Janaki Kochuveli v. State of Kerala and District Collector, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** ## **WP(C).No. 5571 of 2011** ## **PETITIONER/S:** **JANAKI KOCHUVELI, MUTTAHIPARAMBU PO,, KANJIKKUZHI, CHERTHALA, ALAPPUZHA.** **BY ADV. SRI.C.V.MANUVILSAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA REP. BY**| |---|---| ||**ITS SECRETARY, GENERAL ADMINISTRATION DEPARTMENT,**| ||**FREEDOM FIGHTERS PENSION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**THE DISTRICT COLLECTOR**| ||**ALAPPUZHA 688 001.**| ## **OTHER PRESENT:** **JESTIN MATHEW, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 5571 of 2011 ================== Dated this the 30[th] day of August, 2018 ## **J U D G M E N T** The grievance of the petitioner, who is the widow of a deceased freedom fighter, is that she has been granted freedom fighter's continuous/dependent pension under the Kerala State Freedom Fighters' Pension Rules, 1971 only from the date of the order sanctioning such pension and not from the date of receipt of the original application submitted by her deceased husband in that regard. The prayers in this Writ Petition (Civil) are as follows: - _“i. Call for the records leading to the issuance of Exhibit P7 and quash the Exhibit P7 by way of issuance of a writ of Certiorari._ - _ii. Declare that the Petitioner is entitled to get freedom fighter's Pension with effect from the date of Exhibit P1 application._ - _iii. Issue a writ of mandamus or any other appropriate writ directing the 1[st] respondent to grand arrears of Pension amount from the date of Exhibit P1 application till the date of Order._ - _iv. Issue writ of mandamus or any other appropriate writ directing the 1[st] respondent to re-consider and take action on Exhibit P6 application on the basis of the dictum laid down by tis Hon'ble Court in the matter of_ _**State Of Kerala vs. K.Raghavan** reported in 2010 KHC 6238, without any further delay, by affording a reasonable opportunity to the petitioner or authorised representative._ - _v. Issue such other writ order or direction as this Hon'ble court may deem fit and proper in the interest of justice and equity.”_ 2. Heard Sri.C.V.Manuvilsan, learned counsel for the petitioner and Sri.Jestin Mathew, learned Government Pleader for W.P.(C).5571/11 - : 3 :- the respondents. 3. According to the petitioner, her husband, P.K.Kumaran, was an active activist, who has participated in the Punnapra-Vayalar movement and he was arrayed as accused in P.E..7/1122 ME on the file of the Special First Class Magistrate Court, Alappuzha, consequent to which, warrant proceedings was issued against him on account of which, he was remained underground for 14 months. Accordingly, the petitioner's husband has submitted Ext.P-1 application as early as on 21.7.1981 for the grant of freedom fighter's pension under the Kerala Freedom Fighters' Pension Rules, 1971. It appears that no action whatsoever was taken on the said application filed by the petitioner for a very long time. The petitioner's husband, P.K.Kumaran had died on 19.4.2002 as evident from Ext.P-2 death certificate. Thereafter, the petitioner has submitted petition dated 30.6.2002 before the 2[nd] respondent-District Collector reminding him to take action on Ext.P-1 application submitted by her deceased husband and for grant of pensionary benefits under the State Scheme. Even then, no further action was taken thereon, which constrained the petitioner to approach this Court by filing Writ Petition as W.P. (C).No.5294/2008. This Court had finally disposed of the said W.P. (C).No.5294/2008 as per Ext.P-4 judgment rendered on 25.11.2008 W.P.(C).5571/11 - : 4 :- and this Court had directed the 2[nd] respondent therein (2[nd] respondent herein) that Ext.P-4 therein (Ext.P-3 herein) should be treated as a reminder of the original application submitted by the petitioner's husband as per Ext.P-1 herein in regard to the claim for pensionary benefits under the State Scheme. Further the 2[nd] respondent was directed to conduct enquiry and then to take decision on the said claim of the petitioner within three months. 