Dismissed

Madhavi v. State of Kerala

Kerala HC3 Jan 2017WP(C)/8314/2014

Case brief

AI extract

What is this about?

The petitioner, widow of a freedom fighter, challenged the District Collector's order granting pension only from the date of sanction. The Court held that Rule 18 allows payment from the sanction date, especially where benefits were granted on a liberal view with secondary evidence, and dismissed the writ.

What did the court decide?

The writ petition was dismissed; no direction was given for payment of pension arrears from a date prior to the sanction order.

Madhavi Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938

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WP(C).No. 8314 of 2014 (L)

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PETITIONER(S) :

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MADHAVI, AGED 84 YEARS,

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W/O. LATE M.P.KANDANKORAN, PUTHUKKAYIL HOUSE, IAPPADAMBU, ETTUKUNDUKKA P.O., VIA KARIVALLUR, KANNUR-670 521.

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BY ADV. SRI.P.C.SASIDHARAN

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RESPONDENT(S) :

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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE DISTRICT COLLECTOR, COLLECTORATE, KANNUR-670 001.

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BY SR. GOVERNMENT PLEADER SRI. SAIGI JACOB PALATTY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 8314 of 2014 (L)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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P1 : TRUE COPY OF THE NEWS REPORT IN MATHRUBHOOMI DAILY DATED 11.08.1995.

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P2 : TRUE COPY OF THE COMMUNICATION DATED 28.07.1990.

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P3 : TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 19564 OF 2009.

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P4 : TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 07.10.2011.

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P5 : TRUE COPY OF THE COMMUNICATION DATED 14.08.2012.

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P6 : TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 17376 OF 2013.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

ALEXANDER THOMAS, J.

W.P(C).No.8314 Of 2014

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Dated this the 3rd day of January, 2017.

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It is the case of the petitioner that her deceased husband, Sri.M.P.Kandankoran, was a participant in the Goa Liberation Movement and that he was entitled for the benefit of Freedom Fighters' Pension as per the provisions contained in the Kerala Freedom Fighters' Pension Rules, 1971. It is the further case of the petitioner that her husband died in 1970 and that because of her socio-economic background, she was ignorant of the Kerala Freedom Fighters' Pension Rules, 1971, and that she came to know only in 1990 that Kerala Freedom Fighters' Pension Scheme was available to the freedom fighters, who participated in the Goa Liberation Movement, and accordingly, she had made application in February, 1990 enclosing therewith certain certificates given by other co-participants in the Goa Liberation Movement. The said request of the petitioner in February, 1990, was rejected by the 2^nd respondent-District Collector, Kannur, as per Ext.P-2 order dated 28.7.1990 on the ground that the petitioner had not produced sufficient documents in tune with the rules and that the

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documents submitted by her are not acceptable in terms of the State Government Rules and that her case cannot be placed before the District Advisory Board on the issue of grant of State Freedom Fighters' Pension, etc. It is not in dispute that after Ext.P-2 dated 28.7.1990, the petitioner had not pursued the matter further. Much later, the petitioner had submitted a representation dated 2.2.2008 directly before the Chief Minister requesting to issue orders granting pension and to that representation, the competent authority concerned had issued a communication dated 19.12.2008 (referred to as Ext.P-8 in Ext.P-3 judgment) instructing the petitioner to submit an application with all the necessary documents to consider her claim for grant of pension. On receipt of the said communication dated 19.12.2008, the petitioner had preferred a Writ Petition as W.P.(C).No.19564/2009 before this Court praying for orders to set aside the impugned rejection order and to direct the competent authorities concerned to grant State Freedom Fighters' Pension as well as Central Freedom Fighters' Pension as she is the eligible dependent of the deceased freedom fighter, etc. This Court, as per Ext.P-3 judgment rendered on 24.11.2010 had disposed of W.P.(C).No.19564/2009. In Ext.P-3 judgment, this Court has referred to Ext.P-1 herein, which is a newspaper report dated

