Kerala Ex-Servicemen Welfare Association v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936** ## **WP(C).No. 18252 of 2011 (S)** ## **-------------------------------------------** ## **PETITIONER:** - **-------------------** **KERALA EX-SERVICEMEN WELFARE ASSOCIATION, REGD.NO.ER 302/94, CIVIL STATION, KUNNUMPURAM ROAD, KAKKANAD, KOCHI - 682 030,** **REPRESENTED BY ITS PRESIDENT, COL.K.B.R.PILLAI(RETD), 1C-17060L, AGED 72 YEARS, S/O.K.BHASKARAN PILLAI, RESIDING AT A-1, SAINIK VIHAR, KUSUMAGIRI P.O, KAKKANAD, KOCHI - 30.** **BY ADVS.SMT.A.G.ANEETHA SMT.M.KABANI DINESH** **RESPONDENTS:** **------------------------** **1. UNION OF INDIA,** - **REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110 011.** - **ADDITIONAL R2 & R3 IMPLEADED** **2. SECRETARY, EX-SERVICEMEN WELFARE DEPARTMENT, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110 011.** **3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **ARE IMPLEADED AS ADDITIONAL RESPONDENTS NOS. 2 & 3 VIDE ORDER DATED 19.08.2011 IN I.A.NO.13581 OF 2011.** - **** ADDITIONAL R4 IMPLEADED** **4. M.DEVOO, AGED 80 YEARS, W/O. LATE.E.ACHUTHAN, (EX-L/NK NO.81183), MAMBALLY HOUSE, POOKODE POST, PATHAYAKKUNNU VIA, KANNUR, PIN - 670 691.** Msd. **..2/-** **..2..** **WP(C).No. 18252 of 2011 (S)** **----------------------------------------** **** IS IMPLEADED AS ADDITIONAL RESPONDENTS NO.4 VIDE ORDER DATED 06.09.2012 IN I.A.NO.11484 OF 2012.** **R1 & R2 BY SRI.P.PARAMESWARAN NAIR, ASG OF INDIA BY SRI.T.SANJAY, CGC** **R3 BY SPL.GOVERNMENT PLEADER SMT.GIRIJA GOPAL ADDL.R4 BY ADVS. SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-02-2014, THE COURT ON 11-04-2014 DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 18252 of 2011 (S)** **----------------------------------------** ## **APPENDIX** ## **---------------** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** **EXT.P1: COPY OF ORDER OF SOUTHERN COMMAND OF ARMY GRANTING MEDICAL FACILITY TO SECOND WORLD WAR VETERANS. EXT.P2: COPY OF NEWSPAPER REPORT DATED 20-11-2004 ABOUT THE OPERATION TO REMOVE SHELLS FROM STOMACH OF AN INMATE. EXT.P2(A): ENGLISH TRANSLATION OF EXT.P2. EXT.P3: COPY OF REPRESENTATION DATED 15.01.2000 SENT TO THEN PRIME MINISTER BY PETITIONER SOCIETY & 247 EX-SERVICEMEN. EXT.P4: COPY OF REQUEST LETTER DATED 23.02.2000 SENT TO CHIEF OF ARMY STAFF BY PETITIONER SOCIETY. EXT.P5: COPY OF JUDGMENT DATED 22.05.2009 IN OP.NO.17371/2000. EXT.P6: COPY OF REPRESENTATION DATED 10.06.2009 SENT TO RESPONDENT. EXT.P7: COPY OF ORDER OF FIRST RESPONDENT DATED 04.11.2009 REJECTING THE REQUESTS OF PETITIONERS. EXT.P8: COPY OF JUDGMENT DATED 23.09.2010 BY ARMY TRIBUNAL. EXT.P9: COPY OF ORDER OF RESPONDENT DATED 12.01.2011 ALONG WITH ENCLOSED LETTER TO CHIEF SECRETARY. RESPONDENT(S)' EXHIBITS: -----------------------------------------** **EXHIBIT R1(A): TRUE COPY OF THE LETTER DATED 21.12.2009. EXHIBIT R4(A): TRUE COPY OF THE CERTIFICATED OF SERVICE OF LATE SHRI.E.ACHUTHAN. EXHIBIT R4(B): TRUE COPY OF THE IDENTITY CARD OF WIDOW OF EX-SERVICEMEN ISSUED TO THE ADDITIONAL 4TH RESPONDENT IN THE WRIT PETITION BY ZILA SAINIK WELFARE OFFICER.** ## **//TRUE COPY//** ## **P.S.TO JUDGE.** Msd. ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.P.C.No.18252 of 2011 ---------------------------------------- Dated this the 11[th] day of April 2014 ## **J U D G M E N T** ## **A.M.SHAFFIQUE, J** This writ petition is filed seeking the following reliefs: _“i) Issue a writ, order or direction in the nature of certiorari, quashing Ext.P9 order of 1[st] respondent directing them to reconsider the case of Second World War Veterans considering all the directions issued by the Hon’ble Army Tribunal in its proper perspective; or to_ _ii) issue a writ, order or direction commanding the respondent to provide sufficient means to the vanishing class of Second World War Veterans for leading a dignified life in their old age;”_ 2. The petitioner is a charitable society formed with an object to promote the welfare of Ex-servicemen