D.V. Kusumamma v. State of Kerala and District Collector, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019/1[ST] PHALGUNA, 1940** **WP(C).No. 5121 of 2019** ## **PETITIONER/S:** **D.V.KUSUMAMMA, AGED 68 YEARS D/O. LATE BHARATHI VASUDEVAN, DEVASWAMPARAMBIL, KOMMADI WARD, KOMMADI P.O., ALAPPUZHA-688 007.** **BY ADV. SRI.K.K.SATHEESH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (FFP.B) DEPARTMENT, THIRUVANANTHAPURAM-695001.** **2 THE DISTRICT COLLECTOR ALAPPUZHA-688007.** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No. 5121 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------- ## W.P(C).No.5121 Of 2019 --------------------------------Dated this the 20[th] day of February, 2019. ## **J U D G M E N T** The prayers in the aforementioned Writ Petition (Civil) are as follows: _i) declare that the petitioner being the divorced dependent daughter of her late mother Bharathi Vasudevan is entitled to get the benefit of “continuous pension under the Kerala Freedom Fighters' Pension Rules. ii) call for the records leading to the issue of Exhibit P4 and quash its original by issuance of a writ of certiorari; iii) issue a writ of mandamus or other appropriate writ, direction or order, compelling the respondents to grant the benefit of continuous Pension under the Kerala Freedom Fighters' Pension Rules to the petitioner with the actual arrears due to her, within a stipulated time. iv) issue any other appropriate writ, direction or order as this Hon'ble Court deems fit and proper in the nature and circumstances of the case._ 2. Heard Sri.K.K.Satheesh, learned counsel for the petitioner and Sri.Jestin Mathew learned Government Pleader appearing for the respondents. 3. The petitioner claimed to be the dependent divorced daughter of late Smt. Bharathi Vasudevan, who was granted the benefit of freedom fighters continuous pension under the State rules on the ground of participation of her husband in the ::3:: ## **WP(C).No. 5121 of 2019** Punnapra-Vayalar movement with effect from 1.4 1991 as evident from Ext.P-1 Pension Payment Order, P.P.O.No.KFF 10650 dated 19.8.1991 issued by the Accountant General (A & E) wherein it ordered that petitioner's mother, Bharathi Vasudevan, is entitled for State pension with effect from 1.4.1991 etc. 4. Later the petitioner's mother had expired on 20.5.2004 and thereafter the petitioner has submitted Ext.P-2 application dated 22.12.2011 before the Government for grant of Freedom Fighter's Pension being the dependent divorced daughter of deceased freedom fighter and his widow. It is stated that the petitioner has submitted Ext.P-2 application along with requisite documents before the Honourable Chief Minister in the Peoples' Contact Programme on 22.12.2011, etc. It is pointed out as per Ext.P-3 G.O.(P).No.92/2012/GAD dated 2.5.2012, Rule 11A has been inserted in the Kerala Freedom Fighters' Pension Rules, 1971, just after Rule 11 and the said Rule 11A reads as follows: > _“_ _**Rule 11A** : Government shall have the power to sanction Kerala Freedom Fighters' Continuous Pension based on merit in most deserving cases to dependent widowed daughters/divorced daughters till their remarriage/death and to the physically/mentally disabled dependent sons/daughters who suffer severe physical or mental disability which is certified by a duly constituted Medical Board, subject to the stipulations in Rule 10 and 11._ ::4:: **WP(C).No. 5121 of 2019** 5. The complaint of the petitioner is that the 1[st] respondent-State Government has now rejected her application as per the impugned Ext.P-4 order dated 28.9.2015 on the purported ground that her request does not come under the head “ _most deserving case_ ” since she is having 2 daughters. Being aggrieved by the impugned Ext.P-4 order, the petitioner has submitted Ext.P-5 representation dated 22.8.2016 before the 2[nd] respondent-District Collector and Ext.P-7 representation dated 17.1.2019 before the 1[st] respondent-State Government for reconsideration of the matter stating that her widow pension, which she was granted stands cancelled with effect from 30.12.2014. But that no effective action is forthcoming. It is in the light of these aspects, the above Writ Petition has been filed seeking the aforementioned reliefs. 