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11.8.1955, which also carried a photograph of a group of freedom fighters marching in connection with Goa Liberation Movement and in the newspaper report, the petitioner’s husband’s name is also mentioned among various participants. This Court has also referred to the aspect that after the issuance of Ext.P-2 herein (dated 28.7.1990) the petitioner has not pursued the matter further and thereafter the petitioner has, for the first time, submitted only a representation directly before the Chief Minister to which she has received communication dated 19.12.2008, which is produced as Ext.P-8 therein, instructing her to submit the application with necessary documents concerned, etc. This Court took note of the fact that Goa Liberation Movement (Phase II) was recognized by the State Government as a Freedom Movement and its participants have been ordered to be given the benefit of Pension and that certificates produced as Exts.P-1, P-3, P-4 and P-5 therein show that petitioner’s husband was a participant in the Goa Liberation Movement and had accordingly opined that the claim made by the petitioner needs to be considered by the District Advisory Board and accordingly, this Court as per Ext.P-3 judgment dated 24.11.2010 in W.P.(C).No.19564/2009 had directed the District Advisory Board to consider the documents produced by the petitioner, conduct an enquiry

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and take a decision on the application made by the petitioner duly adverting to the materials available and that the District Collector shall forward the application made by the petitioner to the District Advisory Board, who shall “consider the same in the light of the provisions of the State Pension Scheme and pass appropriate orders”. It was also further ordered that it will be open to the petitioner to furnish further details that may be necessary for appropriate consideration of the application made by her, etc. Pursuant to the direction issued by this Court as per Ext.P-3 judgment dated 24.11.2010, it appears that the Government had issued letter No.92713/FFPB2/07/GAD dated 27.8.2011 sanctioning Kerala Freedom Fighter's Pension to the petitioner herein as widow of late M.P.Kandankoran, etc. Pursuant to the said direction issued by the Government in Government letter dated 27.8.2011 (referred to in Ext.P-4), the 2^nd respondent District Collector had issued Ext.P-4 proceedings dated 7.10.2011 according sanction for freedom Fighter's Pension to the petitioner with effect from 7.10.2011 (date of Ext.P-4 sanction order issued by the District Collector).

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There are some averments in the Writ Petition relating to the issue of grant of pension under the Central Government Freedom Fighters' Pension Scheme. By Ext.P-5 dated 14.8.2012, the Central

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Government authorities had rejected the claim of the petitioner for Central Government Freedom Fighters' Pension on the ground that those participants of the II Phase of Goa Liberation Movement (19541955) who have been granted Freedom Fighters' Pension by the State Government by 1.8.2002 alone are eligible for grant of Samman Pension from Central Revenues under the Goa Liberation Movement (Phase II) Scheme and since the petitioner herein was granted State Freedom Fighters' Pension only with effect from 7.10.2011, she is not eligible for grant of Central Freedom Fighters' Pension inasmuch as Ext.P-4 herein is much after 1.8.2002 and that therefore, she is not entitled for Central Freedom Fighters' Pension, etc. This Court as per Ext.P-6 judgment rendered on 27.9.2013 filed by the present petitioner as well as some other Writ Petitions filed by some other aggrieved persons, had quashed the said rejection order passed by the Central Government authorities concerned and held that the petitioners therein are entitled to have similar benefits as granted by this Court as per judgment cited therein [judgment in W.P.(C).No.37460/2007 and judgment dated 10.3.2011 in W.A.Nos.148/2011 & 160/2011, etc]. Accordingly, this Court by Ext.P-6 judgment had directed the authorities concerned to consider and pass appropriate orders on the

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applications preferred by the petitioners in accordance with the relevant provisions of the Scheme and also in the light of the observations in the said judgment, within three months, etc.

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The prayers raised in this Writ Petition are as follows:

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“i) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to grant pension to the petitioner from the date on which the pension was introduced;

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ii) Declare that the action of the respondents in limiting the payment of pension from 07/10/2011 alone is highly unjust and illegal;

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iii) Issue a further direction to the respondents to take steps to see that the arrears of pension is disbursed to the petitioner without any delay;

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iv) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of this case.”

