Orissa High Court
Priyambada Debi vs State Of Orissa And Anr. on 24 March, 1992
Equivalent citations: AIR1993ORI99, AIR 1993 ORISSA 99, (1992) 74 CUT LT 342
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT Hansaria, C.J.
1. The petitioner is an ex M.L.A. of the State. She took oath as a member of the Orissa Legislative Assembly on 28th May, 1946 and continued as such till 20th February, 1952 on which date the Assembly was dissolved. Thus, she had been a member of the Assembly for five years eight months twenty-two days. She, therefore, claims pension under the provisions of the Orissa Legislative Assembly Members' Salary, Allowances and Pension, Act, 1954 (shortly stated 'the Act') which was amended in 1977 by inserting Section 4-B in the Act making a provision for pension "to every person who has held office for a period of five years, whether continuous or not as a member of the Assembly." The petitioner having been an M.L.A. for more than five years would have been otherwise eligible to get the pension under the aforesaid provision, but for the fact that under Explanation (ii)(a) to the aforesaid section, the period preceding the 26th day of January, 1950, is not to be taken into account. Now if this date is taken as a cut-off date, admittedly the petitioner does not become entitled to get pension under Section 4-B(1). Her case is that selection of 26th January, 1950 as 3 cut-off date is arbitrary having no rational nexus with the object sought to be achieved by the aforesaid provision. She, therefore, prays that this cut-off date may be declared as violative of Article 14 of the Constitution, and as this part of the Act is severable, a direction may be given to grant her pension as visualised by the Act. It may be stated here that though initially the pension was contemplated to be paid at the rate of Rs. 300/-per month, by an amendment of 1984, this amount has been enhanced to Rs. 500/-.
2. There is no dispute at the bar that an arbitrary cut-off date cannot be fixed by a statute. It is also admitted that Article 14 takes care of such arbitrariness as well Shri Misra appearing for the petitioner has drawn our attention to certain decisions wherein a statute has been declared as ultra vires on such a ground. These decisions are Balabhau Manaji v. Bapuji Satwaji, AIR 1957 Bom 233 (FB): Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436; Basanta Kumar v. State of Orissa, 1988 (1) OLR 90 (FB) : (AIR 1988 Ori 124) and Jani Bai v. State of Rajasthan, AIR 1989 Raj 115. We are not adverting to the reasons as to why the particular cut-off date in these cases was regarded as unreasonable and arbitrary because that is a matter of fact, which would differ from case to case. Though Shri Misra has referred in this connection to B. Prabhakar Rao v. State of Andhra Pradesh, AIR 1986 SC 210 : (1985 Lab IC 1555) that case has no application, as therein exclusion of certain categories of employees from the benefit of the extended age of superannuation was regarded as arbitrary, whereas in the case at hand the question is of exclusion of M.L.As elected before 26th January, 1950.
3. Shri Patra, learned Government Advocate, contends in this connection that the choice of a date as a basis for classification cannot be always dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances, as stated in paragraph 10 of Union of India v. P. M. Works, AIR 1974 SC 2349 ; (1975 Tax LR 1223). It was further observed in this paragraph that when it is seen that a line or a point there must be, and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark. This decision was cited with approval in D.G. Gouse & Co. v. State of Kerala, AIR 1980 SC 271, in which in paragraph 18 the historical background of the Act was also taken note of in deciding whether the date in question was fixed unreasonably or was "wide of the reasonable mark". Finally, Shri Patra urges that wisdom of the Legislature in this regard is not justiciable and mere errors are not subject to judicial review; it is only its palpably arbitrary exercises which can be declared void, as stated by Justice Mc Kenna in Metropolis Theatre Company v. City of Chicago (1912) 57 L Ed 730, which was noted with, approval in paragraph 37 of Sushma Sharma v. State of Rajasthan, AIR 1985 SC 1367 : (1985 Lab IC 1899). In that case, the date fixed (25th June, 1975) was not regarded as arbitrary even though it was noted that the same may have "some odour to some people". (See para 38).
4. Before coming to the facts of the case and examining the point at issue on the touchstone of the aforesaid principles of law, we may note the decision of the Apex Court in D. S. Nakara v. Union of India, AIR 1983 SC 130 : (1983 Lab IC 1), as it deals with the case of cut-off date relating to grant of pensionary benefit. This case dealt with grant of old age pension and examined the question as to whether the date fixed in the memorandum for making available the revised pension had any rational basis, i.e., having rational connection with the object sought to be achieved by the grant of liberalised pension. After examining in detail the matter, the Court came to the conclusion that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. As to this decision, we may point out that what applies in the case of old age pension would not be proprio vigore applicable to pension to be granted to M.L.As. or, for that matter, ex-M.L.As. Shri Patra submits that Nakara's case cannot be said to have laid down as a principle of law that in any pension scheme there cannot be a cut-off date and refers in this connection to Krishna Kumar v. Union of India, AIR 1990 SC 1782 : (1990 Lab IC 1490). He also refers to Indian Ex-Services League v. Union of India, AIR 1991 SC 1182, wherein it was stated that Nakara's case has limited application and there is no scope for enlarging the ambit of that decision to cover all claims made by the pension - retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement. (See placitum A).