who had served the defence forces during the Second World War for less than 10 years. W.P.C.No.18252/2011 2 3. This writ petition is filed in the form of a public interest litigation to ventilate the grievance of such personnels who did not have the requisite 10 years service for getting pension and other benefits. Though several representations were filed before the competent authorities, finally by Ext.P9, the Government of India, Ministry of Defence had issued the following order: _“The issue has been examined afresh. Exservicemen with service less than 15 years are not entitled to pension as it is a mandatory requirement for a Personnel Below Officer Rank (PBOR) to render 15 years and for Commissioned Officers 20 years qualifying service to earn pension. Minimum qualifying service is an essential criterion for pension in the Government and no change in the existing policy is contemplated._ _It is felt that the pension cannot be given without linkage to a minimum period of service, else the concept of pension will be altered radically. Financial assistance is already being given by State/UT Govts. A letter has gone at the_ W.P.C.No.18252/2011 3 _level of Secretary (ESW) to the States/UTs from this Department for enhancing the financial assistance to minimum level of Rs.3,000/- p.m. Copy of the letter dated 21/12/09 written by Secretary (ESW) to the Chief Secretaries is enclosed. Some of them have considered the request favourably and enhanced the financial assistance in the region of Rs.3000/- to Rs.5000/p.m.”_ 4. According to the petitioner, such an order is absolutely is arbitrary and unreasonable. The petitioner contends that they had fought against Japanese invaders and Pakistanis in Kashmir and merely for the reason that they had only less than 10 years of service, they should not be denied pension when similarly placed INA personnels and Jawans who participated in the army mutiny were given pension in one name or the other. 5. During the pendency of this writ petition, an interim order was passed on 06/07/2011 directing the respondent to make an interim payment of atleast an W.P.C.No.18252/2011 4 amount of Rs.3,000/- per month to each of the World War II veterans, whose claims are the subject matter of the instant Writ Petition. As matters stand now, it is mentioned that the directions are being complied with. 6. Counter affidavit is filed on behalf of respondents inter alia stated as under: _“The matter has been examined by the respondents. The Ex-servicemen with 10 years or more of qualifying service released after World War-II due to reduction of the Indian Army and demobilization were granted Mustering out Pension and OTI (one time increase). Those invalided on disability found attributable to military service were given disability pension. The issue of grant of pension to those World War II veterans with less than 10 years of service was looked into by the Committee on problems of ExServicemen (ESM) headed by the then Additional Secretary in 1993. The Committee acknowledged the pitiable financial condition of the World War II veterans. It was of the view that pension cannot be given without linkage to minimum period of_ W.P.C.No.18252/2011 5 _service. To grant pension with such a minimum period of service will radically alter the concept of pension itself and will open flood gates for similar demands from others._ _Majority of States/Union Territories are either giving an exclusive pension to non-pensioners of World War II or Old Age pension to the Exservicemen domiciled in their States. The proposal for grant of Ex-gratia pension to World War II veterans has been examined on earlier occasions at the highest level and has not found favourable response because of its various ramifications. The issue was also considered by the then Raksha Mantri’s Committee, set up to evolve national policy for the welfare of Jawans and Ex-servicemen, in its report submitted in June, 2003. The Committee did not