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From the prayers raised in the Writ Petition as well as the grounds urged herein, it can be seen that the only dispute that is projected in this Writ Petition is as to the legality and correctness of the stand taken by the 2^nd respondent District Collector in Ext.P-4 sanction order that the petitioner will be eligible for the Kerala Freedom Fighter's Pension benefits only from 7.10.2011 (date of Ext.P-4 sanction order issued by the District Collector) and it is prayed that the petitioner should be granted pensionary benefits with effect from date of effect of Pension Scheme and that this Court may declare the action in limiting the payment of pension from 7.10.2011 (date of Ext.P-4 sanction order issued by the District Collector). There are no prayers in this Writ

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Petition regarding the grant of benefits under the Central Government Freedom Fighters' Pension Scheme. There are no averments in the Writ Petition as to what has transpired regarding the petitioners claim for Central Government Freedom Fighter's Pension Scheme after the pronouncement of Ext.P-6 judgment dated in 27.9.2013 in W.P.(C). No.19376/2013, etc. It is not known from the averments as to whether the Central Government authority have taken any decision either to grant or to reject the request of the petitioner for the benefit under the Central Government Freedom Fighter's Pension Scheme. Suffice to say, that the prayers and contentions in this Writ Petition need be considered only on the narrow issue as to the legality and correctness of the stand taken by the 2^nd respondent in limiting the Kerala Freedom Fighters' Pension Benefits to the petitioner only from 7.10.2011 (date of Ext.P-4 sanction order).

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The 1^st respondent State Government has filed a counter affidavit dated 13.11.2014 resisting the pleas of the petitioner. Essentially the main contention taken therein is that as per the provisions contained in Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971, applications received after 15.8.1972 will be granted pension under the said rule only from the date of issue of sanction

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order. In that regard, reliance is placed on the Division Bench ruling of this Court in Pauly v. State of Kerala reported in 2008 (1) KLT 933, wherein it was held by the Division Bench that Rule 18 limiting the grant of pensionary benefits from the date of sanction order is not arbitrary or ultravires, etc. Certain other contentions are also urged in the said counter affidavit regarding the liability and procedure envisaged in the Rules as per Kerala Freedom Fighters' Pension Rules, 1971, and reference to those aspects will be dealt with subsequently in this judgment. Accordingly, it is contended by the respondents that the stand taken by the them to limit the benefits available under the Kerela Freedom Fighters' Pension Scheme only from 7.10.2011 which is the date of Ext.P-4 sanction order is legal and correct.

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Heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents.

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Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971 provided as follows:

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“Pension sanction under these rules will be payable from the date of issue of the sanction order”.

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It is pointed out by the learned Senior Government Pleader based on the averments in the counter affidavit that earlier it was provided that “pension sanctioned under these rules shall be payable from 1.3.1971 only in the case of applications received up to 15.8.1972. Applications received after 15.8.1972 will be granted pension under these rules only from the date of issue of sanction order”. Kerala Freedom Fighters' Pension Rules, 1971, is a non statutory rule framed in accordance with the powers conferred under Article 161 of the Constitution of India and that the same has been published on 8.6.1971. Vires of aforequoted Rule 18 was considered by the Division Bench of this Court in the case Pauly v. State of Kerala reported in 2008 (1) KLT 933. It was held by the Division Bench therein that Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971, stipulated that freedom fighters will be granted pension only from the date of sanction order. The same is challenged as arbitrary and the freedom Fighters' Pension has to be granted from the date of application and not from the date of sanction order. The Division Bench held therein that the rules clearly provide that if there is delay in considering the application and that the Rules are not statutory but are framed under Article 161 of Constitution and hence not arbitrary. It was held that the rules provide that the application

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filed by a freedom fighter requires to be considered and decided at the earliest. In view of the safeguards provided in the Pension Rules itself, the rule making authority has incorporated Rule 18 of the Pension Rules to suggest that the freedom Fighters' Pension requires to be granted only from the date of the sanction order. Since sufficient safeguards are provided in the Pension Rules itself for consideration and disposal of an application filed by the freedom fighter, the Division Bench observed hat there is no arbitrariness in Rule 18 of the Pension Rules. Paras 11 to

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13 of the said ruling in Pauly’s case (supra) read as follows:

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“11. The Freedom Fighters' Pension Rules are not statutory. They are framed by the State Government in exercise of their powers under Art.161 of the Constitution of India. In the said Rules it is made clear that as far as possible an application filed by a freedom fighter requires to be considered and decided at the earliest. In view of the safeguards provided in the Pension Rules itself, the rule making authority has incorporated R.18 of the Pension Rules to suggest that the freedom Fighters' Pension requires to be granted only from the date of the sanction order.