5. There is still another aspect of the matter to which we would like to advert before coming to the merits of the case. The same is that a classification made by a statute which is under-inclusive, in the sense that while giving benefit some persons who are similarly situated are left out, would be tolerated more by the Courts than one which is over-inclusive (i.e., including not only those who are similarly situated but others who are not so situated), as a legislative authority acting within its field is not bound to extend its regulation to all cases which it might possibly reach; and a legislature is free to recognise the degrees of necessities and it may confine the provision to those classes of cases where the need seems to be clearest. (See paragraphs 54 and 60 of State of Gujarat v. Ambica Mills, AIR 1974 SC 1300, and paragraph 12 of Shankar Birmiwal v. Union of India, AIR 1982 Raj 187 (FB)).
6. Now let us see whether the classification at hand can be struck down as violative of Article 14. It would be useful to remember in this context that there is a presumption of constitutionality of a statutory provision and in case where the same is attacked on the ground of violation of Article 14 of the Constitution, the burden lies upon him who attacks it, as stated by Das, C.J. in Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538, which is the loading decision on Article 14 and was indeed referred as "locus classicus" in paragraph 125 of Deena v. Union of India, AIR 1983 SC 1155 : (1983 Cri LJ 1602). That this is the well settled position in law would appear from what has been stated in pages 53 to 56 of D. Basu's Shorter Constitution of India, 10th Edn., wherein the learned author has referred to other decisions of the Apex Court also on this subject.
7. 26th January, 1950 is a red letter day in our history. On this day, the Constitution, which the people of India gave to themselves, came into force. To some people, 26th January is a more important date in our national history than 15th August the former having chartered a path of economic emancipation and having also conferred on the people inviolable fundamnetal rights whereas the latter had liberated the country from political serfdom. There would not be agreement on this issue as much would depend upon one's valued judgment as to whether political freedom is more important and meaningful than economic freedom. We need not dilate on this point. Suffice it to say, elections in free India were held on the basis of the provisions finding place in the Constitution which had come into force on 26th January, 1950. As such, if some benefit is sought to be given by the Act to those persons who had become M.L.As. after 26th January, 1950 by a post-constitutional statute like the one at hand, it cannot be said that the selection of the cut-off date as 26th January, 1950 is "very wide of the reasonable mark". It cannot also be said that the date is palpably arbitrary or there is no basis for the same. The historical background clearly permits, according to us, to fix this date. The date is not one "picked up out of the hat" which was the reason for this Court in regarding the date in question as arbitrary in Basant Kumar's case (supra).
8. Having considered the aforesaid aspects of the matter and keeping in view the fact that the Courts have to show more tolerance in the case of under-inclusive classification (the present being such a case) and that burden of proof while attacking the vires of a statute on the anvil of Article 14 lies with the petitioner, we would State that we are not satisfied if a ease has been made out to say that selection of 26th January, 1950 as the cut-off date for the purpose at hand is arbitrary. The plea of the petitioner is, therefore, rejected. But then, keeping in view the fact that the petitioner is said to be the only living person to claim the aforesaid benefit and is aged about 96 years and is presently struggling hard and has been even attacked by paralysis and was undergoing treatment for brain haemorrhage in the S.C.B. Medical College Hospital even last month, as would appear from her petition filed on 4-2-1992 (Misc. Case No. 890 of 1992), we arc satisfied that the present is preeminently a fit case where, to advance the cause of social justice, she should be given pension of Rs.500/- per month with effect from 26th January, 1992. This should be done within a period of one month from the date of receipt of this order and pension at this rate should be continued to be paid to the petitioner till she is alive. We have passed this order bearing in mind the decision in All India Judges' Association v. Union of India, AIR 1992 SC 165, wherein the Apex Court gave various directions to the State Governments in the interest of administration of justice, which indicates that in appropriate cases the higher Courts can give such direction as according to them is called for to secure the ends of justice, which includes social justice, in the context of that case.
9. The petition is disposed of accordingly.
K.C. Jagadeb Roy, J.
10. I agree.