C.W.P.No.7206 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.7206 of 1988 Date of Decision:- 28th .02.2011 Dr.Bhim Singh Dahiya ....Petitioner(s) vs. State of Haryana and another ....Respondent(s) *** CORAM:HON'BLE MR.JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Paramjit Singh Dhaliwal, Advocate, for the petitioner. Mr.Randhir Singh, Additional Advocate General, Haryana. *** Augustine George Masih, J. Petitioner in this writ petition is a former Member of a Legislative Assembly, Haryana, to which he was elected in May 1982 from 42 Rohar Assembly Constituency, District Sonepat and continued as such for a full term of 5 years till the general elections were held on 17.6.1987. He claimed pension under the Haryana Legislative Assembly (Allowances and Pension of Members) Act, 1975 (hereinafter referred to as 'the 1975 Act') which was denied to him on the ground that he was drawing Rs.3500/- per month as salary from Kurukshetra University vide order dated 15.12.1987 (Annexure P-2) and, thus, not entitled to pension as an ex- MLA under the provisions of Section 7-A (2) of the 1975 Act. The petitioner, thus, filed the present writ petition challenging the vires of C.W.P.No.7206 of 1988 -2- Sections 7-A (2) (iii) and 7-A (3) of the 1975 Act being violative of Articles 14 and 19 of the Constitution of India. He had further claimed therein that the denial of pension to the petitioner under Section 7-A (2) (iii) of the 1975 Act was misconceived as he was not covered under any of the categories enumerated therein which disentitles a person to pension. The petitioner was a Professor of English in Kurukshetra University, Kurukshetra, prior to his election as a Member of the Legislative Assembly and after he ceased to be so, he rejoined his service. The Kurukshetra University would not fall within any of the categories mentioned in Section 7-A (2) of the Act which disentitles a person who is employed on salary under the Government(s) or authorities as specified therein, to be not entitled to pension under the 1975 Act. Upon notice having been issued, the respondents have filed reply wherein it has been stated that the petitioner was not entitled to pension as his case was covered by the term “local authority” as provided under Section 7-A (2) (iii) of the Act which disentitles a person to claim pension. University is covered by the term “local authority” and as the petitioner was employed on salary with Kurukshetra University, he was not entitled to pension under the 1975 Act. It has further been stated that the petitioner on his retirement from Kurukshetra University from the post of Professor in English with effect from 30.4.1998 on attaining the age of superannuation has been granted pension with effect from 1.5.1998 as per the amended provisions of the 1975 Act and is not entitled to any further benefit. Counsel for the petitioner at the very outset gave up the challenge to the vires which has been posed to Sections 7-A (2) (iii) and 7- C.W.P.No.7206 of 1988 -3- A (3) of the 1975 Act by stating that with the amendment of Section 7-A (3) of the 1975 Act, he does not have any grouse left qua this Section as he has been granted pension after his retirement from the University with effect from 1.5.1998 which earlier had disentitled him as per the unamended provisions. As regards Section 7-A (2) (iii) of the 1975 Act, he contends that even if the provisions are taken to be valid, the case of the petitioner being not covered under the same, the claim of the petitioner could not have been denied by the respondents vide order dated 15.12.1987 (Annexure P-2). He contends that local authority has not been defined under the 1975 Act and, therefore, in the absence of such a definition, the provisions of General Clauses Act as applicable to Haryana, will apply, according to which, 'University' is not included in the local authority. The petitioner being not covered by the above provision, would be entitled to the benefit of pension under the 1975 Act. On the other hand, counsel for the State vehemently contends that the Kurukshetra University came into existence under a Statute. It being a statutory Authority, would be covered by the term “local authority” as contained in Section 7-A (2) (iii). He further contends that University is a State as held by a Full Bench of the Patna High Court in the case of Umesh Chandra Sinha vs. V.N.Singh and others, AIR 1968 Patna 3 and, thus, the petitioner who is employed with the statutory authority of the State would be covered by the term State as well as local authority which would disentitle the petitioner to his claim for pension. Accordingly, he prays for dismissal of the writ petition. We have heard counsel for the parties and have gone through C.W.P.No.7206 of 1988 -4- the records of the case. Although the petitioner had challenged the vires of Sections 7- A (2) (iii) and 7-A (3) of the 1975 Act in the writ petition but in the light of the statement made by the counsel for the petitioner whereby the challenge to the vires have been dropped, in normal course, as per the High Court Rules and Orders, the challenge to the vires being no more, the matter should have been heard by a learned Single Judge for adjudication but keeping in view the fact that the case is old one and further delay is not brooked especially where the petitioner is claiming pension, we have taken up the case for final disposal with the consent of counsel for both the parties. The facts as stated above are not in dispute in this case. As of now, the petitioner is drawing pension regularly with effect from 1.5.1998 under the 1975 Act. In the light of the above, the dispute has narrowed down to the claim of the petitioner for pension from the date he ceased to be a Member of the Haryana Vidhan Sabha i.e. July 1987 till 30.4.1998 as from 1.5.1998 onwards, the petitioner has been granted pension by the respondents. The decision on