IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WA.No. 331 of 2008(D) ------------------------------------- AGAINST THE JUDGEMENT IN WPC.10773/2004 Dated 19/07/2007 .................... APPELLANT(S): RESPONDENTS IN THE WPC: --------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, OFFICE OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE COMMANDANT, MALABAR SPECIAL POLICE, MALAPPURAM DISTRICT. BY SPL. GOVERNMENT PLEADER SRI. N. MANOJ KUMAR. RESPONDENT(S): PETITIONER IN THE WPC: ------------------------ LUCY LONAPPAN, W/O.LONAPPAN, PC 1792, M.S.P.MALAPPURAM, RESIDING AT PONNAKKAL HOUSE, PUTHUVYPE, COCHIN 682 508. BY ADV. SRI.P.GOPAKUMARAN NAIR ADV. SRI.C.S.DIAS & ADV. SMT.R.BEENA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.7.2009 THE COURT ON ON 03/08/2009, DELIVERED THE FOLLOWING: “C.R.” K. BALAKRISHNAN NAIR, V. GIRI & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No. 331 of 2008 ------------------------------ Dated this, the 3rd day of August, 2009 JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this appeal is, the validity of G.O(P)No.437/92/Fin. dated 24.6.1992 (Ext.P7), as per which, the family pension payable in terms of G.O.(P) No.146/86/Fin. dated 11.2.1986, was ordered to be paid only with effect from the date of submission of a valid application for grant of family pension. In view of the conflicting decisions of different Division Benches on this point, the matter has been referred by a Division Bench to the Full Bench for an authoritative pronouncement. 2. The brief facts of the case are the following: The appellants herein were respondents in the writ petition. The respondent was the writ petitioner. The respondent/writ petitioner is the widow of late K.J.Lonappan, who was a constable (PC No.1792) in the Malabar Special Police, W.A. No.331/2008: - 2 - Malappuram. He died on 7.10.1962, while in service. The family pension was payable under Rule 90 of Part III, of the Kerala Service Rules (hereinafter referred to as “the K.S.R.”), only to the dependants of Government servants who retired from service after 1.4.1964. To ameliorate the conditions of dependants of employees who retired earlier, the Government issued G.O.(P) No.146/86/Fin. dated 11th February, 1986. The said order reads as follows: “At present Rule 90, Part III, KSRs., Liberalised Family Pension Scheme, applies only to those who were in service on 1st April 1964 and not opted out of it. Hence the families of Government Employees who retired or died before 1st April 1964 and who opted out of the scheme are not covered by the Scheme. The question extending the benefit of Liberalised Family Pension Scheme to the above category also has been under the consideration of Government for some time past. 2. Government after detailed examination are pleased to extent the benefit of Liberalised Family Pension Scheme to the eligible members of he families of all those Kerala Pensioners who retired/died before 1st April 1964 and to those who opted out of the scheme irrespective of the service rules applicable to them [such W.A. No.331/2008: - 3 - as T.S.R., C.S.R., M.F.R., Madras Pension Code, G.O. (Ms.) 1611/56, dated 30th August 1956 etc.] at the time of retirement/death in accordance with the provisions of Rule 90, Part III, KSRs. These orders are also applicable to the non-government employees such as Aided School Staff, Private College Staff, Staff of Local Bodies, etc., whose pensionary claims were settled under the provisions of KSRs. Part III. 3. Persons who are now to be granted the benefit of Family Pension will not be required to contribute two months emoluments. Similarly, no demand for refund of contribution already made by pensioners will be entertained by the Government. 4. The Treasury Officer of the Treasury from which the pensioner is/was drawing his pension will sanction minimum family pension on an application made in this behalf (see para 6). In death cases the Treasury from where the pensioner last drew his pension will sanction minimum family pension. The Treasury Officer will forward application along with sanction to the Accountant General for issue of Family Pension Payment Order. If any pensioner/family pensioner feels that he is eligible to get more than the minimum he should apply for revision of family pension to the Treasury Officer, producing necessary documents to establish his claim. The rate of family pension will however be the rate applicable for retirements prior to 1st July 1978. W.A. No.331/2008: - 4 - 5. In the case of death while in service prior to 1st April 1964 and in the case of those who opted out of the scheme and died while in service after 1st April 1964 the application for family pension should be forwarded to the Accountant General through the Head of the Office in which the employee was serving at the time of death. The Head of the Office after satisfying the eligibility of the applicant, will accord sanction for minimum family pension and forward the application with necessary documents to the Accountant General who will issue the Family Pension Payment Order. 