PRIYAMBADA DEBI Vs. STATE

JUDGEMENT

(1.) The petitioner is an ex M.L.A. of the State. She took oath as a member of the Orissa Legislative Assembly on 28/05/1946 and continued as such till 20/02/1952 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 S. 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 S.4-B(1). Her case is that selection of 26/01/1950 as a 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 Art. 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 Art. 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) 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 26/01/1950.

(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 and 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 Me 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, (1985 Lab IC 1899). In that case, the date fixed ( 25/06/1975) was not regarded as arbitrary even though it was noted that the same may have "some odour to some people".