NARAYANLAL HIMATLAL BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A retired High Court Judge and three others have filed this public interest litigation questioning the constitutional validity of the Gujarat Legislative Assembly Members Pension Act 1984 with a further prayer to issue a writ of mandamus against the State of Gujarat restraining it from issuing any notification in the Official Gazette for appointing the date for coming into force of the impugned Act. i.e. the Gujarat Legislative Assembly Members Pension Act 1984 In and by the said Act the members of the Legislative Assembly are given the opportunity of receiving pension of Rs. 300.00 who have served as members for a term of office of five years whether before or after such commencement and whether continuously or not. The Act further provides that where any person has served as aforesaid for a period exceeding five years he will be paid an additional pension of Rs. 60.00 per month for every year of such service in excess of five years and that however the pension payable shall not exceed Rs. 600.00 per month. There is a further provision in the Act that in case the Assembly is dissolved before the expire of its duration of five years a member of such Assembly shall for the purposes of this Act be deemed to have served as such for a term of office of five years. We do not think it is necessary to elaborate the other provisions of the Act for the purpose of the present case.

(2.) The main thrust of the argument is that the Constitution has provided certain emoluments specifically for certain functionaries and that the present Act enabling the State Government to pay pension to the members of the Legislative Assembly will go against the spirit and substance of the Constitutional provisions. It is further contended that by implication there is an ouster of payment of pension to the members of the Legislative Assembly and as such the Act enabling the payment of pension to the members of the Legislative Assembly is ultra vires the Constitution. Elaborating upon this main argument Mr. N. H. Bhatt the party-in-person submitted that even though the Constitution under Article 59(3) speaks only of such emoluments allowances and privileges as will be determined by Parliament available to the President of India the Presidents Pension Act 1951 goes against the Constitutional provisions but he says he is not concerned with regard to the payment of pension to the President of India. The party-in-person also pointed out Article 97 which deals with salaries and allowances of the Chairman Deputy Chairman Speaker and Deputy Speaker of the Parliament and also Entry 73 in List I of the Seventh Schedule and stated that there is no mention of-pension payable to the Vice-President and others. Likewise the party-in person pointed out Article 75(6) read with Entry 73 in List I of the Seventh Schedule and stated that the same deal with salaries and allowances of Ministers and they do not speak about pension. In such cases according to the party-in-person no pensioner benefit is available to such functionaries. According to the party-in-person-Article 76 states only remuneration to the Attorney General. Article 106 read with Entries 73 and 74 in List I of the Seventh Schedule deal with salaries and allowances to the Members of Parliament Article 158 states that the Governor shall be entitled without payment of rent to the use of his official residence 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 privileges as are specified in the Second Schedule Article 165(3) states that the Advocate General shall receive such Remunerated as the Governor may determine and Article 195 deals with salaries and allowances of the members of the Legislative Assembly and in all these Articles according to the party-in-person there is no mention of paying any pension. in the other hand the party-in-person states that Article 125 deals with salaries etc. of Supreme Court Judges and in that there is mention of payment of pension which will be as determined by or under law made by Parliament from time to time. In this connection he also referred to Part D of the Second Schedule. Article 148(3) read with Part E of the Second Schedule deal with salary and other conditions of service which include pensioner benefit also for the Comptroller and AuditorGeneral. Article 221 deals with salaries leave of absence and pension of the High Court Judges. Thus according to the party-in-person this set of Articles definitely mentions about the pensioner benefits payable to such of those functionaries mentioned in those Articles. From these intentments the party-in-person argues that the Constitution by necessary implication clearly intended to avoid payment of pensioner benefit to the members of the State Legislature

(3.) The party-in-person further submitted that payment of pension to those who get themselves elected for the purpose of serving the people for a limited term will be a very great strain on the State Exchequer and cannot be countenanced since it is against the spirit and intentment of the constitutional provisions.