IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WA.No. 124 of 2008 -------------------------- AGAINST THE JUDGEMENT IN WPC.21680/2004 Dated 24/07/2007 .................... APPELLANT/PETITIONER: ------------------------------------- K.P.PAULY, KACHAPPILLY HOUSE, TANA, IRINJALAKUDA. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT/RESPONDENT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION, FFP-P DEPARTMENT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ W.A.No.124 of 2008 ------------------------------------------ Dated, this the 5th day of February, 2008 JUDGMENT H.L.Dattu, C.J. The appellant before us is a freedom fighter. He had approached the competent authority under the Kerala Freedom Fighters' Pension Rules, 1971 ('the Pension Rules' for short), inter alia claiming freedom fighters pension as provided under the Rules. The competent authority under the Pension Rules, after considering the application so filed by the appellant, has passed Ext.P2 order dated 20.5.2001 and in that has granted the freedom fighters pension from the date of the sanction order. 2. After receipt of Ext.P2 order, the appellant had filed Ext.P3 representation, inter alia, requesting the respondents to give him freedom fighters pension not from the date of the order, but from the date of filing of the application. That request of the appellant was rejected by the State Government by its order dated 22.12.2001. The applicant being aggrieved by the order so passed by the State Government was before this Court in O.P.No.30812 of 2002, inter alia, questioning the correctness or otherwise of Ext.P4 order dated 22.12.2001. This Court by its judgment dated 19.12.2003 had quashed Ext.P4 order and had directed the State Government to reconsider Ext.P3 representation filed by the appellant and pass appropriate orders within three months from the date of receipt of a copy of the judgment. 3. After the disposal of the aforesaid original petition, the State Government has passed yet another order dated 6.4.2004 (Ext.P5) rejecting W.A.No.124 of 2008 2 the claim of the appellant for grant of the pensionary benefits under the provisions of the Pension Rules from the date of the application. Aggrieved by the said order, the freedom fighter is before us once again in W.P.(C) No.21680 of 2004. 4. The learned Single Judge relying upon the observations made by this Court in the case of State of Kerala v. G.Madhavikutty Amma, in W.A.No.1818 of 2006, and the observations made by the apex Court in the case of State of M.P.and another v. Devkinandan Maheshwari, (2003) 3 SCC 183, has rejected the writ petition. Aggrieved by the said order passed by the learned Single judge the petitioner is before us in this writ appeal. 5. In the writ appeal, it is stated that the learned Single Judge was not justified in dismissing the writ petition on the ground that the matter is fully covered by the decision of this Court in W.A.No.1818 of 2006 and the dicta laid down by the apex Court in Devkinandan Maheshwari's case. The appellant also questions the vires of Rule 18 of the Pension Rules on the ground that the same is arbitrary. 6. We have heard Sri.K.G.Balasubramanian, learned counsel appearing for the appellant. 7. In W.A.No.1818 of 2006, the appellant was the widow of one late Achuthan Pillai who was a freedom fighter. He had filed application before the State Government for grant of freedom fighters pension and the said application was allowed by the State Government on 25th March, 2003 and even before the order could be passed, the freedom fighter, namely Achuthan Pillai had expired. Thereafter his wife after approaching the State Government had W.A.No.124 of 2008 3 approached this Court by filing a writ petition, inter alia, contending that she is entitled for freedom fighters pension from the date of the application and not from the date of the order sanctioning the pension. The learned Single Judge had rejected the writ petition and that is how the petitioner in the writ petition had approached this Court in W.A.No.1818 of 2006. This Court relying upon the observations made in Devkinandan Maheshwari's case, has rejected the writ appeal. 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. W.A.No.124 of 2008 4 9. In the instant case, Rule 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 Rule 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 clause (x) of Rule 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. 10. The learned counsel appearing for the appellant would submit that Rule 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 Article 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 W.A.No.124 of 2008 5 itself, the rule making authority has incorporated Rule 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 Rule 18 of the Pension Rules. 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 W.A.No.124 of 2008 6 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. The Registry is directed to send a certified copy of this judgment to the Principal Secretary, Ministry of General Administration (Freedom Fighters' Pension), Government of Kerala, for considering the proposals made by us in the course of our order. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns/DK.