this dispute is dependent upon the interpretation of the term “local authority” as finds mentioned in Section 7- A (2) (iii) of the 1975 Act. Section 7-A (1) and (2) read as follows:- “7A. Pension. - (1) Every person shall be paid a pension of five thousand rupees per mensem if he has served as a member for a period not exceeding five years and an additional pension of one thousand rupees per mensem for every additional year or part thereof exceeding a C.W.P.No.7206 of 1988 -5- period of five years and if the period of the first membership falls less than the term of five years of the Assembly, it will be treated as full period of five years for the purpose of pension : Provided that family pension shall be admissible, as may be prescribed, to surviving spouse and after his or her death to the children (up to the age of eighteen years) of members who had been drawing pension under this Act. (2) Where any person entitled to pension under sub- section (1)- (i) is elected to the office of the President or Vice- President or is appointed to the office of the Governor of any State or the Administrator of any Union Territory; or (ii) becomes a member of the Council of States or the House of the People or any Legislative Assembly of a State or Union Territory or any Legislative Council of a State or the Metropolitan Council of Delhi constituted under section 3 of the Delhi Administration Act, 1966; or (iii) is employed on a salary under the Central Government or any State Government, or any corporation owned or controlled by the Central Government or any State Government, or any local authority or becomes otherwise entitled to any remuneration from such Government, corporation or local authority, C.W.P.No.7206 of 1988 -6- such person shall not be entitled to any pension under sub-section (1) for the period during which he continues to hold such office or as such member, or is so employed, or continues to be entitled to such remuneration : Provided that where the salary payable to such person for holding such office or being such member or so employed, or where the remuneration referred to in clause (iii) payable to such person, is, in either case, less than the pension payable to him under sub-section (1), such person shall be entitled only to receive the balance as pension under that sub-section.” A perusal of the above would show that sub-section (1) of Section 7-A grants pension to the Members of the Legislative Assembly. Sub-section 2 is a non abstante clause which disentitles a Member of the Legislative Assembly to any pension under sub-section (1). Clause (iii) of sub-section (2) deals with a Member of the Legislative Assembly who is employed on a salary under the Central Government or any State Government Corporation or any Corporation owned or controlled by the Central or State Government or any local authority or otherwise becomes entitle to any remuneration from such Government Corporation or local authority, shall not be entitled to any pension under sub-section (1) for the period during which he continues to be employed and entitled to remuneration. To put it in other words, if a Member of the Legislative Assembly is not employed on a salary with or under the above mentioned category of employers, he would be entitled to pension. It is the stand of the respondents that the petitioner being employed under the University as a C.W.P.No.7206 of 1988 -7- Professor is covered by the term “local authority” disentitling him to the benefit of pension as claimed by him. It is admitted by the counsel for the parties that the term “local authority” has not been defined under the 1975 Act or the Haryana Legislative Assembly Members (Pension) Rules, 1978 framed under the 1975 Act. The Court, thus, has to fall back upon the provisions of The General Clauses Act, 1897 which in Section 3 (31) defines local authority as follows:- “local authority” shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund;” A perusal of the above suggests that an Authority in order to be a local authority must imbibe in itself the characteristics and essentialities as are possessed by the Municipal Committee, District Board, upto the Court of Commissioners etc. It may not contain all the distinctive attributes of the above entities but some of these characteristics are required to be there so that it falls within the term “local authority”. The Hon'ble Supreme Court based on the principles of Ejusdem Generis has laid down the following essential components so that an institution or body can be included within the ambit of the term “local authority” as defined by Section 3 (31) of the General Clauses Act in the case of Union of India vs. R.C.Jain, 1981 (2) SCC 308 relevant of which reads as follows:- C.W.P.No.7206 of 1988 -8- “2.xxxx xxxx xxxx xxxx? First, the authorities must have separate legal existence as Corporate bodies. They must not be mere Governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be. Next, they must be entrusted by Statute with such Governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, markets, transportation, social welfare services etc. etc. Broadly we may say that they may be entrusted with the performance of civic duties and functions which would otherwise be Governmental duties and functions. Finally, they must have the power to raise funds for the furtherance of their activities and the fulfilment of their projects by levying taxes, rates, charges, or fees. This may be in addition to moneys provided by Government C.W.P.No.7206 of 1988 -9- or obtained by borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority.” Kurukshetra University was incorporated under the Kurukshetra University Act, 1956. Thereafter, Kurukshetra University Act, 1986 was enacted and the Kurukshetra University Act, 1956 was repealed. At the time when the petitioner could make a claim for grant of pension i.e. in the year 1986, the Kurukshetra