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In Devkinandan Maheshwari's case the Apex Court was dealing with a more or less similar provision which provided for the grant of pension not from the date of the application, but from the date of the sanction order. While considering the said Rules, the Supreme Court has specifically stated that in view of the rule so provided under the M. P. Swatantra Sangram Sainik Samman Nidhi Niyam, 1972, a freedom fighter is entitled for grant of pension not from the date of the application, but from the date of the sanction order.

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In our opinion, since sufficient safeguards are provided in the Pension Rules itself for consideration and disposal of an application filed by the freedom fighter, we do not see any arbitrariness in R.18 of the Pension Rules."

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The learned counsel for the petitioner has placed reliance

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on the ruling in Mukund Lal Bhandari & ors. v. Union of India & ors. reported in (1993) Supp. 3 SCC 2. The said case arises under a claim for Freedom Fighters' Pension under the Central Government Freedom Fighters' Pension Scheme, 1972. The learned Senior Government Pleader has pointed out that the Central Government Freedom Fighters' Pension Rules does not contain Rule 18 as in the Kerala Freedom Fighters' Pension Rules, 1971. It was held by the Apex Court in para 10 of the above said ruling in (1993) Supp. 3 SCC 2 that the freedom Fighters' Pension under the Scheme should be made payable only from the date on which the application is made and whether the application is accompanied by the necessary proof of eligibility or not, and the pension, of course, should be sanctioned only after the required proof is produced, etc. In the case State of Madhya Pradesh & anr. v. Devkinandan Maheshwari reported in (2003) 3 SCC 183, the Apex Court dealt with a case which arose under the provisions of Madhya Pradesh Swatantra Sangram Sainik Samman Nidhi Niyam, 1972, and in the said State Scheme, a rule had been incorporated which provided that the pension claims under the provisions of the said State Scheme can be granted only from the date of sanction of the pension and not from the date of

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application. While distinguishing the aforesaid decision of the Apex Court in Mukund Lal Bhandari's case (supra), the Apex Court in Devkinandan Maheshwari 's case (supra) had held that since the State rule specifically provides that the pension requires to be sanctioned only from the date of the order and not from the date of application, a freedom fighter is entitled to pensionary benefits under the Pension Rules only from the date of sanction order and not from the date of application. The aforesaid ruling in Devkinandan Maheshwari (supra) was also relied on by the Division Bench in Pauly v. State of Kerala reported in 2008 (1) KLT 933 as can be seen from para 8 thereof. However, before parting with the case their Lordships in Pauly’s case (supra) have observed in para 14 as follows:

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A freedom fighter has sacrificed his life for freedom of this country. Pension Rules have been framed to grant some benefits to those freedom fighters who had laid down their lives for the freedom of this country. These are all beneficial provisions. When a freedom fighter approaches the competent authorities for grant of freedom Fighters' Pension, it is expected of the authorities to consider that application within a reasonable time and pass appropriate orders. Otherwise the purpose of the Pension Rules itself would be defeated. We only hope and desire that in future the authorities will not unnecessarily keep an application pending when it is filed for grant of freedom Fighters' Pension. In this regard we also intend to observe that the State Government may even consider to incorporate an appropriate rule providing for disposal of an application filed by a freedom fighter within a reasonable time. With these observations, the writ appeal is disposed of.