6. The eligible members of the family should apply for Family Pension to the Treasury Officer/Head of the Office as the case may be. Those who are drawing/drew pension through Public Sector Banks should route their application through the Bank to the Accountant General who will issue the Family Pension Payment Order. The application for Family Pension should be in the form appended. 7. The applicant will have to satisfy the Treasury Officer that he/she is widow/widower or eligible child of the Government servant concerned, and establish identity and eligibility for the Family Pension by production of relevant documents, viz. the P.P.O. of the late Government servant wherever is possible. 8. The family pension will be paid through Pension Disbursing Authority/Authorised Public Sector W.A. No.331/2008: - 5 - Banks as desired by the family pensioner concerned. 9. Those who are residing outside the State should apply to the Treasury from where the pensioner drew/is drawing his pension. The Treasury Officer will forward the application to the Accountant General (Kerala) through the Accountant General of the respective States. 10. These orders will take effect from 1st January, 1986”. The respondent/petitioner was a beneficiary of the said order. But, she was unaware of her right to get family pension in terms of the above quoted order. So, she could not submit any application in time. Finally, she filed a petition on 5.7.2000 to the third appellant claiming family pension. Thereupon, she was served with Ext.P1 communication dated 28.7.2000 calling upon her to submit the application in Form No.6 and also to produce certain documents with sufficient number of copies thereof, as mentioned in the communication. Since there was delay to get the various documents mentioned in Ext.P1, there was some delay on her part to submit the formal application. Thereupon, W.A. No.331/2008: - 6 - the third appellant again issued Ext.P2 communication directing the respondent to submit the application at the earliest. Finally, on 5.6.2001, she submitted the requisite application in Form No.6 and other necessary and relevant records along with Ext.P3 covering letter. The same was received by the third appellant on 8.6.2001. Thereafter, she was granted family pension with effect from 8.6.2001. 3. The respondent/petitioner felt that, she is entitled to get family pension from 11.2.1986. So, she submitted a representation before the Government, a copy of which is produced as Ext.P5, claiming family pension from 11.2.1986 or at least from 5.7.2000, the date on which she submitted her first representation for family pension. The third appellant informed the respondent, by Ext.P6 communication dated 20.1.2004, that, it is not possible to grant retrospective effect to the grant of family pension. The petitioner came to understand that she was not being paid family pension with retrospective effect because of Ext.P7, G.O.(P) No.437/92/Fin. dated 24th June, 1992. The said order reads as follows: W.A. No.331/2008: - 7 - “Government are pleased to order that payment of Family Pension as per the G.O. read above will be made with effect from the date of submission of the application to the Government with all the necessary documents. Cases already settled will not be re-opened. The G.O. read above stands modified to this extent.”. After the issuance of the above order modifying G.O.(P) No.146/86/Fin. dated 11.2.1986, the Government was releasing family pension only from the date of submission of valid application. 4. Feeling aggrieved by the refusal on the part of the appellants, to grant her family pension with retrospective effect, the respondent/petitioner filed the writ petition, praying to quash the aforesaid G.O.