6. The impugned Ext.P-4 rejection order dated 28.9.2015 issued by the 1[st] respondent reads as follows: "കകേരള സർകക്കാർ പപക്കാതുഭരണ (എഫഫ. എഫഫ. പപ. ബപ.) വകുപഫ നമ്പർ 8615/എഫഫ. എഫഫ. പപ. ബപ. 3 /2012/ പപക്കാ.ഭ.വ. തപരുവനന്തപുരര, തതീയതപ - 28/09/2015. ::5:: **WP(C).No. 5121 of 2019** പസക്രട്ടറപ ശതീമതപ. ഡപ. വപ. കുസുമമ, കദേവസസര പറമ് ൽ, പകേക്കാമക്കാടപ, ആലപ്പുഴ. സർ, വപഷയര :- പപക്കാതു ഭരണ വകുപഫ - കകേരള സസക്കാതനന്ത്ര്യസമര കസനക്കാനപ തുടർ പപൻഷൻ അനുവദേപകണപമന്ന അകപക്ഷ - സരബനപചഫ. സൂചന - 1) തക്കാങ്കൾ 22 /12 /2011 ൽ മുഖന്ത്ര്യമനപയുപട ജനസമ്പർക പരപപക്കാടപയപൽ സമർപപച അകപക്ഷ - 2) 02/05/2012 പല ജപ.ഒ. (പപ ) 92 /2012 / പപക്കാ. ഭ. വ. നര. സർകക്കാർ ഉത്തരവഫ. 3) ആലപ്പുഴ ജപലക്കാ കേളക്ടറുപട 24 /08 /2015 പല എചഫ - 2 -6436 /13 നര. കേത്തഫ . -------------------------------------------- സൂചനയപകലയഫ തക്കാങ്കളുപട ശദ്ധ ക്ഷണപക്കുന. കകേരള സസക്കാതനന്ത്ര്യ സമര കസനക്കാനപ തുടർ പപൻഷൻ അനുവദേപകണപമന്നഫ ആവശന്ത്ര്യപപട്ടുപകേക്കാണഫ സൂചന (1) പ്രകേക്കാരര തക്കാങ്കൾ സമർപപചപരുന്ന അകപക്ഷ സർകക്കാർ വപശദേമക്കായപ പരപകശക്കാധപച. തക്കാങ്കൾകഫ പ്രക്കായപൂർത്തപയക്കായ രണ്ടു മകൾ ഉള്ളതപനക്കാൽ സൂചന (2) പല സർകക്കാർ ഉത്തരവപൽ പരക്കാമർശപക്കുന്ന 'most deserving case' പന്റെ പരപധപയപൽ തക്കാങ്കപള ഉൾപപടുത്തക്കാൻ സക്കാധപക് യപല. ഈ സക്കാഹചരന് പൽ തക്കാങ്കളുപട അകപക്ഷ പരപഗണപകക്കാൻ നപർവക്കാഹമപലക്കാത് പനക്കാൽ നപരസപചപരപക്കുന്ന വപവരര അറപയപക്കുന. വപശസസ് കയക്കാപട, (ഒപഫ) സകന്തക്കാഷഫ കുമക്കാർ ആർ. അണർ പസക്രട്ടറപ പസക്രട്ടറപയ്ക്കു കവണപ" The petitioner is an elderly senior citizen aged more that 68 years. The petitioner is the divorced daughter of the freedom fighter and ::6:: ## **WP(C).No. 5121 of 2019** the mother of the petitioner, who was granted continuous pension after the death of her father and the mother died on 20.5.2004. The petitioner is having two daughters and both of them are married and are unemployed. The petitioner's daughters are residing with their respective husbands. The petitioner asserts that nobody is there to look after her and she is living without any support from her daughters, who are unemployed and who are depending their respective husbands and that the daughters are living separately in their marital homes. In the light of these aspects it cannot be said that petitioner's case is not “ _most deserving case_ ” as understood in Rule 11A. The plight of a 68 year old divorced daughter of a freedom fighter whose two daughters are married and are living separately with their husbands and where the applicant like the petitioner is not getting any support from her children etc, and where the applicant is living in penurious circumstances, then it will be highly unreasonable to hold that case of such a divorced 68 year old daughter of a freedom fighter, who is living alone in penurious circumstances cannot be categorized as “ _most deserving case_ ” as envisaged in Rule 11A. Of course the fact regarding the petitioner's grounds for eligible ::7:: ## **WP(C).No. 5121 of 2019** income has to be ascertained through appropriate enquiry that may be conducted by the competent revenue officials like Village Officer, Tahsildar, etc. But for the 1[st] respondent to straight away hold in Ext.P-4 order dated 28.9.2015 that petitioner's case cannot be treated as “ _most deserving case_ ” solely on account of her having 2 daughters is highly arbitrary, perverse and unreasonable. The plight of a similarly situated divorced lady, having no children and plight of a person like the petitioner whose daughters are married off and who are not giving any support to the mother cannot be differentiated. The other aspects regarding the eligibility as to whether the applicant is satisfying the income criteria and other parameters come within the norms are matter of enquiry. But to straight away reject the claim by passing an order in the nature of Ext.P-4 by concluding that the case has to be rejected solely on the ground of her having 2 daughters is highly arbitrary, perverse and unreasonable. 