Khadeeja vs Union of India and Others

_**WP(C).3985/21**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944** **WP(C) NO. 3985 OF 2021** ## **PETITIONER/S:** KHADEEJA AGED 65 YEARS W/O.LATE M.M. ALIKUJU, NO.68700988, EX-CT, MATHRAKATTU HOUSE, ADIVAD, PALLARIMANGALAM P.O., VIA POTHANICADU, ERNAKULAM, KERALA PIN 686 671. BY ADVS. P.ALI SRI.A.MUHAMMED HASHIM ## **RESPONDENT/S:** 1 UNION OF INDIA REP.BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI 110 001. 2 THE DIRECTOR GENERAL BORDER SECURITY FORCE, FLOOR -10, CGO COMPLEX, LODHI ROAD, NEW DELHI 110 001. 3 THE COMMANDANT 70 BN, BORDER SECURITY FORCE, SINGHPURA, DISTRICT BARAMULLA, JAMMU AND KASHMIR 193 103. 4 PAY AND ACCOUNTS DIVISION BORDER SECURITY FORCE, PENSION NE SECTION, PUSHPA BHAVAN, MADANGIR, NEW DELHI 110 062 5 THE MANAGER STATE BANK OF INDIA, CENTRALISED PENSION, PROCESSING CENTRE, 3RD FLOOR, CHEMPIKALAM BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014. BY ADVS. SRI.M.L.SURESH KUMAR, CGC SRI.P.RAMAKRISHNAN, SC, STATE BANK OF TRAVANCORE _**WP(C).3985/21**_ 2 ## **OTHER PRESENT:** ASG S. MANU; SC FOR SBI M. JITESH MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**WP(C).3985/21**_ 3 ## **V.G.ARUN, J. ----------------------------------------------W.P(C).No. 3985 of 2021 ----------------------------------------------Dated this the 28[th] day of June, 2022** ## **JUDGMENT** The petitioner’s husband M.M.Alikunju was a Constable in the Border Security Force. He joined the BSF on 12.9.1968 and took voluntary retirement on 1.11.1988. Pension was sanctioned to Alikunju as per Ext.P1 Pension Payment Order, but the Admissible Fixed Medical Allowance (FMA) was not released to him. After repeated representations in that regard, the 4[th] respondent issued Exhibit P4 dated 05.01.2015, informing Alikunju that the State Bank of India, Perumbavoor Branch had been asked to release his FMA with effect from November, 2019. But the Branch Manager was not prepared to release the amount without obtaining further clarification from the BSF. When this matter was informed to the BSF authorities, Alikunju was issued with Ext. P3 letter, reiterating that the Branch Manager was directed to release the amount. While so, Alikunju expired on 06.02.2018, after prolonged illness. 2. After the death of her husband, the petitioner also represented about non-disbursal of the FMA. Finally Ext P5 was _**WP(C).3985/21**_ 4 issued on 26.05.2020, revising the family pension by including FMA at the rate of Rs. 1000/- per month from November 2019. The petitioner contends that her late husband was entitled for medical allowance from the date of his retirement, i.e., 1.11.1988 up to his death on 6.2.2018. Thereafter, the petitioner was to be paid medical allowance up to November, 2019. Hence, the writ petition seeking the following reliefs; _“i) call for the records leading for non-payment of the entitled fired medical allowance on retirement to exconstable Late M.M Alikunju from the date of his retirement till his death ie 1.11.1988 till 06.02.2018 and the petitioner till 1.11.2019_ _ii) issue a writ of mandamus or any other writ, order or direction commanding 4th respondent to sanction the fixed medical allowance entitled to Ex - Constable, Late M.M Alikunju from the date of his retirement on 1.11.1988 till his death on 6.2.2018._ _iii) issue a writ of mandamus or any other writ, order or direction commanding 4th respondent to sanction the fixed medical allowance entitled to petitioner, the family pensioner of Ex-Constable, Late MM Alikunju from 06.02.2018 to 01.11.2019._ _iv) to direct the 4th respondent to pay penal interest at the rate of 18% per annum for the whole amount of_ _**WP(C).3985/21**_ 5 _fixed medical allowances for the entire period from 01.11.1988 to 01.11.2019.”_ 3. Learned Counsel for the petitioner contended that FMA is a right conferred on serving as well as retired personnel and their families. The petitioner’s husband was entitled for FMA from the date of his retirement on 01.11.1998. In spite of such entitlement FMA is granted the allowance only from 1.11.2019. Alikunju had suffered from Cancer during the last years of his life and huge amounts had to be spent for his treatment. The respondents are therefore bound to pay the FMA due to Alikunju with interest at 18% per annum. The Apex Court decision in _Vijay L. Mehrotra v State of U.P and others_ [2000(2) SLR 686] is cited in support of the claim for interest. 