CWP No. 632 of 1989 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 632 of 1989 Date of decision January 14, 2010 Kirpal Singh Randhawa,Ex. MLA ....... Petitioner Versus Election Commissioner of India, and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. G. S. Chahal, Advocate for the petitioner. Mr. Anil Kumar Sharma, Additional Advocate General, Punjab. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest? No **** K. Kannan, J (oral). 1. The writ petition seeks for releasing pensionary benefits to the petitioner w.e.f. 1.5.1997 when he claims that he was elected as a member of the State Legislative Assembly. The claim for pension is made on the basis of Punjab State Legislative members Pension and Medical Facilities Regulation) Rules, 1977. The election of the petitioner had been challenged at the instance of another person who claimed that his nomination papers had been wrongly rejected on the ground that was a Development Officer of Life Insurance Company and that he could not lawfully contest the election. This objection was upheld by the High Court in the election petition and the election of the petitioner had been originally set aside. It appears that this judgment of the High Court came to be challenged before the Supreme Court and by virtue of an order of interim stay the petitioner was permitted to act as a member in the Assembly so that the representation of the people was not lost but some CWP No. 632 of 1989 2 conditions had been imposed allowing to him to attend assembly,to sign the register but without participating in the proceedings or voting and without drawing any remuneration. This interim order made by the Hon'ble Supreme Court was itself commented about by a Constitution Bench in the case reported as Kirpal Singh M.L.A. Vs. Sh. Uttam Singh and another AIR 1986 SC 300. When the case was taken up finally, the Court held, without meaning any disrespect to the learned Judges who made the interim order, that where the election was set aside for no fault of his, such as a corrupt practice committed by him or his agent or a disqualification suffered by him, but on the ground that someone else's nomination had been improperly rejected,the more appropriate order would perhaps be to grant an absolute stay so that the Constituency may not go unrepresented for no fault for either the elected or those who elected. At the final hearing, the Bench noticed that subsequent to the filing of the appeal three more elections had come and gone and nothing remained for consideration of the Court than merely setting aside the directions of the High Court with reference to costs. The Supreme Court, however, expressed no opinion on other incidents. The Supreme Court provided that the appellant could receive his remuneration for the period for which he was elected as a member. 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 the 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 no more than setting aside the directions as to costs and it had also set out a particular CWP No. 632 of 1989 3 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 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. As I have already pointed out the only variation that the decision of the Division Bench of this Court was subjected to by the Hon'ble Supreme Court was with reference to costs but it set out a new dispensation for future, but as far as the petitioner is concerned, it should make no difference that he had the benefit of attendance in the assembly but without being a member of the assembly the benefit of pension could not be granted. The fact that he was permitted to draw his remuneration also has no relevance, because the decision of this High Court setting aside the election was not modified. The writ petition is dismissed accordingly. (K. KANNAN) JUDGE January 14 ,2010 archana