recommend the grant of minimum pension to World War I & II veterans as they rendered 2 to 6 years’ service in the British Indian Army. In view of the position explained, there is no scope for grant of pension to World War II veterans._ _The above discussion need not lead to the conclusion that World War-II veterans have been_ W.P.C.No.18252/2011 6 _totally left in lurch. Majority of States/Union Territories are either giving an exclusive pension to non-pensioners of World War-II or Old Age pension to the Ex-Servicemen domiciled in their States at varying rates. Secretary (ESW)/Ministry of Defence has also written to Chief Secretaries of all the States/UTs on 21[st] December 2009 to grant financial assistance to the World War-II veterans and their widows at a minimum level of Rs.3000/p.m._ _As regards the direction of the Honourable Court directing the UOI/Ministry of Defence to make an interim payment of at least amount of Rs.3000/- p.m to each of the World War II Veterans (based on the Ministry of Defence letter dated 21/12/2009 to all the Chief Secretaries of the States/UTs), it is submitted that in the Federal set up, the Centre can only suggest and request the States to enhance their ex-gratia amount to these veterans. However, it is for the States/UTs to implement the suggestions of the Central Govt./Ministry.”_ 7. Counter affidavit is filed by the 3[rd] respondent stating that grant of military pension is a subject to be W.P.C.No.18252/2011 7 considered by the Government of India and the Government of Kerala has only introduced monthly financial assistance scheme with effect from 01/06/1997 to Second World War veterans belonging to State of Kerala who are not in receipt of pension or other pensionary benefits from other sources. According to them, they are only providing financial assistance to the old age World War veterans belonging to the State and whose annual income is less than Rs.10,000/-. In so far as the Government of India had fixed the qualifying service for military pension as ten years, State of Kerala cannot do anything in the matter. 8. Having regard to the above factual situation, nothing has been brought to our notice to indicate that the petitioner has any legal right to demand the reliefs sought for. The only contention raised by the petitioner is that there is arbitrariness and unreasonableness in the action of the Government in refusing pension to them. It is contended that the Government has formulated various schemes for W.P.C.No.18252/2011 8 granting pension to freedom fighters coming under various categories, and failure to consider the members of the petitioner organisation at least in par with them amounts to arbitrariness. 9. In so far as appropriate rules have been framed by the Government for payment of pension to war veterans and a minimum qualifying period is prescribed, it cannot be contended that such a decision is arbitrary in any manner. The entire issue had been considered by the Government of India, Ministry of Defence and they have clearly expressed in Ext.P9 that no modification could be made to the earlier stand. Nothing is brought to our notice regarding any infirmity in Ext.P9. 10. It is true that different categories of freedom fighters are given pension under various schemes formulated by the Government. But the said schemes were framed based on policy decisions. This Court cannot direct the Government to frame a policy which they have W.P.C.No.18252/2011 9 considered at different levels and rejected. It is settled law that Courts do not normally interfere in matters affecting policy as held in **Narmada Bachao Aandolan v. State of Madhya Pradesh (AIR 2011 SC 1989)** . The demand is concerning pension to be paid for rendering service, which is permissible only if the service conditions permits. Hence we do not find any merit in the above writ petition and the same is dismissed. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.18252/2011 10 W.P.C.No.18252/2011 11