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It has also been held by the Apex Court in Government of India v. K.V.Swaminathan reported in (1997) 10 SCC 190 that where a claim is

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raised on the basis of benefit of doubt, pension should be granted not from the date of application but from the date of order. Relying on the said decision in K.V.Swaminathan's case (supra), the Apex Court held in the case Union of India & anr. v. Kaushalya Devi reported in (2007) 9 SCC 525 that the arrears of freedom Fighters' Pension should be granted from the date of sanction order which accepted the secondary evidence and need not be from the date of application. On this basis, their Lordships of the Supreme Court in Kaushalya Devi 's case (supra) have distinguished the ruling in Mukund Lal Bhandari v. Union of India reported in (1993) supp. 3 SCC 2 = AIR 1993 SC 2127. The learned Senior Government Pleader has taken to the attention of this Court to

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the various provisions in the Kerala Freedom Fighters' Pension Rules,

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Rule 4 of the State Rules defines freedom fighter as follows:

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“Rule 4.- In these rules, a Freedom Fighter means any person who on account of participation in the National Movement;

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(a) had been sentenced to imprisonment for not less than six months; or

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(b) had been kept under detention (including detention as under-trial prisoner for not less than six months; or

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(d) was sentenced to death; or

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(e) died due to police or military firing or lathi charge; or

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(f) lost his/her job or means of livelihood or the whole or substantial part of his/her property; and

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(g) became permanently incapacitated due to such participation or affected with grave disease for life.

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Note to rule 4.-- Deserving and hard cases in which pension cannot be granted because the periods of incarceration falls short of six months may be reported to Government by the District Collector for decision”..

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Rules 5 & 6 read as follows:

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“Rule 5.- In these Rules, National Movement means a movement against the British Government in India or any Government within the country supported by it. Rule 6.- This definition will cover only participants in all freedom movements till 15th August, 1947 within the confines of the present State of Kerala and will also include those who had participated in the Goa Liberation Movement and the Liberation of Mahe from French Rule.”

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Rule 23 of the said Rules provides as follows:

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“Rule 23.- Applications/Review/Appeal Petitions received after 31.3.1994 will be considered only on production of documentary evidences, official records such as warrant of arrest, Court records, jail records clearly showing the applicant's suffering in connection with the freedom struggle.”

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It is observed in para 6 of the counter affidavit that no such records as envisaged in Rule 23 so as to prove or point out the sufferings of her late husband related to Goa Liberation Movement as envisaged in the provisions of the State Rules have been produced by the petitioner at any point of time. It is further averred in the said para 6 of the counter affidavit that pursuant to the direction issued by this Court in Ext.P-3 judgment in W.P.(C).No.19564/2009, the State Government had issued orders sanctioning Kerala Freedom Fighters' Pension to the petitioner as a special case. On the basis of the aforequoted Rules in the Kerala Freedom Fighters' Pension Rules as well as the above said averments in

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the counter affidavit, the learned Senior Government Pleader would submit that a very lenient view was taken in the case of the petitioner’s claim and though no records proving the sufferings of her late husband relating to Goa Liberation Movement, as envisaged in Rule 4 of the Kerala Freedom Fighters' Pension Rules, 1971, were produced, still the State Government has taken a lenient and liberal view to sanction pension as a special case to the petitioner. Therefore, it is pointed out by the learned Senior Government Pleader that the State Government has taken a lenient attitude by granting the benefit of doubt and had sanctioned the family pension to the petitioner, as a special case and in the light of these aspects, the stand taken in the impugned Ext.P-4 order to limit the family benefits only from the date of Ext.P-4 sanction order dated 7.10.2011 is fully legal and proper especially in the light of the ruling of the Apex Court in Government of India v. K.V.Swaminathan reported in (1997) 10 SCC 190 that where the claim is allowed on the basis of doubt, pension should be granted not from the date of application but from the date of sanction order. The petitioner has not chosen to file any reply so as to controvert the averments in the counter affidavit, more particularly those raised in para 6 thereof. It is clear from the materials on record, more particularly from Ext.P-3 itself that