4. It appears that decision in compliance with Ext.P-4 judgment was not rendered within the time limit of 3 months stipulated therein and it was only as late as on 17.7.2009 that the 2[nd] respondent had issued Ext.P-5 proceedings, whereby the freedom fighter's continuous dependent pension was sanctioned in favour of the petitioner and that too, only prospective effect from 17.7.2009. The petitioner thereafter was being disbursed pensionary benefits under the State scheme prospectively with effect from 17.7.2009. The petitioner had submitted Ext.P-6 representation dated 24.3.2010 requesting the 1[st] respondent State Government to ensure that she gets pensionary benefits with effect from the date of submission of the original application submitted as per Ext.P-1 dated 21.7.1981 in view of the inordinate delay on the part of the respondents to take a decision on the said claim. The said request for grant of arrears of W.P.(C).5571/11 - : 5 :- pension has been rejected as per the impugned Ext.P-7 order dated 24.1.2011 issued by the 1[st] respondent State Government. Ext.P-7 order reads as follows: _"_ ന� _. 90312/_ എഫ _._ എഫ _._ പ� _._ ബ� _.3/2010/_ പപ� _._ ഭ _._ വ ത�രരവനനപരര� ത�യത� _: 24/01/2011._ പസകകടറ� ക��മത� _._ ജ�നക� പക�ചചവവള� മരടത�പറമ! _,_ വ"ർതല _._ ആലപചഴ ## മ�ഡ� _,_ വ�ഷയ� _:_ വകരള സസ�തകന സമര വസന�ന� പപൻ ഷൻ _- ._ കരട�ശ�ക അനരവദ�യ1ണപമന അവപക സ�ബന�ച! സ6"ന _:_ ത�ങളചപട _24/03/2010-_ പല അവപക _._ സ6"നയ�വലയ1! ത�ങളചപട ക�ദ കണ�1രനര _._ ത�ങളചപട _._ അവപക സർ1�ർ വ�ദമ�യ� പര�വ��ധ�ചച ന�ലവ�ലരള വകരള സസ�തകന സമര വസന�ന� പപൻഷൻ "ട� കപക�ര� ജ�ല;� കളകടറരപട ഉതരവ ത�യത� മരതൽ1�ണ പപൻഷൻ അനരവദ�1രനത _._ ത�ങൾ1! അനരവദ�ചത ത�ങളചപട ഭർത�വ�യ ക�� _._ പ� _._ പക _._ കരമ�രന ലഭ�വ1ണ�യ�രരന വകരള സസ�തകന സമര വസന�ന� പപൻഷന�ണ _._ ആയത�ന�ൽ അവപക� ത�യത� മരതൽ പപൻഷൻ അനരവദ�യ1ണപമന വ�വര� ത�ങളചപട ആവ�E� പര�ഗണ�1രവ�ൻ ന�ർവ�ഹമ�പല;ന _._ അറ�യ�1രനര വ��സസതവയ�പട _(_ ഒപ! _) . ._ മരഹമദ ഇകബ�ൽ വ�എഫ അണർ പസകകടറ� _"_ 6. Sri.Jestin Mathew, learned Government Pleader appearing for the respondents submits that a specific rule has been incorporated as per Rule 18 of the abovesaid Scheme, which reads as follows: _“The pensions sanctioned under these rules will be payable from the date of issue of the sanction order.”_ On this basis, it is argued by the learned Government Pleader that the W.P.(C).5571/11 - : 6 :- impugned Ext.P-7 rejection order is justified, inasmuch as Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971 explicitly provides that the said pension under the State rules can be sanctioned only prospectively from the date of issuance of the sanction order and not retrospectively from the date of the application of the claimant. It is pointed out by the learned Government Pleader that a Division Bench of this Court in the judgment in _**Pauly v. State of Kerala**_ reported in 2008 (1) KLT 933 has construed the effect of Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971. In the above decision in _**Pauly's case**_ supra, the Division Bench has held that Rule 18 stipulates that the freedom fighter's pension under the State rules will be granted only from the date of the sanction order and the same was challenged as arbitrary. It was contended before the Division Bench that pension has to be granted from the date of receipt of the application. The Division Bench held therein that the rules clearly provide for early consideration of 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 said Rules provide that the 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 Rule W.P.(C).5571/11 - : 7 :- 18 of the Pension Rules to suggest that the freedom fighter's 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 therein that there is no arbitrariness in Rule 18 of the Pension Rules. Paras 8 to 13 of the said ruling in _**Pauly’**_ s case (supra) read as follows: _“8. In Devkinandan Maheshwari's case, the Supreme Court was dealing with a situation which arose under the provisions of the M.P.Swatantra Sangram Sainik Samman Nidhi Niyam, 1972. In the said Nidhi Niyam, a rule had been incorporated, wherein it was said that the pension claims under the provisions of the Swatantra Sangram Sainik Samman Nidhi Niyam can be granted only from the date of the sanction of the pension and not from the date of the application. Before the Apex Court, the decision of the Apex Court in Mukund Lal Bhandari v. Union of India (1993) Supp. (3) SCC 2) was cited and a further contention was raised that in the said decision the apex Court had observed that the pension requires to be sanctioned not from the date of the order