4. Respondents 1 to 4 have filed counter affidavit raising the following contentions; 5. After retiring from BSF on 01.11.1998, Ex-Constable M.M.Alikunju had represented to the Commandant about non-receipt of Central Government Health Scheme(CGHS) allowances only in November, 2014. On receipt of the representation, the Branch Manager, SBI Perumbavoor was addressed _vide_ letter dated 19.11.2014, directing to release eligible Medical Allowance to Alikunju. Thereupon, the Assistant General Manager, SBI Centralised Pension Processing Centre, informed that medical allowance had not been sanctioned to Alikunju and sought clarification whether medical allowance is payable by virtue of Government Order No.4/25/2008- _**WP(C).3985/21**_ 6 B&W(D) dated 19.11.2014, even if the allowance is not sanctioned by the Pension Payment Order. Thereupon, the issue was taken up by the Personnel and Administration Department at New Delhi. While so, Alikunju died and his wife submitted representation dated 2.11.2019 regarding non-receipt of medical allowance. After processing the representation, she was informed that FMA at the rate of Rs.1,000/- per month was sanctioned with effect from 1.11.2019. 6. It is stated that the Government of India had implemented the recommendation of the Fifth Central Pay Commission for grant of fixed medical allowance @ Rs.100/-to pensioners/family pensioners residing in areas not covered by CGHS. Existing pensioners had to opt for medical allowance and submit an undertaking to the effect that they are entitled to medical facilities under CGHS, but are residing in areas where no such outdoor facility is available. Based on the undertaking, the Pension Disbursing Authorities would make an entry as to the grant of medical allowance in both halves of PPO of the individual concerned and authorise payment of medical allowance. No such undertaking was filed by Alikunju during his lifetime. Even then, on receipt of Alikunju’s representation regarding non-payment of medical allowance, immediate steps were taken by directing the Branch Manager concerned to release the amount. Even though the order directing release of the amount was issued only in 2020, that is given effect from November, 2019. On finding that M.M.Alikunju had first applied for FMA on 02-04-2015, Ext.R3(l) was issued to the Bank to release medical allowance arrears @ Rs. 500/- _**WP(C).3985/21**_ 7 per month with effect from 02.04.2015 and Rs.1,000/- per month with effect from 01.07.2017 up to October 2019. 7. The fifth respondent Bank has stated that, for availing the benefit of FMA, pensioners have to submit an undertaking to the effect that they are entitled to medical facilities under the CGHS or other similar scheme, but are residing in areas where no outdoor facilities are available. Though this benefit of FMA was available with effect from 1.12.1997, late Alikunju had sought release of medical allowance only during December, 2014. Thereupon, he was advised to submit option letter along with certificate of non-membership from CGHS, which he did not comply with. Later, on receipt of Exhibit P5, medical allowance along with arrears was released to the petitioner. 8. Heard Adv.P.Ali for the petitioner, M.L.Suresh Kumar, for the the Central Government and P.Ramakrishnan, for the fifth respondent. 9. From the arguments advanced and documents produced, the following undisputed facts emerged; 10. The petitioner's husband Alikunju had retired from service on 1.11.1988. Much later, _vide_ Exhibit R3(h) dated 19.12.1997, the Central Government introduced the scheme for grant of Fixed Medical Allowance to pensioners residing in areas which are not covered under CGHS. The relevant portion of Exhibit R3(h) reads as under; _“4. In the case of existing pensioners if they opt for medical allowance, an undertaking shall be required to be_ _**WP(C).3985/21**_ 8 _submitted by claimants to the effect that thyey are entitled to medical