7. In the judgment of the Apex Court in the case in _**K.A.Philomina v. District Collector, Alappuzha & anr**_ , reported in AIR 2016 SC 2225, the Apex Court has dealt with Rule 10 of the Kerala Freedom Fighters' Rules, 1971, wherein unmarried ::8:: ## **WP(C).No. 5121 of 2019** daughters are eligible for Freedom Fighters continuous pension, being the unmarried daughter of a freedom righter and it was held that though it is found that the appellant, who is having a son aged 25 years from her extra-marital relationship , during the enquiry it was also found that the said son got married and not living with her. Paras 7 & 8 of the above judgment of the Apex Court in _**K.A.Philomina v. District Collector, Alappuzha & anr**_ , reported in AIR 2016 SC 2225 read as follows: _'7. Relevant Rule with which we are concerned in this case is Rule 10 which reads as under:-_ _“10. The widow/minor sons/unmarried daughters who have not otherwise become independent of a Freedom Fighter who has been sanctioned a pension under rule 6 shall be eligible to the continuance of the pension.”_ _8. As per the aforesaid Rule, unmarried daughters are eligible for freedom fighter's pension and they become ineligible only if they are independent. This independence is also related to the freedom fighter who was getting the pension._ 8. So it is has been categorically held by the Apex Court in the abovesaid decision that the most crucial and relevant aspect of the matter is as to whether the applicant, who is unmarried daughter of freedom fighter is otherwise eligible and the fact that the impugned rejection order on the ground that she has a son is not relevant and not germane especially when he was not living with the applicant. ::9:: **WP(C).No. 5121 of 2019** 9. Accordingly, Ext.P-4 order will stand set aside and the matter will stand remitted to the State Government for consideration afresh. The 2[nd] respondent-District Collector will immediately ensure that appropriate enquiry is conducted by a competent revenue officer/Village Officer, who will ascertain about the details of the petitioner, her eligibility as per the Rules and will give a report to the 2[nd] respondent, who thereafter may examine the matter and give his report to the 1[st] respondent-State Government along with the report of the Village Officer. The 2[nd] respondent will ensure that a copy of his report and report of the Village Officer are made available to the petitioner by speed post in advance to enable her to respond to such reports before the 1[st] respondent. Thereafter, the petitioner may give her written submissions before the 1[st] respondent, who thereafter, after affording a reasonable opportunity of being heard to the petitioner either in person or through authorised counsel/representative if any, and then will pass necessary orders on her application for grant of Kerala Freedom Fighter's continuous pension being the divorced daughter of the deceased freedom fighter in accordance with the abovesaid Rules, without much delay, preferably within an ::10:: ## **WP(C).No. 5121 of 2019** outer time limit of 3 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::11:: **WP(C).No. 5121 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE P.P.O NO.KFF 10650 ISSUED BY THE OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM DATED 19.8.1991.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA DATED 22.12.2011.** - **EXHIBIT P3 TRUE COPY OF THE G.O.(P) NO.92/2012/GAD DATED 2.5.2012 ISSUED BY THE IST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE LETTER NO.8615/FFP.B3/2012/GAD DATED 28.9.2015 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 22.8.2016.** **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 5.1.2015 ISSUED BY THE MUNICIPAL SECRETARY, ALAPPUZHA.** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT DATED 17.1.2019.**