K. Seethalakshmi v. The State of Kerala and The District Collector, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 17TH DAY OF AUGUST 2017/26TH SRAVANA, 1939** **WP(C).No. 38512 of 2010 (L) ----------------------------** **PETITIONER(S):** **-------------** **K.SEETHALAKSHMI,W/O.LATE KUNHIKRISHNA PODUVAL, AGED 67 YEARS, NO OCCUPATION, R/AT KARIPATH HOUSE,KELOTH,PAYYANNUR 670 307, KANNUR DISTRICT.** **BY ADV. SRI.R.SURENDRAN.** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA,REP.BY THE SECRETARY TO GOVERNMENT,GENERAL ADMINISTRATION (FEP-B)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE, KANNUR 670 001.** **BY GOVERNMENT PLEADER SRI. M.R DHANIL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DXY** **WP(C).No. 38512 of 2010 (L)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 : TRUE COPY OF APPLICATION DATED 09.09.1998 FILED BY THE PETITIONER. EXHIBIT P2 : TRUE COPY OF ORDER DATED 29.11.2005 ISSUED BY THE PRINCIPAL SECRETARY, GOVERNMENT OF KERALA. EXHIBIT P3 : TRUE COPY OF ORDER NO. M2-52321/05 DATED 11.01.2006 ISSUED BY DISTRICT COLLECTOR, KANNUR. EXHIBIT P4 : TRUE COPY OF PENSION PAYMENT ORDER DATED 29.03.2006 ISSUED BY THE ACCOUNTANT GENERAL, (A&E), KERALA. EXHIBIT P5 : TRUE COPY OF REPRESENTATION DATED 11.06.2006 PREFERRED BY THE PETITIONER. EXHIBIT P6 : TRUE COPY OF ORDER DATED 12.10.2006 ISSUED BY THE PRINCIPAL SECRETARY TO THE FIRST RESPONDENT AND ADDRESSED TO THE PETIONER.** ## **RESPONDENT(S)'EXHIBITS: NIL** ## **\\TRUE COPY\\** **PA TO JUDGE** **DXY** ## **ANIL K. NARENDRAN, J. ----------------------------------W.P.(C) No. 38512 of 2010 ---------------------------------Dated this the 17[th] day of August, 2017** ## **JUDGMENT** The petitioner is the widow of one Late K.K. Kunhikrishna Poduval, a freedom fighter, who died on 06.01.1996. During his life time, Poduval submitted an application for pension under the Kerala Freedom Fighters Pension Rules, 1971. According to the petitioner, the said application was made on 06.06.1993, which was not considered by the authorities concerned, during his life time. After the death of Poduval, the petitioner filed Ext.P1 application dated 09.09.1998 claiming pension under the said rules, as the widow of the Freedom Fighter. Based on Ext.P1 application, the petitioner was asked to produce certain additional documents. Finally the District Advisory Committee, which met on 08.11.2001 recommended her case for grant of pension. However, the Government rejected the application submitted by the petitioner due to the absence of certain W.P.(C)No.38512 of 2010 2 documents. Later, the petitioner produced those documents, based on which the Government vide Ext.P2 order dated 29.11.2005 sanctioned pension to the petitioner with effect from the date on which orders are issued in this regard. Pursuant to Ext.P2 order, the District Collector, Kannur, the second respondent herein, issued Ext.P3 order dated 11.01.2006 sanctioning payment of pension to the petitioner under the Kerala Freedom Fighters Pension Rules. Ext.P3 order was followed by Ext.P4 order dated 29.03.2006 of the Accountant General (A&E), Kerala by which the petitioner has been authorised to receive pension with effect from 11.01.2006, from the Sub Treasury concerned. 2. In terms of Exts.P2, P3 and P4 orders, the petitioner is entitled to receive pension only with effect from 11.01.2006, the date on which Ext.P3 order was issued by the second respondent. According to the petitioner she is entitled for pension with effect from 06.06.1993, the date on which her husband originally submitted application for pension. Pointing out the said aspect of the matter, the petitioner submit Ext.P5 representation dated 11.06.2006 before the Government, W.P.(C)No.38512 of 2010 3 which was turned down by Ext.P6 order dated 12.10.2006, on the ground that as per Rule 18 of the Kerala Freedom Fighters Pension Rules, pensions sanctioned under the said Rules is payable only from the date of sanction order. Feeling aggrieved by the said stand taken by the Government in Ext.P6, the petitioner is before this Court in this writ petition. 3. In the counter affidavit filed on behalf of the first respondent it has been stated that, going by the provisions under Rule 18 of the Kerala Freedom Fighters Pension Rules, the pension sanctioned to the petitioner is payable only with effect from the date on which sanction orders are issued by the second respondent. 4. The sole issue that arises for consideration in this writ petition is as to whether, the petitioner is entitled for payment of pension with effect from 06.06.1993, the date on which her husband originally applied for Freedom Fighters Pension. 5. The entitlement of the petitioner for pension is in terms of the Rule 18 of the Kerala Freedom Fighters Pension Rules, which provides that, the pensions sanctioned under the W.P.(C)No.38512 of 2010 4 said Rules will be payable from the date of issue of the sanction order. As per Rule 14, the District Collector shall be authority competent to sanction pension under the said Rules. 