sanctioning the pension but from the date of the application. While distinguishing the aforesaid decision, the Apex Court in Devkinandan Maheshwari's case was pleased to observe that since the rule specifically provides that the pension requires to be sanctioned only from the date of the order and not from the date of the application, a freedom fighter is entitled for pensionary benefits under the Pension Rules only from the date of the sanction order and not from the date of the application._ _9. In the instant case, R.18 of the Pension Rules clearly stipulates that the pension sanctioned under the Pension Rules will be payable only from the date of issue of the sanction order. The Pension Rules provide sufficient safeguards, if for any reason, there is delay in considering the application filed by a freedom fighter for grant of freedom fighters pension. If a freedom fighter is of the opinion that there is unreasonable delay on the part of the authorities under the Pension Rules in considering the claim of the freedom fighter for grant of pension, either he can make a representation before the District Collector before whom the application is submitted for grant of freedom fighters pension, or in the alternative, approach the appropriate forum for appropriate directions. In fact, in R.20 of the Pension Rules, a specific procedure is provided for making of enquiries, the moment an application is filed by a freedom fighter for grant of freedom fighters pension. Under sub-cl.(x) of R.20 of the Pension Rules, it is made clear, that on receipt of an application by the District Collector from the freedom fighter, the Collector will watch whether the Tahsildar's report is received within a reasonable time and issue reminders, in case the report is not received within a reasonable time._ W.P.(C).5571/11 - : 8 :- _10. The learned counsel appearing for the appellant would submit that R.18 of the Pension Rules is arbitrary._ _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._ _12. 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._ _13. 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."_ 7. In the above decision, this Court has also relied on the decision in _**State of Madhya Pradesh & anr. v. Devkinandan**_ _**Maheshwari**_ reported in (2003) 3 SCC 183, which also dealt with similar provisions contained in the 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 application. It will be profitable to refer to para 8 of the judgment of the Apex Court in _**Devkinandan Maheshwari**_ ' _**s case**_ supra which reads as follows: _“8. In our view, the decision in the case of Mukund Lal Bhandari [1993 Supp (3) SCC 2] will have no application to the cases where pension has been sanctioned and payment is made under the provisions of the M.P. Rules, 1972. This Court in the case of Mukund Lal Bhandari [1993 Supp (3) SCC 2] had_ W.P.(C).5571/11 - : 9 :- _taken the view that pension would be payable with effect from the date of application in absence of any such rule providing as to from which particular date the pension would be payable. The Division Bench of the Madhya Pradesh High Court in the case of State of M.P. v. Anand Bihari[(2000) 1 MPLJ 130 (DB)] and later the Full Bench decision in the case of Jagannath Prasad v. State of M.P.[(2001) 2 MPLJ 542 (FB)] has rightly found that the decision in the case of Mukund Lal Bhandari [1993 Supp (3) SCC 2] is distinguishable and would not be applicable to the present case. The orders passed by the High Court under challenge in these appeals squarely relying upon the decision in the case of Mukund Lal Bhandari [1993 Supp (3) SCC 2], in our view, are not sustainable and they are liable to be set aside.”_ The aforesaid ruling in _**Devkinandan's case**_ 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 thereof as follows: “ _14. 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."_ 8. Subsequently, a learned Single Judge of this Court in the case _**State of Kerala v. Raghavan**_ reported in 2010 KHC 6238 = 2010 (3) KLT SN 19 (C.No.26) has held that even though Rule 18 of the Kerala Freedom Fighters' Pension Rules, 1971 provides that pension should be sanctioned only from the date of issuance of the sanction order, the said rule presumes that the application has been disposed of within a reasonable period and order passed on the W.P.