IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 1873 of 2010 (O&M) Date of Decision: August 30, 2011 Kirpal Singh Randhawa …Appellant Versus Election Commission of India and others …Respondents CORAM: CORAM: CORAM: CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE HON’BLE HON’BLE HON’BLE MR. MR. MR. MR. JUSTICE JUSTICE JUSTICE JUSTICE GURDEV SINGH GURDEV SINGH GURDEV SINGH GURDEV SINGH Present: Mr. Arun Singla, Advocate, for the appellant. Mr. Suvir Sehgal, Addl. AG, Punjab, for respondent Nos. 2 and 3. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. M.M. M.M. M.M. KUMAR, J. KUMAR, J. KUMAR, J. KUMAR, J. 1. The instant appeal under Clause 10 of the Letters Patent is directed against judgment dated 14.1.2010 rendered by the learned Single Judge rejecting the claim of the petitioner-appellant for grant of pension being member of the State Legislative Assembly. The claim of pension was made on the basis of the Punjab State Legislative Members (Pension and Medical Facilities Regulations) Act, 1977 and the rules framed thereunder in 1984. 2. It is admitted as a fact that the election of the petitioner- appellant was set aside by this Court on the ground that the nomination papers filed by the election petitioner were illegally rejected on the plea that he was a Development Officer in the Life Insurance Company. The judgment of this Court eventually travelled to Hon’ble the Supreme Court and a 5-Judge Constitution LPA No. 1873 of 2010 (O&M) 2 Bench in the case Kirpal Singh Kirpal Singh Kirpal Singh Kirpal Singh v. v. v. v. Uttam Singh Uttam Singh Uttam Singh Uttam Singh, AIR 1986 SC 300 , AIR 1986 SC 300 , AIR 1986 SC 300 , AIR 1986 SC 300, expressed the opinion that the appeal filed by the appellant Kirpal Singh had become infructuous because after setting aside his election, three more general elections had taken place. The question, therefore, raised in the writ petition before the learned Single Judge was whether grant of limited right to attend the Assembly Session without marking his presence, would entitle the petitioner-appellant to claim salary on the fiction that he should be deemed to be a Member of the Legislative Assembly. Learned Single Judge rejected the aforesaid submission made by the learned counsel for the petitioner-appellant by holding as under:- “ 2. By the way in which the interim order operated, all that the petitioner did during his tenure was he attended the assembly but did not participate in any deliberations of the assembly; he did not vote and he did not draw any remuneration at that time. He was literally dummied during his entire tenure. If the Hon’ble Supreme Court had ultimately dealt with that issue and found that election ought not to have been set aside, it could become possible for the petitioner to claim pension. In the ultimate dispensation, the Supreme Court did not more than setting aside the directions as to costs and it had also set out a particular procedure to be followed in future namely that where the election is set aside not on the basis of the mal-practice indulged by the candidate who was declared elected but by virtue of some improper rejection of nomination of other candidates, the Court of Appeal should clearly allow the candidate to continue as a member during the pendency LPA No. 1873 of 2010 (O&M) 3 of the proceedings so that the constituency will have the benefit of effective representation at the assembly. This could only apply for the future. The High Court’s decision setting aside the election itself was not set aside. It is doubtful whether it could be stated that he was a member of the legislative assembly in order to entitle him to claim the benefits of pension. If he did not vote and he did not participate in the deliberations but merely attended the proceedings, he will not be treated as a member of the assembly to entitle him to the benefits of pension.” 3. Having heard learned counsel we are of the considered view that the findings recorded by the learned Single Judge do not suffer from any legal infirmity warranting admission of the appeal. Once the view taken by this Court has attained finality and the election of the petitioner-appellant as Member of the Legislative Assembly has been set aside, which continued to be the verdict, then by fiction he cannot be deemed to be the Member. If he is not the Member then the benefit of pension under the aforesaid provisions and the rules would not be available to him. The appeal is wholly without merit and the same is hereby dismissed. (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) JUDGE JUDGE JUDGE JUDGE (GURDEV SINGH GURDEV SINGH GURDEV SINGH GURDEV SINGH) August ugust ugust ugust 30 30 30 30, , , , 20 20 20 2011 JUDGE JUDGE JUDGE JUDGE Pkapoor