TMI Blog1987 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... irement, the learned Single Judge disallowed the appellant's claim for pension as a Member of the State Legislative Assembly under the proviso to sub-s. (1) of s. 6B of the Himachal Pradesh Legislative Assembly (Allowances Pension of Members) Act, 1971 on the ground that no part of the cause of action against the State of Himachal Pradesh arose within the territorial jurisdiction of the High Court under Art. 226 of the Constitution. The facts. The appellant herein Bhagat Ram Sharma, has had a very distinguished record of public service. In 1937, he was enrolled as an Advocate at Dharamshala and in that year he contested the general elections to the Punjab Legislative Assembly as an independent candidate from the Kangra West General Constituency. He was returned successfully and later joined the Indian National Congress. After the outbreak of the second world war, the Assembly had a longer life than its normal tenure and it was not till 1946 that fresh elections were held. The appellant contested the election from the same constituency and was again returned as the successful candidate to the newly-elected Assembly. Before the expiry of the normal terms of that Assembly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was elected to the Punjab Legislative Assembly from the Kangra West General Constituency in the year 1937, no monthly allowance or pension was payable to the Members of the Legislative Assembly. Similarly, when the appellant was appointed to be a Member of the Punjab State Public Service Commission, there was no provision for grant of pension to a Member of the Public Service Commission, who at the date of his appointment was not in the service of the Central or a State Government. However, with the passage of time, two important changes were brought about with respect to pensionary benefits. The Himachal Pradesh Legislative Assembly (Allowances Pension of Members) Act, 1971 ('Himachal Pradesh Act' for short) was brought into force w.e.f. January 25, 1971. The expression 'Member'is defined in s. 2(c) to mean a member of the Assembly, other than a Minister, Deputy Minister, Speaker or Deputy Speaker. Section 6B was inserted by the Himachal Pradesh Legislative Assembly (Allowances of Members) (Amendment) Act, 1976 and consequential changes were brought about. The Act was first intituled as the Himachal Pradesh Legislative Assembly (Allowances of Members) Act, 1971 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional pension of fifty rupees per mensem for every year in excess of five, so, however, that in no case pension payable to such person shall exceed five hundred rupees per mensem. After the conclusion of the hearing, we find that the amount of pension payable to a Member of the State Legislative Assembly has been increased both in the State of Himachal Pradesh as well as in the State of Punjab. By the Himachal Pradesh Legislative Assembly (Allowances Pension of Members) (Amendment) Act, 1986, the minimum pension as provided by s. 6B has been raised to ₹ 500 and the maximum pension as specified in the second proviso thereto from ₹ 500 to ₹ 1000. The Punjab Legislative Assembly has enacted the Punjab State Legislature Members (Pension and Medical Facilities Regulation) (Amendment) Act, 1986 and by a new sub-s. (1B) the pension of ₹ 300 as specified in s. 3(1), has been enhanced to ₹ 500 and the maximum pension of ₹ 500 as specified in the proviso, enhanced to ₹ 1000. There was also a change in the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 which were brought on the statute book on March 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment made in 1972 was not given any retrospective effect. The State Government of Himachal Pradesh by letter of the Secretary to the Himachal Pradesh Vidhan Sabha dated October 26, 1982 intimated the decision of the State Government that he was not eligible to the grant of pension under s. 6B of the Himachal Pradesh Act. For the redressal of his grievances, the appellant approached the High Court under Art. 226 of the Constitution. As already adumbrated, the learned Single Judge has partly allowed the writ petition directing the State Government of Punjab to pay a pension of ₹ 400 per mensem to the appellant w.e.f. August 10, 1972 i.e. the date on which Regulation 8(3) was brought into force. He however repelled his claim for payment of such pension as such Member from January 2, 1959, the date of his retirement, on the ground that in the absence of any provision giving to it a retrospective effect, Regulation 8(3) merely because it had been 'substituted' could not be treated to relate back to the appointed day i.e. November 1, 1956. He also declined to grant any relief against the State of Himachal