University Act, 1986 (hereinafter referred to as 1986 Act) was in force. Applying the test as spelt out by the Hon'ble Supreme Court whether University would fall within the definition of “local authority”, the 1986 Act will have to be gone into. The Haryana Act No.28 of 1986 was enacted by the Legislature of the State of Haryana which received the assent of the Government of Haryana on 18.12.1986 and was published in the Haryana Government Gazette on 23.12.1986. As per Section 3 of the Act, Kurukshetra University is to be a body corporate. It shall have perpetual succession and a common seal with power to acquire, hold and dispose of property, and to contract, and may by the said name sue or to be sued. Powers and duties have been elaborated in Section 6 which primarily deals with education and advancement of the same and further, to hold examination and grant the degrees, diplomas and other academic distinctions or titles to the persons, institute prizes, medals, research studentships, exhibitions and fellowships. It can receive gifts, donations and benefactions and transfers of moveable and immoveable property not only from the Government but from transferors, donors or testators, as the case may be. It can borrow money with the approval of the Government on the security of the property of the University for the purpose of the C.W.P.No.7206 of 1988 -10- University. It has the authority to frame statutes, ordinances or regulations and alter, modify and rescind the same for all and any of the purposes mentioned in Section 6 of the Act. The Governor of Haryana by virtue of his office shall be the Chancellor of the University and as per Section 10 has a right to cause inspection of the University as also the enquiry to be made with the administration of finances of the Universities, colleges or institutions. As per Section 22 of the 1986 Act, University can charge fee for courses of study in the University and for admission to examinations, degrees and diplomas of the University. The annual accounts as per Section 26 and the balance sheet of the University is audited by the Examiner, Local Fund Accounts, Haryana or any other Auditor that may be appointed by the Government. The Court of the University apart from having ex-officio members, who, apart from the Chancellor and Vice Chancellor, are officials of the Government and the University consists of other members, two of whom are elected by the Haryana Vidhan Sabha from amongst its members and the Professors, teachers and various other different fields some of whom are elected. A perusal of the above would show that the basic characteristics as spelt out by the Hon'ble Supreme Court stand fulfilled by the Kurukshetra University to be included in the term “local authority” as defined under the General Clauses Act. Education being a concurrent list, the State Government shares the responsibility for development of education in the State. The State policy as well as the Central policy on education is to be implemented in letter and spirit since the State Government has primarily been given the responsibility for the development of the education in the State, the functions performed by the University C.W.P.No.7206 of 1988 -11- being primarily education services which usually is entrusted to the municipal bodies, it fulfills the test thereof. It has the authority to impose fee for generation of its funds. It has the autonomy as far as its functions are concerned and it being an independent legal entity, it passes that test as well. It has the authority to raise funds for furtherance of its activities either by borrowing it or accepting it by donations or grants which may be received from the Government and other sources. The control and management of these funds is with the University; however, subject to audit by the State of Haryana. It also has the power to frame Statutes, Ordinances and Regulations for furtherance of the purposes as provided for in Section 6 of the Act, the Court being one of the primary authorities of the University where elected members find representation. Thus, all the essential components are found in the Kurukshetra University which would bring it within the definition of “local authority” under the General Clauses Act. It is not in dispute that the Kurukshetra University is a State for the purpose of Article 12 of the Constitution, it being a public statutory body created under the appropriate Act of the Legislature and empowered to make Statutes, Ordinances and Regulations by the Legislature and would fall within the term other authorities as defined in Article 12 of the Constitution. Accordingly, it is held that Kurukshetra University is a local authority. If the Kurukshetra University is a local authority, the question which arises for consideration is whether the petitioner in the light of Section 7-A (2),(iii) of the 1925 Act would be entitled to pension, which disentitles a person to any pension who is employed on a salary under the Central or any State Government or any Corporation owned or controlled C.W.P.No.7206 of 1988 -12- by the Central Government or any State Government or any local authority. It is not in dispute that after the general elections were held on 17.6.1987 and the new Haryana Legislative Assembly was constituted, the petitioner ceased to be a member of the Legislative Assembly and thereafter he rejoined Kurukshetra University as a Professor and was paid salary by the University. If that be so, the claim of the petitioner for pension from July 1987 till 30.4.1998 cannot be granted as he was not entitled to the same as per Section 7-A (2) (iii) of the 1925 Act. In view of the above, we are left with no option but to reject the claim of the petitioner and dismiss the writ petition. Ordered accordingly. ( RANJAN GOGOI ) ( AUGUSTINE GEORGE MASIH ) CHIEF JUSTICE JUDGE February 28th , 2011 poonam Whether referred to Reporters? Yes/No.