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the petitioner was mainly relying on certain certificates issued by the co-participants in the Goa Liberation Movement but all those materials could have been only secondary pieces of evidence. More importantly, this Court has clearly observed in Ext.P-3 judgment that after the rejection by Ext.P-2 in the year 1990, the petitioner has not pursued the matter and thereafter the petitioner for the first time has submitted a representation only on 2.2.2008 and that too directly before the Chief Minister to which the petitioner has received reply as per communication dated 19.12.2008 (Ext.P-8 in Ext.P-3 judgment) that the petitioner should submit an application with all the necessary documents to consider her claim. But that, on receipt of the said communication dated 19.12.2008, the petitioner has filed W.P.(C). No.19564/2009 which led to Ext.P-3 judgment. In the light of all these aspects, more particularly, in the light of the aspect mentioned in para 6 of the counter affidavit, it is only to be held that the State Government has used its discretion to relax the requirements to grant the family pension to the petitioner as a special case. Since the petitioner herself has produced secondary pieces of evidence to the State Government, the stand taken in limiting the family pension benefits only from the date of sanction order is fully in order going by the dictum laid down by the

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Apex Court in the ruling in Government of India v. K.V.Swaminathan reported in (1997) 10 SCC 190, Union of India & anr. v. Kaushalya Devi reported in (2007) 9 SCC 525, etc. Still further, it has to be noted that unlike the Central Freedom Fighters' Pension Rules, Rule 19 of Kerala Freedom Fighters' Pension Rules, 1971, clearly provides that the pensionary benefits are to be paid only from the date of sanction order and not from the date of introduction of the Scheme or from the date of submission of the application, etc. The said position has been fully upheld by the Division Bench in Pauly’s case (supra). In the case State of Madhya Pradesh & anr. v. Devkinandan Maheshwari reported in (2003) 3 SCC 183, it has been held that similar provision in Madhya Pradesh Swatantra Sangram Sainik Samman Nidhi Niyam, 1972, is fully in order and that pension need be paid from the date of sanction order and not from the date of application in the light of the specific provision made in that behalf by the State Government in their Rules.

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The petitioner has placed reliance on the judgment of a learned Single Judge of this Court in State of Kerala v. Raghavan reported in 2010 (3) KLT SN 19 (C.No.26). The said case involved consideration of Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971, wherein orders were passed only after 15 years. Therein, the application for

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pension was dated 29.12.1995 and the order granting pension was passed on 15.12.2009 and the application was kept pending for a period of long 14 years. It was held that there is no provision in the Rule directing the officer to dispose of the application within a specified time and that does not mean that an application for pension can be disposed of or decided at the whims and fancies of the officers and when there is no provision in the Rules that pension sanctioned under the Rules will be payable only from the date of issue of sanction of the order, the Rules presumes that application shall be disposed of within a reasonable period and the reasonable period can be a maximum period of 6 months and if the application for pension was sanctioned within the period of six months, this Rule could be squarely applied and the pension could be sanctioned from the date of issue of sanction order, etc. On this basis, it was held that delay of more than 15 years is not contemplated under the Rules and the learned Single Judge granted sanction of pension from the date of application. The said judgment of the learned Single Judge was rendered on 21.1.2010 and the same has been rendered without noticing the ruling of the Division Bench in Pauly v. State of Kerala reported in 2008 (1) KLT 933, which was rendered on 5.2.2008. That apart, the said judgment was rendered on

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the peculiar facts of that case whereas in this case, the petitioner had made the application for the first time only in 1990 which was rejected as per Ext.P-2 dated 28.7.1990 and thereafter the petitioner had not pursued the matter any further as can be seen from Ext.P-3 judgment. It is much later that the petitioner has submitted a representation dated 2.2.2008 directly before the Chief Minister to which the petitioner was instructed to submit an application along with requisite documents as per the Rules, The petitioner has thereafter approached this Court by filing W.P.(C).No.19564/2009 which resulted in Ext.P-3 judgment. The petitioner has no case that she had complied with the direction issued by the State Government and she had submitted all the requisite documents. The petitioner has produced materials through secondary piece of evidence mainly relying of the certificates issued by the coparticipants in the Goa Liberation Movement. The assertion in para 6 of the counter affidavit that the petitioner has not produced any records to prove her husband’s sufferings as envisaged in Kerala Freedom Fighters' Pension Rules, 1971, has not been controverted by her in any manner. It has been contended on behalf of respondents that though no such records as envisaged in Rule 4 of Kerala Freedom Fighters' Pension Rules, 1971, have been produced by the petitioner, the State