(C).5571/11 - : 10 :- application for pension after the lapse of long 15 years in that case is arbitrary and that pension could be granted from the date of the application, etc. However, it is seen that the judgment of the learned Single Judge in _**Raghavan's case**_ supra has been rendered without being apprised about the Division Bench judgment of this Court in _**Pauly's case**_ reported in 2008 (1) KLT 933. Later a Division Bench of this Court in the judgment dated 5.3.2018 in W.A.No.1144/2017 [arising out of the judgment in W.P.(C).No.8314/ 2014] has held that the principles laid down in _**Raghavan's case**_ supra cannot have any application to the facts of the said case dealt with therein, where admittedly the sanction order was passed within three years. It will be profitable to refer to paras 3 and 4 of the abovesaid Division Bench judgment dated 5.3.2018 in W.A.No. 1144/2017, which read as follows: _“3. The Rules, in terms of which pension is paid to the appellant, contains Rule 18 which says that the pension sanctioned under these Rules will be payable from the date of issue of the sanction order. This Rule is not under challenge and, admittedly, the sanction order issued by the Government specified 07.10.2011 as the date. In the absence of any challenge to Rule 18 we believe that the appellant could not have sought the reliefs prayed for._ _4. The learned Counsel for the appellant relied on the judgment of this Court in_ _**State of Kerala v. Raghavan - 2010 (3) KLT SN 19** and also a Division Bench judgment of this Court in_ _**Pauly v. State of Kerala - 2008 (1) KLT 933** to contend that if there is inordinate delay in the Government passing orders, pension can be ordered to be paid from the date of application. To our mind these principles cannot have any application in the facts of this case, where, admittedly, order was passed within three years. We, therefore, do not find any reason to interfere with the impugned judgment.”_ W.P.(C).5571/11 - : 11 :- 9. Therefore, this Court is of the view that where there is inordinate and unexplained delay on the part of the respondent State authorities in considering and taking a decision on the application for grant of freedom fighter's pension, then the court in exercise of the powers under Art.226 could modulate the reliefs in appropriate cases so that pension under the State scheme may be directed to be given not merely from the date of the sanction order, but from an appropriate anterior date. This Court is fortified in taking this view, in the light of the specific observations made by the Division Bench of this Court in para 14 of the decision in _**Pauly's case supra**_ as well as the aforesaid observations of the Division Bench of the judgment in W.A.No. 1144/2017. This Court is of the view that, while exercising powers under Art.226 of the Constitution of India, this Court has ample powers to modulate reliefs by directing that the State authorities should grant pension under the State scheme not merely prospectively from the date of the sanction order but from an appropriate anterior date taking into account various facts and circumstances to adjudge as to whether the delay was inordinate and arbitrary. In the light of these aspects, this Court is of the view that in the instant case, there has been long and inordinate delay on the part of the respondent in sanctioning pension only on 17.7.2009 W.P.(C).5571/11 - : 12 :- (Ext.P-5) on the application filed as early as on 21.7.1981. The freedom fighter had died on 19.4.2002. The impugned Ext.P-7 order dt.24.1.2011 will stand set aside. The respondents will pass orders to sanction the continuous pension to the petitioner w.e.f. 20.4.2002 (after the death of the freedom fighter) and the arrears of continuous pension from 20.4.2002 to 16.7.2009, within 2 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C).5571/11 - : 13 :- |PETITIONERS|| |---|---| |EXHIBITS|| |P1|COPY OF THE APPLICATION DTD.21.7.81.| |P2.|COPY OF THE DEATH CERTIFICATE OF THE PETITIONERS HUSBAND| |P3.|COPY OF THE PETITION DTD.30.6.2002 BY THE PETITIONER BEFORE R2.| |P4.|COPY OF THE JUDGMENT OF THIS COURT DTD.25.11.2008.| |P5.|COPY OF THE ORDER DATED 17.7.2009.| |P6.|COPY OF THE PETITION DTD.24.3.2010.| |P7.|COPY OF THE ORDER DTD.24.1.2011.|