Rajasthan HC Dismisses PIL Challenging MLA Pension Act, Holds Entry 42 List II Covers State Legislature's Competence

A Division Bench at Jaipur rejected a 91-year-old petitioner's challenge to the Rajasthan MLA pension law, finding the issue settled by Supreme Court precedent and Entry 42 of the State List.

The High Court of Judicature for Rajasthan, Bench at Jaipur, on 7 May 2026 dismissed a Public Interest Litigation filed by Milap Chand Dandia, a 91-year-old resident of Jaipur, questioning the constitutional validity of the Rajasthan Legislative Assembly (Officers and Members Salary, Emoluments and Pension) Act, 1956, insofar as it grants pensionary benefits to former Members of the Legislative Assembly. A Division Bench comprising Dr. Justice Pushpendra Singh Bhati and Justice Vinit Kumar Mathur held that the challenge was no longer res integra, that the State Legislature possessed competence under Article 246(3) read with Entry 42 of List II of the Seventh Schedule, and that the silence of Article 195 on pension did not amount to an implied constitutional prohibition.

The PIL and the Reliefs Sought

Dandia filed D.B. Civil Writ Petition No. 19134/2022 challenging both the 1956 Act and its subsequent amendments, which extended additional benefits to former MLAs including reimbursement of foreign travel. The reliefs sought were sweeping: a declaration that the 1956 Act and the rules framed under it were unconstitutional, ultra vires and void; a direction restraining the State from making pension payments; and a direction to recover amounts already paid under the Public Demand Recovery Act or the Land Revenue Act, 1956, with interest at 12 per cent per month, to be deposited in the State Treasury.

Mr. Vimal Chand Choudhary appeared for the petitioner, assisted by several counsel. The State was represented by Mr. Rajendra Prasad, Senior Advocate and Advocate General, assisted by Ms. Dhriti Laddha.

The Constitutional Argument Against MLA Pension

The petitioner's case rested on three constitutional provisions read together. Article 195 of the Constitution entitles Members of the Legislative Assembly to “such salaries and allowances as may from time to time be determined by the Legislature of the State by law” but makes no mention of pension. Entry 38 of List II (State List) of the Seventh Schedule similarly empowers the State Legislature only with respect to “salaries and allowances” of members of the State Legislature. Article 366(17) defines “pension” as a constitutionally distinct concept covering pensions of any kind, gratuities, and provident fund returns.

Counsel for the petitioner argued that because the Constitution uses the expressions “salary”, “allowances” and “pension” as distinct terms, and because the framers inserted specific pensionary provisions wherever they intended to protect constitutional functionaries, the absence of any such provision for legislators was deliberate. The State Legislature could not, through ordinary legislation, confer upon itself financial benefits that the Constitution had not expressly authorised.

A further argument was that pension is intrinsically a post-retirement benefit tied to cessation from service, and the office of an MLA is a constitutional and political office to which the concept of retirement in the service-jurisprudence sense does not apply. On this basis, counsel contended that the respondents lacked constitutional authority to enact the impugned provisions at all.

The petitioner also relied on Lok Prahari through its General Secretary S.N. Shukla & Anr. v. Union of India through its Secretary and Ors., reported in (2018) 16 SCC 696, arguing that the Supreme Court's observations in that case supported the view that the Constitution does not mandate pension for legislators.

The State's Defence: Settled Law and Entry 42

The Advocate General's response was that the very precedent the petitioner cited, Lok Prahari, had in fact settled the issue against the petitioner's position. The Supreme Court in that case had considered and rejected a similar challenge to pensionary benefits for Members of Parliament, and the constitutional footing of MPs and MLAs in this regard was analogous.

The State pointed to Entry 42 of List II, which reads: “State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State.” Read with Article 246(3), this entry gives the State Legislature exclusive power to legislate on State pensions. The Advocate General submitted that the impugned enactment was fully traceable to this entry and did not suffer from any constitutional infirmity warranting interference under Article 226.

Three High Court precedents were placed before the bench. The Allahabad High Court in Uttar Pradesh Janhit Sagthan v. State of Uttar Pradesh & Ors. (Writ Petition No. 225 of 1985, decided 19 September 1989) had held that sitting legislators could frame laws governing themselves after they ceased to be members, and that Entry 42 of List II covered pension to ex-legislators. The Gujarat High Court in Narayanlal Himatlal Bhatt & Ors. v. State of Gujarat (Special Civil Application No. 1676 of 1986, decided 4 April 1986) had upheld the Gujarat Legislative Assembly Members' Pension Act, 1984 as intra vires, holding that Article 195's silence on pension did not imply a prohibition and that the State had exclusive competence under Entry 42 read with Article 246(3). The Madhya Pradesh High Court in Purwa Jain v. Union of India (Writ Petition No. 18527 of 2020, decided 19 July 2022) had similarly upheld the constitutional validity of pensionary provisions for MLAs, relying on Lok Prahari and an earlier MP High Court Division Bench ruling in Raghu Thakur v. State of Madhya Pradesh.

How the Division Bench Reasoned

The bench identified the principal question as whether Article 195, read with Entry 38 of List II and Article 366(17), impliedly prohibited the State Legislature from enacting pension provisions for former MLAs. It declined to accept that contention.

The court found that Lok Prahari squarely addressed the issues raised. The Supreme Court in that case had held that the absence of an express constitutional provision providing pension to legislators does not, by itself, deprive the competent Legislature of authority to enact such a law. It had also rejected the argument that pension can only be paid to government servants upon superannuation, observing that various categories of pensions, old age pension, widow pension, disability pension, exist independently of any employer-employee relationship.

The Division Bench drew a direct parallel: once the Supreme Court had recognised Parliament's competence to legislate pensionary benefits for MPs, and once the State Legislature's competence in relation to “State pensions” under Entry 42 of List II read with Article 246(3) was established, the challenge to the Rajasthan Act could not be sustained merely because Article 195 referred only to “salaries and allowances”.

The bench also addressed the petitioner's attempt to read an implied prohibition into the Constitution. It held that such a prohibition could not be inferred in the absence of any express constitutional limitation, particularly when the Constitution itself recognised “State pensions” as a distinct legislative field under Entry 42. The court noted that matters not expressly prohibited by the Constitution and consciously left open for legislative determination fall within the legislative domain, provided the enactment remains within constitutional limits.

On the scope of judicial review, the bench observed that legislative policy falls within the domain of the Legislature and that once an enactment is found to be within the constitutional framework, judicial interference is not warranted. The court declined to reopen a question settled by the Supreme Court on the basis of a different interpretive argument advanced before it.

Outcome

The Division Bench held that the petitioner had failed to make out any ground warranting interference under Article 226 of the Constitution of India. The writ petition was dismissed as devoid of merit. All pending applications were also dismissed.