CHANDRAKANT MULJIBHAI PARIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) .Against the inaction of the Government of Gujarat in framing the Rules qua the pension for the Members of the Gujarat Legislative Assembly, petitioner the Ex-M.L.A. by filing this petition under Art. 226 of the Constitution of India, seeks appropriate writ directing the Government to frame the Rules, publish the same and decide his application in that regard passing appropriate order etc.

(2.) . The matrix of the facts first be stated. The petitioner was elected as the Member of the Gujarat Legislative Assembly from Baroda City Constituency in the year 1967 and served as Member of the Assembly for the full term of 5 years. He was again elected when elections were held in 1972 and served as a Member of the Assembly for the full term of 5 years. The Gujarat Legislative Assembly passed an Act known as "The Gujarat Legislative Assembly Members' Pension Act, 1984 (for short, "the Act"). It was to come into force on such day the Government of Gujarat might by notification in official gazette appoint. The State Government then decided to bring the Act into force in 1989. The assent of His Excellency, the Governor of Gujarat was obtained on 20th February, 1986. The Government then decided to bring the Act into force from 15th August, 1989. The Act was then published in the Government Extra-ordinary Gazette dated 8th August, 1989, and the same has been brought into force from 15th August, 1989. As per Sec. 3 of the Act, the petitioner was entitled to the pension at the rate of Rs. 300/- per month and also the additional pension as per the Proviso to Sec. 3 of the Act. The petitioner then applied for the pension, but his application is yet kept pending and no final order awarding the pension is passed on the ground that Rules which are required to be framed under Sec. 5 of the Act are not framed. The petitioner was disgustedly shocked knowing such fact that though the Act was passed in 1984 and was brought into force from August 15, 1989 the Rules under Sec. 5 were even not framed till 1992. By a letter dated 17th November, 1990 he was informed that the question of payment of pension to the Ex-M.L.As. was under active consideration. He could see that it was a trite-letter. Because of the inaction on the part of the Executive in framing the Rules the petitioner could see that the legal right to have the pension which he acquired under the Act was being impaired and denied. It was the bounden duty of the Executive to carry out the mandate of the Legislature and frame the Rules within reasonable time. It cannot put off the work of framing of the Rules to unreasonable length of time at its pleasure and sweet-will or under any pretext. At present, the petitioner is aged 65 years and if the Government is not framing the Rules and goes on delaying in the gruesome manner or shrewdly, at present it has been doing, he fears that he would not be able to get the pension during his lifetime. His legitimate right cannot be denied by the Government on the ground that the Rules are not framed. The Gujarat Ex-M.L.A. Council has been formed by the former M.L.As. and several members of that Council have also sending the applications prayed for the pension. The Government has no right to defeat the right the Ex-M.L.As. have acquired under the Act to get the pension. Regardless of the framing of the Rules, he is entitled to pension as the requirements of Sec. 3 of the Act are satisfied in his case. The State Government has therefore no justifiable reason to deny the payment of pension on any ground or on the ground that the Rules are not framed. Despite considerable attempts, when the Government has denied to make the payment of the pension, the petitioner is constrained to file this application for a direction to the Government of Gujarat to frame the Rules and publish the same under Sec. 5 of the Act, take just decision on his application for pension pending at present within the time granted and make the payment of the pension etc.

(3.) . The learned Advocate representing the petitioner submits that it is the right of the petitioner and several other M.L.As. to have the pension which they have acquired under Sec. 3 of the Act. That right to have the pension cannot be denied or jeopardised by the Government by avoiding to frame the Rules. It is the bounden duty of the Government to carry out the mandate of the Legislature and frame the Rules within reasonable time. If within reasonable time the Rules are not framed, this Court can issue the direction to the Government to frame the Rules within specified time. The right to pension granted by the Legislature enacting the Act may not be palatable to some Section of the society or some persons because of a particular political philosophy or ideology they may have bred, but that cannot be a ground to mar the right granted. It is not that some thing strange or unusual has been done by the Legislature. Even the Members of the Parliament and Members of the Legislative Assemblies of different States in India get the pension under the different Acts passed by other State Legislatures or the Parliament. He then submitted what amount of pension is being paid in fact to different M.L.As. in different States which can be tabulized as under : <FRM>JUDGEMENT_712_GLR1_2001Html1.htm</FRM> <FRM>JUDGEMENT_712_GLR1_2001Html2.htm</FRM> <FRM>JUDGEMENT_712_GLR1_2001Html3.htm</FRM> It is further contended that large numbers of the Ex-M.L.As. belong to middle class or the poor class and their right to have the pension when denied or marred by the Government on one or the another pretext, it is now the most ripe time for the Court to play the effective role exercising the powers under Art. 226 of the Constitution. The Executive cannot be allowed to defy the legislative mandate by not framing the Rules and thereby frustrating the Act and right the M.L.As. have acquired.