parliamentary constituency or any part thereof on the data originally fixed under Clause (d) of Section 30 of the Representation of the People Act, 1951 on account of snowfalls or other weather conditions of an extreme nature in such constituency or part thereof or on account of such constituency or part thereof being inaccessible for any reason, the member elected to such House from such constituency shall, be deemed, for the purposes of this sub-section, to have served as member for such House from the date of publication, under Section 73 of the said Act. of the notification relating to such House."
As per this provision also, minimum period has been laid down for entitlement to pension; but strangely enough, no minimum period has been prescribed in the Amending Act No. 18 of 1992,of State of M.P.
20. A Survey of Acts/Rules framed by State Assemblies all over country and Parliament would show that in almost alt the States, there is some minimum period prescribed for being eligible to receive pension and it varies from one year to five years. However, in the State of M.P., peculiarly enough, no minimum period has been prescribed in the Act in this regard. It has not been pointed out in that context this provision was inserted. But Section 6-A is without any minimum period having been prescribed by the Legislature. There is no justification pleaded as to why this departure was made when all over country, a minimum period has been prescribed. We made specific inquiry from Mr. Saxena who appeared for State Assembly but he could not provide any justification.
21. Our Constitution envisages three wings i.e. State Legislature, Executive and Judiciary for administration of the country and power of each wing has been deliniated in the Constitution and the judiciary has been given power to keep a watch dog over both the wings so trial they may not over-step their limits. Now having held the position that the Legislature is competent to provide for pension to its members, we have to consider whether this provision in Section 6A of the Act providing no minimum period can be said to be colourable exercise of power or not. From the survey of provisions of various Assemblies and Parliament aforementioned, it appers that minimum qualifying service has been provided therein. However, it is not understandable as to why it has been left to be included in Section 6A of the Act. It appears to be an inadvertant omission, instead of striking down this enactment which is a social measure, we leave it to the wisdom of the Slate Legislature to lay down some yard slick in the matter of fixing some minimum qualifying period for being eligible for pension, keeping in view the provisions existing in other State Assemblies/Parliament where minimum period has been prescribed. The concept of the pension is to compensate for the service rendered. The word 'pension' has been defined in OXFORD DICTIONARY, Third Edition as under :
"Pension -- an income consisting of a periodic payment made by the State to people who are above a certain age or widowed or to certain disabled people or by an employer to a retired employee."
In Twentieth Century Dictionary at page 802. the word pension has been defined as under:
"Pension -- a periodical payment, as tribute, wages, an allowance of money as a bribe for future services, as a mark of favour, or in reward of one's own or another's merits an allowance to one who has retired or has been disabled or reached old age or has been widowed or orphaned, a continental boarding house."
When such payment is made in lieu of service rendered, there should he some yards-stick as has been laid down by various Slate Assemblies and Parliament. However, since we have held that the Legislature is competent to legislate for pension for its members, we do not propose to further proceed in the matter to lay down any period for being qualified to receive pension. We leave it to the wisdom of the Legislature to lay down, keeping in view me provisions of various Assemblies and Parliament where minimum period has been prescribed for entitlement to pension. Hence we do not find any merit in these writ petitions and the same are dismissed. There shall be no order as to costs. Security if any be refunded to petitioners.
WRIT PETITION NO. 4182 of 1994 The petitioner has claimed pension on the ground that he is an ex-M.L.A. and entitled to pension but the same is not being granted to him. Since we have upheld the validity of the Act; therefore, if any pension is due to the petitioner, the same may be granted to him in accordance with law. This petition is allowed.