Puran Chand Azad v. State of Haryana

Judgment

1. Heard. Order dated 8.3.2010 dismissing the appeal for non-prosecution is recalled.

2. This appeal has been preferred against order of learned Single Judge dismissing the writ petition of the appellant questioning amendment to Section 7A of the Haryana legislative Assembly (Allowances and Pension of Members) Act, 1975 (the 1975 Act) by the Haryana Legislative Assembly (Allowances and Pension of Members) Act, 1998 (the 1998 Act).

3. Case of the appellant is that he was elected as Member of the Legislative Council in the year 1952 for six years. He retired after two years. Under the 1975 Act, provision for pension was incorporated for every person who served for a period of five years but no provision was made for those who served for less than five LPA No.31 of 2006 2 years. An amendment was incorporated in 1978 to substitute the words ‘five years’ by ‘upto five years’. Thereafter, in the year 1998, there was further amendment providing for pension of Rs.1400/- for members who may have served upto two years and higher pension for other members.

4. Contention raised in the writ petition was that classification of members based on the length of period served was arbitrary and all members of the Legislature should be treated at par irrespective of the period for which they served.

5. In the reply filed, classification based on the period of service was justified as reasonable and non-discriminatory.

6. Learned Single Judge rejected the plea of discrimination holding:- “Article 14 only prohibits the class legislation but it does not prohibit the reasonable classification within the class for a purpose to be achieved. In order to pass the test of permissible classification, two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differential which distinguishes person or things that are grouped together from others left out of the group and (ii) that differential must have a rational relation to the object sought to be achieved by the statute. It is well established that the legislation is competent to make sub classification within the class, but the said classification must also stand to the test of reasonableness. It is also settled that a classification may be reasonable even though a LPA No.31 of 2006 3 single individual is treated as a class by himself, if there are some special circumstances or reasons applicable to him alone and not applicable to others. In the case in hand, the legislation with an object to provide pension to the members enacted Section 7A

of the Act of 1975 for the first time in the year 1978 and every member who has served for a period of five years as a member of the Legislative council or Assembly was provided a pension. The members were classified in two categories for the purpose of granting pension. The amount of pension was fixed according to the period of tenure. The object was to grant pension to a member of a particular amount who served for a particular period. The second class was of those members who served for a period of more than five years and they were granted additional pension per mensem for every year to a maximum limit. Subsequently the various amendments were made and the amount of pension was increased. Prior to 1998, every member who has served for period upto five years was granted pension of Rs.1400/- per mensem. The petitioner was getting pension at this rate, as he has served for a period of two years i.e. less than five years. By the amendment of 1998, the class of members who have served for a period upto five years has been further divided in two sub classes i.e. the members who have served for a period upto two years and the members who have served for a period exceeding two years but not exceeding five years. The first class has been granted pension of Rs.1400/- per mensem and second class Rs.2500/- per mensem and the other LPA No.31 of 2006 4 class i.e. the members who have served for a period of more than five years were granted additional amount at the rate of Rs.500/- per mensem for every additional year. From the aforesaid classification, it is clear that the classification made by the Legislation in three classes is a clear classification without any ambiguity. The members have been defined in three classes with the object to grant pension to them according to the period of their tenure. As far as pension of the petitioner which he was getting prior to 1998 is concerned, it has not been reduced, as the members who have served for a period upto two years have been given pension at the rate of Rs.1400/- per mensem. The classification appears to have been made with an object to provide pension according to the period of tenure of a member of the Legislative Council or Assembly. No discrimination has been made between the members who have served for a period upto two years. There is no provision under the Act of 1975 that member of the first Legislative council, who retired after two years in a draw of lot, though was elected for six years, will be treated differently or will be treated as member for full term of a member whether he has to retire in draw of lots or whether he remained member for a period upto two years due to his resignation or due to the short period of an assembly, has been treated equally. The classification made by the amendment in the year 1998 in three categories is very clear. The same has been found on intelligible differential which clearly distinguishes the persons LPA No.31 of 2006 5 that are grouped together. There is no ambiguity. Clearly a classification has been made between members of the Legislative council or Assembly in three categories with an object to grant pension to the members according to the period of their tenure, meaning thereby that the classification has been made with a clear object sought to be achieved by the legislation. Therefore, I do not find any illegality or arbitrariness in the said classification. The decision of this Court in Babu Ram’s case (supra) is not applicable at all to the facts and circumstances of the instant case.”

7. We have heard learned counsel for the appellant. Only contention which has been raised by learned counsel for the appellant is that period of service cannot be basis for differential treatment and once a person has served as Member of Legislature, he must be equated with all other members irrespective of the period for which they have served.

8. We are unable to accept this submission. It is well settled that Legislature is presumed to understand the needs for classification and there is a presumption of validity attached to a legislation making classification. The burden of showing the classification to be unreasonable is on the person who alleges it and to discharge the said burden, the classification has to be shown to be irrational. The wisdom of the Legislature cannot be questioned if two views are possible. Principles for examining LPA No.31 of 2006 6 whether there is violation of Article 14 have been laid down in innumerable cases and after considering the famous cases of Budhan Choudhry v. State of Bihar, AIR 1955 SC 191, Ram Kishan Dalmia v. S.R. Tendolkar, AIR 1958 SC 538, C.I. Emden v. State of U.P., AIR 1960 SC 548, Kangshari Haldar v. State of West Bengal, AIR 1960 SC 457, Jyoti Pershad v. Administrator for the Union Territory of Delhi, AIR 1961 SC 1602 and State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad, AIR 1974 SC 1300, in In re: The Spl. Courts Bill, 1978, (1979) 1 SCC 380, a bench of seven Hon’ble Judges held as under:- “72. As long back as in 1960, it was said by this Court in Kangshari Haldar that the propositions applicable to cases arising under Article 14 'have been repeated so many times during the past few years that they now sound almost Platitudinous'. What was considered to be platitudinous some 18 years ago has, in the natural course of events, become even more platitudinous today, especially in view of the avalanche of cases which have flooded this Court. Many a learned Judge of this Court has said that it is not in the formulation of principles under Article 14 but in their application to concrete cases that difficulties generally arise. But, considering that we are sitting in a larger Bench than some which decided similar cases under Article 14, and in view of the peculiar importance of the questions arising in this reference, though the questions themselves are not without a precedent, we propose, though undoubtedly at the cost of some repetition, to LPA No.31 of 2006 7 state the propositions which emerge from the judgments of this court in so far as they are relevant to the decision of the points which arise for our consideration. Those propositions may be stated thus:

1. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination or favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.

2. The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. LPA No.31 of 2006 8

4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.

5. By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well- defined classes, it not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.

6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

7. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on LPA No.31 of 2006 9 some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.

8. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.

9. If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective inducted in the statute. If the LPA No.31 of 2006 10 administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.

10. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it, Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.

11. Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public, Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.

12. Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A LPA No.31 of 2006 11 practical assessment of the operation of the law in the particular circumstances in necessary.

13. A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination.”

9. Applying the above principles to the facts of the present case, it is seen that lower slab of pension has been given to persons who served for lesser period and higher slab of pension to those who served for longer period. Such classification cannot be held to be irrational or arbitrary. There is no ground to interfere with the order of learned Single Judge.

10. The appeal is dismissed. August 27, 2010 ‘gs’ (Adarsh Kumar Goel) Judge (Alok Singh) Judge