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Government had taken a lenient and liberal view and had relaxed the requirement and granted family pension to the petitioner only as a special case. Since the petitioner has been granted benefits by the State Government by resorting to the benefit of doubt, and that too by placing reliance on secondary piece of evidence, the aforequoted rulings of the Apex Court in Government of India v. K.V.Swaminathan reported in (1997) 10 SCC 190 will squarely apply to this case and therefore the stand taken by the respondents that the pension dues can be paid to the petitioner only from the date of sanction order and not from the date of application cannot be faulted in any view of the matter. The petitioner had also placed reliance on the judgment of the learned Single Judge of this Court rendered on 22.3.2016 in W.P.(C).No.27875/2008 reported in MANU/KE/256/2016. A reading of the said judgment would also disclose that the learned Single Judge has not adverted to the aforequoted Division Bench judgment in Pauly v. State of Kerala reported in 2008 (1) KLT 933 and the said learned Single Judge has also not noted the effect of Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971. In view of the aforesaid aspects, this Court is clearly of the view that the stand taken by the respondents cannot be found fault with.

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Regarding the contention raised by the petitioner that there has been undue delay on the part of the respondents, it has to be noted that the petitioner had not submitted requisite application along with documents inspite of instruction given to her by the State Government as per communication dated 19.12.2008 referred to as Ext.P-8 in Ext.P3 judgment. True, that Ext.P-3 judgment was rendered on 24.11.2010. Even if it is taken that necessary orders should have been passed at least within an outer time limit of 6 months therefrom, it is to be noted that the State Government had issued necessary instructions as per Government letter dated 27.8.2011 referred to in Ext.P-4 and thereafter the 2^nd respondent District Collector had issued Ext.P-4 dated 7.10.2011. Therefore, under these circumstances, it cannot be said that there was undue delay in passing sanction order though the Government has taken about 7-8 months after the pronouncement of Ext.P-3 judgment in passing the requisite orders as per Ext.P-4, etc. It is also to be noted that this Court had not imposed specific time limit in Ext.P-3 judgment. More importantly, this Court has specifically directed that the case of the petitioner shall be considered in the light of the provisions of the State Pension Scheme and to pass appropriate orders, etc. Therefore, the respondents were bound to pass orders only

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W.P(C).No.8314 Of 2014

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in accordance with the provisions of the rules more particularly Rule 18 thereof. Rule 23(A), providing relaxation of the rule, was incorporated only later as per G.O.(P).16/2012/GAD dated 20.1.2012. Rule 23(A) of the Rules so incorporated reads as follows:

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“Rule 23(A):- Government shall have the power to sanction Kerala Freedom Fighters' Pension/Family Pension/Continuous Pension in relaxation of Rule 23 whenever the Government are undoubtedly convinced of the genuineness of the claim. This shall be applicable to all cases in which sanction for pension has already been ordered by Government.”

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At the time of passing of Government direction as per Government letter dated 27.8.2011 (referred to in Ext.P-4) as well as Ext.P-4 dated 7.10.2011, the provision contained in aforequoted Rule 23 was fully in force. Rule 23(A) had not then come into effect. Still the Government has taken a lenient attitude as per Rule 23 and had directed to grant family pension benefits to the petitioner as a special case, even though she has not produced any documents to prove the sufferings of her husband in Goa Liberation Movement as envisaged in the Rules. When the Government has taken such a lenient and liberal attitude it is only appropriate for this Court not to sadden the Government with any additional liability and therefore this Court is of the view that this is not a fit case to exercise power conferred under Article 226 of the Constitution of India. In the light of these aspects, it is only to be held

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W.P(C).No.8314 Of 2014

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that the contention raised by the petitioner is only liable to be dismissed. However, it is made clear that the issues raised and decided in this Writ Petition are not in any manner relatable to the claims for the grant of pension under the Central Government Freedom Fighters' Pension Scheme, 1972, pursuant to Ext.P-6 judgment and it is for the petitioner to pursue further action in this regard.

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With these observations the Writ Petition will stand dismissed.

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Sd/-

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ALEXANDER THOMAS, Judge.

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bkn/-

Madhavi v. State of Kerala

Case brief

What is this about?

What did the court decide?

Madhavi v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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