Pradesh based upon s. 6B of the Himachal Pradesh Act on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sembly against the State of Punjab under s. 3(1) of the Punjab Act. We shall first deal with the question of payment of pension to the appellant as a Member of the State Legislative Assembly. As regards the liability of the State of Punjab to pay such pension to the appellant under s. 3(1) read with the proviso of the Punjab Act, we find that the appellant has laid no foundation for any such claim in the writ petition. There is no such point taken in the special leave petition as well. It is extremely doubtful whether the appellant can claim pension as a Member of this State Legislative Assembly from the State of Punjab in view of the constitutional changes brought about. The Kangra West General Constituency from which the appellant was elected to the Punjab Legislative Assembly and later to the Joint Punjab Legislative Assembly, is by reason of sub-s. (2) of s. 10 of the State of Himachal Pradesh Act, 1970 deemed to be a constituency of the Legislative Assembly of the State of Himachal Pradesh. The liability to pay pension to a Member of the State Legislative Assembly elected from a constituency which now forms part of the Legislative Assembly of Himachal Pradesh, cannot possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of s. 6B(1) read with the second proviso of the Himachal Pradesh Act. Inasmuch as the State of Himachal Pradesh has chosen not to enter appearance in these proceedings, we refrain from expressing any final opinion on the question. In view of the foregoing, the appellant is at liberty to move the State Government of Himachal Pradesh afresh for grant of pension under s. 6B(1) of the Act read with the second proviso, failing which he may file a petition in the Himachal Pradesh High Court under Art. 226 of the Constitution for grant of an appropriate writ or direction. That takes us to the next and last contention of the appellant that Regulation 8(3) of the Regulations having been 'substituted' by cl. (3) of the Punjab State Public Service Commission (Conditions of Service) (First Amendment) Regulations, 1972 must be read along with Regulation 1(2) and therefore deemed to have come into force on November 1, 1956, the appointed day, and consequently, the appellant was entitled to pension as a retired Member of the Public Service Commission from January 2, 1959, the date of his superannuation, and not August 10, 1972, the date when the amendment came into effect. We are af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receive a larger operation unless you find some reason for giving it. Now, it would be seen that cl.(5) similarly 'substituted' new Regulation 6(1) dealing with the salary and allowances payable to the Chairman and other Members of the Public Service Commission, and underneath appears the following: Notwithstanding anything contained in the Regulations, clause (i) of the proviso to sub- regulation (I) shall be deemed to have come into effect from 1.11.1956. Nothing prevented the Governor while issuing the aforesaid order dated August 10, 1972 from making a similar provision with regard to the newly-added Regulations 8(3). It is therefore manifest that the newly-added Regulation 8(3), in the absence of any provision giving it a retrospective operation, cannot prima facie bear a greater retroactive effect than intended. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between 'repeal' and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct would replace a previous instrument. But in the case of a legislative enactment, there would be no repeal of an existing law unless the substituting act or provision has been validly enacted with all the required formalities. In State of Maharashtra v. The Central Provinces Manganese Ore Co. Ltd., [1977] 1 SCR 1002 a three Judges Bench repelled the argument that since the word 'substituted' was used in the Amending Act of 1949. It necessarily followed that the process embraces two distinct steps, one of repeal and another of a fresh enactment. In that case, the whole legislative process termed 'substitution' proved to be abortive inasmuch the Amending Act did not receive the assent of the Governor General under s. 107 of the Government of India Act, 1935 and was thus void and inoperative. Distinguishing the two earlier decisions is Firm A.T.B. Mehtab Majid Co. v. State of Madras, [1963] Suppl. 2 SCR 435 and Koteshwar Vittal Kamath v. K. Rangappa Balica Co. [1969]3 SCR 40 the Court observed that the mere use of the word 'substituted' does not ipso facto or automatically repeal a provision until the provision which is to take its place is constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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