Article 195 Doesn’t Bar State From Granting Pension To Former MLAs, Power Flows From Entry 42 Of List II: Raj HC

Jaipur: The Rajasthan High Court has upheld pensionary benefits to former MLAs under the State’s 1956 Pension Act, holding that though Article 195 of the Constitution refers only to “salaries and allowances”, the State Legislature derives competence to grant pension from Entry 42 of List II read with Article 246(3) of the Constitution.

A division bench of Dr. Justice Pushpendra Singh Bhati and Justice Vinit Kumar Mathur, dismissing a public interest litigation filed by 91-year-old advocate Milap Chand Dandia, observed that the controversy was no longer res integra and stood substantially covered by the Supreme Court’s decision in Lok Prahari v Union of India, (2018) 16 SCC 696.

The Court observed:

The contention advanced on behalf of the petitioner essentially seeks to read into the Constitution an implied prohibition against grant of pensionary benefits to former legislators. Such a prohibition, however, cannot be inferred in the absence of any express constitutional limitation, particularly when the Constitution itself recognizes ‘State pensions’ as a distinct legislative field under Entry 42 of List II of the Seventh Schedule.

The petitioner had assailed the constitutional validity of the Rajasthan Legislative Assembly (Officers and Members Salary, Emoluments and Pension) Act, 1956 and subsequent amendments extending additional benefits to ex-MLAs. The reliefs sought included a declaration that the Act and the rules framed thereunder were unconstitutional and ultra vires, a restraint on the State from making pension payments, and a direction to recover sums already disbursed under the Public Demand Recovery Act or the Land Revenue Act, with interest at 12% per month.

Mr. Vimal Chand Choudhary, learned counsel for the petitioner, submitted that Article 195 of the Constitution contemplates only the “salaries and allowances” payable to Members of the Legislative Assembly and does not expressly authorise grant of pension. He contended that Entry 38 of List II of the Seventh Schedule similarly limits the State’s legislative power to “salaries and allowances of members of the Legislature”, and that pension, being a constitutionally distinct concept separately defined under Article 366(17), could not have been extended to former MLAs in the absence of express constitutional sanction or amendment.

It was further argued that pension is intrinsically a post-retirement benefit ordinarily associated with cessation from service, whereas the office of a Member of the Legislative Assembly is a constitutional and political office to which the concept of retirement, in the strict service jurisprudence sense, is inapplicable. The petitioner placed reliance on Lok Prahari to submit that constitutional offices do not, by themselves, attract pension absent express constitutional provision, and that legislative competence cannot be expanded to enable elected representatives to confer additional financial benefits upon themselves beyond the constitutional framework.

Per contra, Mr. Rajendra Prasad, Senior Counsel and Advocate General, assisted by Ms. Dhriti Laddha, submitted that the issue was no longer res integra and stood concluded by binding precedent. It was contended that Lok Prahari had settled the position in favour of pensionary benefits for legislators, the State’s competence flowing from Article 246(3) read with Entry 42 of List II — “State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State”. Reliance was also placed on the Allahabad High Court’s decision in Uttar Pradesh Janhit Sangthan v State of Uttar Pradesh, the Gujarat High Court’s decision in Narayanlal Himatlal Bhatt v State of Gujarat, and the Madhya Pradesh High Court’s decision in Purwa Jain v Union of India, all of which had upheld State enactments providing pension to ex-legislators.

Accepting the State’s submission, the Court held that the Apex Court in Lok Prahari, while examining the constitutional scheme governing pensionary benefits to legislators and constitutional functionaries, had clarified that the Constitution does not mandate payment of pension merely because certain provisions contain references thereto, and had rejected the contention that pension can be granted only to government servants upon superannuation. The bench noted that the concept of pension is not confined to a traditional employer-employee relationship and that various categories of payments such as old-age pension, widow pension and disability pension are recognised in law independent of conventional government service.

The Court further held that the constitutional framework governing Members of Parliament and Members of the Legislative Assembly, insofar as salaries, allowances and pensionary benefits are concerned, stands on substantially similar footing. The bench observed:

“Once the competence of Parliament to enact laws providing pensionary benefits to Members of Parliament has been recognized, and the State Legislature derives legislative competence in relation to ‘State pensions’ under Entry 42 of List II read with Article 246(3) of the Constitution of India, the challenge raised to the impugned enactment cannot be sustained merely on the ground that Article 195 expressly refers only to ‘salaries and allowances’.”

Reiterating that matters of legislative policy fall within the exclusive domain of the Legislature and that the scope of judicial review extends only to examining legislative competence and constitutional validity, the Court held that once an enactment is found to be within the constitutional framework, interference under Article 226 of the Constitution would not be warranted. Holding that the petitioner had failed to make out any ground for interference, the writ petition was dismissed along with all pending applications.

Title: Milap Chand Dandia v State of Rajasthan

Case No.: D.B. Civil Writ Petition No. 19134/2022

Citation: [2026:RJ-JP:19308-DB]

Counsel for petitioner: Mr. Vimal Chand Choudhary, Mr. Yogesh Kumar Tailor, Ms. Vinita Sharma, Mr. Amit Kumar Soni, Mr. Gaurav Choudhary, Mr. Honey Saini, Mr. Vijay Pratap Sharma

Counsel for respondents: Mr. Rajendra Prasad, Sr. Adv. and Advocate General, assisted by Ms. Dhriti Laddha