Allowed

State of Kerala v. Sheela Mohanan

Kerala HC14 Nov 2019WA/1982/2015

Case brief

AI extract

What is this about?

Appeal against a single Judge's order granting a freedom fighter's wife restricted deceased pension arrears. The High Court set aside the lower court's judgment as premature, noting no amount was payable at the date of the mother's death since no final order sanctioning the pension had been issued.

What did the court decide?

Set aside the single judge's judgment dismissing the appeal and allowing the writ petition; the writ petition stands dismissed.

State of Kerala Vs Sheela Mohanan — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941

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WA.No.1982 OF 2015

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AGAINST THE JUDGMENT IN WPC 17369/2012 DATED 13-07-2015 OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS 3 & 4 IN WPC:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (F.FPA DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM -1.

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BY GOVERNMENT PLEADER

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN WPC:

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1 SHEELA MOHANAN,

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D/O. LATE N. SARADA, RESIDING AT CHAITHRAM T.C 55/65-6, KAIRALI NAGAR,

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KAIMANAM, THIRUVANANTHAPURAM - 18.

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2 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI - 5.

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3 UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI -5.

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R1 BY ADV. SMT.RENJU.V , VAKKOM N.VIJAYAN B/O R2-3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2019, THE COURT ON 14-11-2019 DELIVERED THE FOLLOWING:

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W.A.No.1982 of 2015

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JUDGMENT

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Dated this the 14^th day of November, 2019

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A.M.Shaffique, J.

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This Appeal is filed by the State and its authorities challenging the judgment dated 13.7.2015 in W.P.(C)No.17369 of 2012. The Writ Petition was filed by the 1^st respondent herein claiming the pension amount due to her mother which, her mother was eligible in terms of the Kerala Freedom Fighters' Pension Scheme.

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The short facts of the case would disclose that the writ petitioner's father was a member of Indian National Army. Though he had applied for pension under the Central Government Scheme for Freedom Fighters, the same had been rejected. After the death of father, the petitioner's mother applied for Freedom Fighters' Pension under the Kerala Rules since 1982. Though the award of Pension had been advised by the Advisory Committee, no amount was paid. By Ext.P16, the request for payment of the said amount had been rejected by the Government. Claiming pension, the writ petition was filed inter alia seeking the following reliefs:

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“i. to issue a writ of certiorari or other appropriate writ direction or order calling for the records leading to Ext.P16 and quashing the same.

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ii. to issue a writ of mandamus or other appropriate writ direction or order directing the 3^rd respondent to sanction the freedom fighters continuous pension due to the petitioner's mother from the date of application and allow the petitioner to receive whatever amount to be sanctioned will become due to the petitioner's mother being the wife of Freedom Fighter V.Gopalan.”

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W.A.No.1982 of 2015

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The learned single Judge, while considering the aforesaid claim, found that the petitioner's mother was eligible to get pension from the date of application and being a legal heir, she is entitled to receive the arrears of pension which her mother would have received until the date of her death and accordingly, the writ petition was allowed, issuing such directions and the respondents were directed to pay interest on the arrears of pension @ 9% per annum from the date of judgment till disbursement, if the said amount was not paid within two months.

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While impugning the aforesaid judgment, the learned Government Pleader submits that a married daughter of a freedom fighter is not entitled for any pension. That apart, though the District Advisory Committee had recommended pension to be given to the petitioner's mother in its meeting held on 14.12.2007, her mother expired on 16.12.2007, which was on the 3^rd day of the Committee's decision. In so far as no amount was declared to be payable or rather no order sanctioning the pension was issued, no amount remains as arrears to be paid. That apart, it is submitted that the pension if at all payable as per the decision of the Advisory Committee ought to have been only from the date of grant and not from any earlier date.

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Learned counsel for the respondent however would argue that in so far as the Committee had already taken a decision to grant pension, the pension ought to have been granted from the date of application. But this is a case in which though the Advisory Committee had taken a decision, no orders were

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W.A.No.1982 of 2015

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issued to grant pension. Therefore, as on the date of the death of the petitioner's mother, no amount was payable by the State as arrears of pension to the petitioner's mother. Under such circumstances, learned single Judge was not justified in allowing the Writ Petition and directing to grant pension. We are of the view that the finding of the learned single Judge is against the factual circumstances available in the case. Since no amount was payable to the petitioner's mother, the petitioner cannot aspire to claim the said amount. The judgment of the learned single Judge is therefore liable to be set aside. The Writ Appeal is hence allowed as under:

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The judgment of the learned single Judge is set aside and the Writ Petition stands dismissed.

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Sd/-

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S.Manikumar, Chief Justice

Sd/-

A.M.Shaffique,

Judge

vpv

/true copy/

P.A. To Judge

State of Kerala v. Sheela Mohanan

Case brief

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State of Kerala v. Sheela Mohanan

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