6. In the case of the petitioner, as borne out from Ext.P2 order of the second respondent, based on the recommendation made by the District Advisory Committee, the Government considered the claim of the petitioner, which was originally rejected due to the absence of certain documents. Later, the petitioner produced those documents, based on which the Government vide Ext.P2 order dated 29.11.2005 sanctioned pension to the petitioner with effect from the date on which orders are issued in this regard. Accordingly, the second respondent, who is the competent authority in terms of Rule 14, issued Ext.P3 order dated 11.01.2006 sanctioning payment of pension to the petitioner under the said Rules. In view of the provisions under Rule 18, the pension sanction vide Ext.P3 order is payable only from the date of issue of the sanction order, i.e., from 11.1.2006. 7. In **State of M.P. v. Devakinanda Maheswari [(2003) 3 SCC 183]** the main question that came up for W.P.(C)No.38512 of 2010 5 consideration of the Apex Court was as to whether the respondents therein are entitled to claim pension (Samman Nidhi) under the M.P. Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972 from the date of application or from the date of sanction of the pension. The High Court in all the cases, relying upon a decision of the Apex Court in **Mukundlal** **Bhandari v. Union of India [(1993) Suppl. (3) SCC 2]** held that pension was payable with effect from the date of application and not from the date of order sanctioning the pension. The case of the appellants therein was that the decision in the case of Mukundlal Bhandari's case (supra) would not be applicable to the cases governed by the M.P. Rules, 1972, inasmuch as, Mukundlal Bhandari's case (supra) was decided in relation to the Central Pension Rules, i.e., Freedom Fighters Pension Scheme, 1972. The M.P. Rules, 1972 have different provisions more particularly after the amendment effected by adding clause (6) in Rule 3, which was given effect to since the commencement of the Rules, which provides that, Freedom Fighter will be entitled to claim the benefits of Samman Nidhi from the date of passing the order. W.P.(C)No.38512 of 2010 6 Since there have been conflicting decisions of different Benches, the matter was referred to a Full Bench in Writ Petition No.1317 of 1993 (Jagannath Prasad v. State of Madhya Pradesh and others) which has been decided on 16.2.2001. The Full Bench held that the decision in the case of Mukundlal Bhandari's case (supra) would not be applicable to the cases governed by the M.P. Rules, 1972. The question referred to the Full Bench was to the following effect: "Whether a Freedom Fighter is entitled to pension from the date of order and the rules amended on 08.03.1999, will have prospective or retrospective effect?" The above question has been answered as follows: "Consequently, the answer to the question referred to is that the Freedom Fighter is entitled to pension from the date of order and not from the date of application, and further that the rules amended on 08.03.1999, will have retrospective and not prospective effect". Therefore, the Apex Court held in Devakinanda Maheswari's case (supra) that, the decision in the case of Mukundlal Bhandari's case (supra) 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. The Apex Court, W.P.(C)No.38512 of 2010 7 in the case of Mukundlal Bhandari's case (supra), had 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 Madhya Pradesh v. Anand Bihar (supra) and later the Full Bench decision in the case of Jagannath Prasad v. State of Madhya Pradesh (supra) has rightly found that the decision in the case of Mukundlal Bhandari's case (supra) is distinguishable and would not be applicable to a case under the the M.P. Rules, 1972. Accordingly, the Apex Court set aside the orders passed by the High Court under challenge in those appeals, which were issued squarely relying upon the decision in the case of Mukundlal Bhandari's case (supra). 8. In the instant case, going by Rule 18 of the Kerala Freedom Fighters Pension Rules, the pension sanctioned to the petitioner is payable only from the date of issue of the sanction order. As per Rule 14, the second respondent District Collector is the authority competent to sanction pension under the said Rules, who has issued Ext.P3 order dated 11.01.2006 W.P.(C)No.38512 of 2010 8 sanctioning payment of pension to the petitioner and as such, the petitioner is entitled for payment of pension only from the date of issue of the sanction order, i.e., from 11.1.2006. Since the request made by the petitioner in Ext.P5 representation dated 11.06.2006 seeking sanctioning of pension with effect from 06.06.1993, the date on which her husband originally submitted application for pension, was contrary to the provisions under Rule 18, the said request was rightly turned down by the Government in Ext.P6 order dated 12.10.2006. In the result the writ petition is fails and the same is accordingly dismissed. **Sd/ANIL K. NARENDRAN JUDGE** Dxy