Union of India v. M.S. Mohammed Rawther

Case Details & Bench

Court: High Court
Hon'ble Judges: A.K. Mathur
Markandey Katju
Judgment Date: 2007-08-16
Court Decision / Holding: APPEAL DISPOSED OF. The Division Bench’s order directing grant of SSS Pension is set aside. The matter is remitted to the Union of India to consider and pass an appropriate order in accordance with law, preferably within six months from today. If entitlement is established, arrears shall be paid to the petitioner or, given the petitioner’s death, to his legal heirs.
Final Disposition: Appeal disposed of.

Parties to the Case

Appellants / Petitioners

Union of India

Respondents

M.S. Mohammed Rawther

Legal Representation & Advocates

Counsels for Petitioners

• Paramjit Singh Patwalia
• Amanpreet Singh Rahi
• V. Mohana
• Sushma Suri

Counsels for Respondents

• Sanjay Parikh
• A.N. Singh
• Jitin Sahni

Case Synopsis & Summary

This appeal concerns the Swatantrata Sainik Samman Pension Scheme, 1980 and the entitlement to the Swatantrata Sainik Samman Pension (SSS Pension) sought by the respondent, a veteran. The Kerala High Court, in a writ appeal, directed the Union of India to grant the pension to the petitioner with retrospective effect from 9.9.1989 and to pay arrears within two months. The Union of India challenged this order before the Supreme Court. The Court held that the Division Bench’s direction to grant pension was improper because it required a factual investigation and assessment of eligibility which, under the scheme and the constitutional framework, is an executive function. The judiciary cannot encroach into the executive or legislative domains, nor substitute for it by conducting fact-finding. The court’s role is limited to judicial review under the Wednesbury principle of arbitrariness; if an executive decision is unjustified, it should be set aside and remitted for fresh decision, not performed by the court. The matter must be considered with all material, and if entitlement is found, arrears are payable to legal heirs since the respondent had died. The Court set aside the Division Bench order and remitted the matter to the Union of India to decide in accordance with law, ideally within six months."

Provisions of Law Cited

Swatantrata Sainik Samman Pension Scheme, 1980

Legal Doctrines & Maxims

Wednesbury principles
Montesquieu's theory of separation of powers

Submissions & Arguments

Contentions of Appellants / Petitioners

The Union of India contends that the Division Bench exceeded its judicial remit by directing grant of SSS Pension without a thorough factual inquiry. It submits that the Swatantrata Sainik Samman Pension Scheme, 1980 entrusts the executive with eligibility assessment based on evidence and material; the court’s role is to review for arbitrariness under the Wednesbury standard, not to substitute for the executive or undertake fact-finding. If an executive order is not justifiable, the court may set it aside and remit for a fresh decision, but cannot assume executive power. The matter should be remitted for fresh consideration, ensuring due opportunity for the respondent’s heirs where applicable, and arrears should be computed if entitlement is established.

Contentions of Respondents

The respondent (through counsel) sought pension under the SSS Pension Scheme, 1980 and the Kerala High Court’s writ appeal directed the Union to grant pension. The respondents argue that the matter involves factual and evidentiary considerations already available in the record and that the executive must determine entitlement in accordance with the scheme. The Division Bench correctly insisted on proper factual scrutiny and compliance with the scheme’s terms; the court’s role is to ensure lawful exercise of power and avoid arbitrariness, not to substitute for the administrative decision-making process.

Extracted Judgment Text

Exact text extracted from official judgment records.

## UNION OF INDIA _v._ ## M.S. MOHAMMED RA WTHER AUGUST 16, 2007 [A.K. MATHUR AND MARKANDEY KA TJU, JJ.] _Swatantarata Sainik Samman Pension Scheme, I 980:_ _Claim for pension-In writ petition Single Judge of High Court directing Union of India to consider and pass appropriate order on petitioner's_ C _application-Division Bench in appeal directing Union of India to grant pension to petitioner w.ef 9.9.1989-Held: The Course adopted by Single Judge was correct as the matter required necessary investigation of factslt is the duty of the State and the Union of India to consider all material on the subject and whether it is a case worth granting pension under the_ D _Scheme-Court cannot encroach into executive or legislative domain and assume the role of investigation of facts-It has only judicial power to review the executive order on Wednesbury principles, but cannot arrogate to itself power of the executive-Court must exercise judicial restraint in such mattersOrder of Division Bench of High Court is set aside-Judicial review-Judicial restraint._ E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7336 of2002. From the final Judgment and order dated 29.06.2001 of the High Court ofKerala at Emakulam in Writ Appeal No. 2488 of2001. F Paramjit Singh Patwalia, Amanpreet Singh Rahi, V. Mohana and Sushma Suri for the Appellant. Sanjay Parikh, A.N. Singh and Jitin Sahni for the Respondent. The Order of the Court was delivered by G ## **ORDER** -~ Heard learned counsel for the parties. H 109 110 (2007) 9 S.C.R. · ## SUPREME COURT REPORTS A This appeal is directed against the order of the Division Bench of the High Court of Kerala whereby the Division Bench of the Kerala High Court has directed the Union of India to grant Swatentrata Samman Sainik Pension (for short SSS Pension') to the petitioner (respondent herein) as claimed by him in his Original Petition with effect from 09.09.1989 and the amount should B be paid within a period of two months. Aggrieved against this order, the present appeal has been filed by the Union of India. We have heard learned counsel for the parties and perused the record. C The Division Bench was hearing an appeal against the order passed by the learned Single Judge whereby the learned Single Judge had given a direction to the Union of India to consider and pass an appropriate order on the petitioner's application for grant of SSS Pension to the writ petitioner. The learned Single Judge quashed Exh.P-6 and Exh.P-8 (the orders passed by the D Union of India rejecting the petitioner's prayer for pension) and remitted the matter back to the Union of India to consider the matter afresh after providing a necessary opportunity to the respondent for considering his prayer for grant of the SSS pension. Aggrieved by this order, the matter was taken up by the appellant before the Division Bench on which the Division Bench passed the impugned order. Hence the present appeal by the Union of India. E We have heard learned counsel for the parties and perused the record. We are of the opinion that the course adopted by the learned s:ngle Judge was the correct course and the matter should have been remitted back to the Union of India to decide the. question of grant of freedom fighter's pension F afresh. It required necessary investigation of facts as to whether the incumbent was entitled to SSS pension or not. The courts cannot encroach into ·the executive or legislative domain, and cannot assume the role of investigation of facts. It is the duty of the State and the Union of India to have considered all the material on the subject and consider whether it is a case worth granting pension as per the SSS Pension Scheme, 1980. The court has only judicial G power to review that executive order on Wednesbury principles, but it cannot arrogate to itself the power of the executive. If the order passed by the Union of India is not justifiable on Wednesbury principles the court can only set it aside and remit the matter back to the executive for a fresh decision, but the court cannot assume the power of the Unicn of India. The court must exercise judicial restraint in such matters. There is broad separation of powe!"s H under the Constitution, and one organ of the State should not ordinarily 111 U.0.1. v. M.S. MOHAMMED RAWTHER c ' encroach into the domain of another. Montesquieu's theory broadly applies A in India too. Accordingly, we set aside the order of the Division Bench and remit the matter back to the Union of India. The Union of India shall consider and pass an appropriate order in accordance with law preferably within a period of six • months from today. We have been informed that the respondent herein has already expired. In case it is found that he was entitled to pension then all his arrears should be worked out and shall be given to his legal heirs. The appeal is disposed of. accordingly. RP. Appeal disposed of. '