facilities under CGHS or other similar scheme administered by the Central Government but are residing in are is where no such outdoor facilities are available. On the basis of this undertaking, pensioner disbursing authorities shall make an entry in regard to grant of medical allowance in the both halves of PPO of the individual concerned and authorities payment of medical allowance. Such an undertaking can be obtained by Bank, Department PAO and Treasury once every year along with other certificates, the pensioner is required to furnish. As and when grant of medical allowance to a pensioner/family pensioner is authorised by the pension disbursing authority, intimation to this effect shall be sent to the CPAO/Concerned pay & Accounts Office in the prescribed proforma.”_ Subsequently, by Exhibit R3(h1) dated 5.8.2019 it was clarified that the retirees/pensioners, who retired after 1.12.1997 but did not exercise option for FMA immediately after retirement would not be entitled to FMA with effect from the month following their month of retirement. However, they may be allowed FMA with effect from the date of application for FMA, if FMA is otherwise admissible to them. The petitioner's husband had applied for FMA in 2015 and the same was sanctioned with effect from 2.4.2015. The benefit of such sanction was not released to the petitioner's husband. Later, by Exhibit P5, FMA was sanctioned to the petitioner with effect form November, 2019. By Exhibit R3(l) order issued in May, 2021, the benefit of FMA is given retrospective effect from 2.4.2015 onwards. 11. Going by Exhibits R3(h) and R3(h1), it is evident that _**WP(C).3985/21**_ 9 pensioners will become entitled for FMA only on submission of application for that purpose. The petitioner's husband had submitted the application only in 2015 and by Exhibit R3(l), FMA has been sanctioned with effect from the date on which the application was processed and allowed. Therefore, the petitioner's claim for FMA from an anterior date cannot be countenanced. 12. The only other question is whether the petitioner is entitled to interest for the delayed payment of medical allowance. The very purpose of FMA being to aid the pensioners at times of ill health and the petitioner's husband having been denied the benefit even when he was under treatment for cancer, I find the petitioner to be entitled for interest on the delayed payment of FMA from 2.4.2015 to November, 2019. For arriving at this conclusion, I take guidance from the decision of the Supreme Court in _Vijay L. Mehrotra (_ supra) In the result, the writ petition is decided as under; The prayer for fixed medical allowance from 1.11.1998 onwards is rejected. The petitioner is found to be entitled for interest on the delayed payment of FMA from 2.4.2015 to November, 2019. Respondents 2 to 4 shall pay interest at the rate of 6% on the amount sanctioned towards fixed medical allowance for the period, 2.4.2015 to 1.11.2019. Sd/- ## **V.G.ARUN, JUDGE** _vgs_ _**WP(C).3985/21**_ 10 ## **APPENDIX OF WP(C) 3985/2021** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PENSION PAYMENT ORDER ISSUED BY THE 4TH RESPONDENT DATED 17.11.1988. EXHIBIT P2 TRUE COPY OF THE LETTER NO.HA/MED ALLOW/70 BN/15/1710 OF THE 3RD RESPONDENT DATED 5.11.2015 EXHIBIT P3 TRUE COPY OF THE LETTER NO.HA/MED ALLOW/70 BN/16/2666-68 OF THE 3RD RESPONDENT DATED 19.2.2016 EXHIBIT P4 TRUE COPY OF THE LETTER NO.PAD/PAO NE/ (PN/TASK-11) (70BN) BSF/2020 OF THE 4TH RESPONDENT DATED 1.5.2020 EXHIBIT P5 TRUE COPY OF THE ORDER OF REVISION OF PENSION ORDER NO.240558806615/3976776/A3 DATED 26.5.2020 EXHIBIT P6 TRUE COPIES OF SERIES OF DISCHARGE SUMMARY. Exhibit P7 TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT AS PER NO.PAD(70 BN/BSF)/NE/T-01/BSF/2021 DATED 27/7/2021 Exhibit P8 TRUE COPY OF THE ORDER NO.45/57/97-P&PW(C) DATED 19/12/1997 OF THE 1ST RESPONDENT. Exhibit P9 TRUE COPY OF THE ORDER NO.4/25/2008-P&PW(D) DATED 19/11/2014 OF THE 4TH RESPONDENT Exhibit P10 TRUE COPY OF THE CIRCULAR NO.130 DATED 7/1/2015 OF THE 4TH RESPONDENT Exhibit P11 TRUE COPY OF THE ORDER NO.4/34/2017-P&PW(D) DATED 19/7/2017 OF THE 4TH RESPONDENT. Exhibit P12 TRUE COPY OF THE JUDGMENT REPORTED IN 2000(2) SLR 686