T R ATRI Vs. STATE OF J&K

JUDGEMENT

(1.) PETITIONERS herein have filed this petition for quashing the provision of sub -snc. 2 of sec. 4 of J&K State Legislature Members Pension Act. 1984 as amended by amending Acts of 1985 and 1987 being ultra vires of Art. 14 of the constitution of India and further for issuing direction to State -respondent to release the pension to them in accordance with the rates prescribed by the aforesaid Act from the date when it came into force.

(2.) THEIR case is that petitioner No 1 was a Judicial officer of the rank of District & Sessions Judge in the year 1977 when he sought his premature retirement from judicial service. He was thus granted premature retirement with effect from July 20, 1977. He then was sworn in as Member of Council of Minister and put incharge of Law and Revenue as a Minister of State and was subsequently elected to the Legislative Council where he served for a period of about six years as Member Legislative Council and for a period of more than five years as member of council of Ministers. Petitioner No 2 was Deputy Director of Field Survey Organization in the year 1972 when he sought premature retirement from Govt. service as he was set up as a candidate on behalf of Indian National Congress party to contest J&K State Assembly elections from Udhampur constituency which he won. He served as member Legislative meeting intended for a term of five years from 1972 to 1977.

(3.) PETITIONERS further case is that J&K State Legislative Members Pension Act, 1984, being Act No. 3 of 1984 (hereinafter called Act of 1984) allowed pension to those who had served for a period of six years as members of Legislative Assembly or as member Legislative Council, after 11th July, 1977. Sub/Sec. 2 of sec 4 of this Act provides that if any person entitle to pension under sec. 3 receives any pension from the Central Govt. or any corporation owned or controlled by the Central Government or any local authority under any law or otherwise and if the amount of such pension is equal to which he is entitled under sec. 3 such person would not be entitled to any pension under that section and where the amount of pension which he receives under such law or otherwise is less than that to which he is entitled under sec. 3, such person shall be entitled to pension under that section only to amount which falls short of the amount of pension to which he is otherwise entitled under that section. This provision includes recipients of pension from the State Govt. Central Government or the corporation owned by the Central Government or the State, if the amount of pension that they receive exceeds the amount of pension which they would have been entitled to under sec. 3 of the Act. They are receiving pension from the State Government which were more than the pension which they would be entitled to under sec. 3 and as such they are entitled to receive any pension under the aforesaid Act, Conferment of the benefit of pension only to those who had remained as members of legislature after 117 -1977 was totally discriminatory and arbitrary on the ground that there was no reasonable or rational hypothesis for classifying members. The babsurdity of this classification was soon realized, with the result that by J&K State Legislative members pension (amendment) Act 1985 (hereinafter called Act of 1985), benefit of pension was made available to every person who had served for a period of five years as member of constituent Assembly of the State or member of Legislative Council of state or member of Legislative Assembly or partly as member Legislative Council and partly as member Legislative Assembly.