(P) No.437/92/Fin. dated 24.6.1992 and also seeking a mandamus against the appellants to pay family pension from 1.1.1986 or at least from 5.7.2000. According to the respondent/petitioner, the denial of retrospectivity to the payment of family pension was arbitrary W.A. No.331/2008: - 8 - and illegal and therefore, Ext.P7 Government order dated 24.6.1992 was liable to be quashed. The third appellant filed a counter affidavit resisting the prayers in the writ petition. In the said counter affidavit, it is stated that, the valid application from the respondent was received only on 8.6.2001 and family pension was granted by order dated 29.07.2002, with effect from 8.6.2001. The Accountant General issued the necessary authorisation on 8.10.2002 and soon the pension was released to her with retrospective effect from 8.6.2001. 5. The learned Single Judge after hearing both sides, followed the decision of a Single Bench of this Court in Aisha Kunju v. Deputy Director of Education, [2004 (2) KLT 174] and directed the appellants to disburse the arrears of family pension from 1.1.1986. It is a brief judgment. For convenience, we are quoting the said judgment, which reads as follows: “The issue raised in the writ petition pertains to family pension. In view of the decision of this Court reported in Aisha Kunju vs. Deputy W.A. No.331/2008: - 9 - Director of Education (2004(2) KLT 174), petitioner is entitled to get family pension with effect from 01.01.1986. 2. There will be a direction to the respondents to disburse the arrears with effect from 01.01.1986 within a period of three months from the date of production of a copy of this judgment. The writ petition is disposed of as above.”. 6. The appellants, feeling aggrieved by the said judgment, have preferred this appeal. They pointed out that, though as per the decision in Aisha Kunju v. Deputy Director of Education,(supra), G.O.(P) No.437/92/Fin. dated 24.8.1992 was quashed, the Division Bench of this Court in State of Kerala v. V. Aisha Kunju [ILR 2007(1) Kerala 809], reversed that decision, to the extent, it deals with the validity of aforementioned Government order dated 24.6.1992. The learned Single Judge in Aisha Kunju v. Deputy Director of Education,(supra) has quashed the aforesaid Government order even without a prayer for the same. Since the decision relied on by the learned Single Judge to grant relief to the W.A. No.331/2008: - 10 - respondent was reversed on the main point by the Division Bench, the appellants submitted that, judgment under appeal in this case, is liable to be reversed. When the writ appeal was taken up for hearing, it was brought to the notice of the Division Bench that without noticing the decision of the Division Bench in State of Kerala v. V. Aisha Kunju (supra), another Division Bench in W.A. No.296 of 2005 (State of Kerala v. Mary Varghese) has followed the Single Bench decision in Aisha Kunju v. Deputy Director of Education,(supra). In view of the apparent conflict between the decisions of the Division Bench in W.A.No.296 of 2005 (State of Kerala v. Mary Varghese) and the decision in State of Kerala v. V.Aisha Kunju (supra), this case was referred to the Full Bench. 7. We heard the learned Special Government Pleader Sri.N.Manoj Kumar, for the appellants. We also heard the learned counsel for the respondent/writ petitioner. The learned Government Pleader submitted that, if the Government have the power to introduce family pension scheme for the W.A. No.331/2008: - 11 - employees who retired prior to 1.4.1964, the Government have also the power to modify it. In exercise of that power, Ext.P7 order dated 24.6.1992 was issued. The provision to grant family pension to the applicant, only with effect from the date of submission of the valid application, cannot be said to be an arbitrary, irrational or unjust provision. The contentions to the contrary are unsustainable. The decision in Aisha Kunju v. Deputy Director of Education,(supra), does not lay down the correct legal position. The decision in W.A.No.296/2005 was rendered without noticing the Division Bench decision in State of Kerala v. V.Aisha Kunju, (supra). The learned Government Pleader relied on the decision of the Division Bench of this Court in Pauly v. State of Kerala, 2008(1) KLT 933, wherein this Court upheld the provision in Kerala Freedom Fighters Pension Rules, 1971, which states that, pension will be granted only from the date of sanction order. The learned Government Pleader also relied on the decision of the Apex Court in State of Madhya Pradesh v. Devkinandan Maheshwari, (2003) 3 SCC 183, wherein a similar provision of the M.P.Swatantrata W.A. No.331/2008: - 12 - Sangram Sainik Samman Nidhi Niyam, 1972, was upheld. The learned Government Pleader relied on the decision of the Apex Court in Mukund Lal Bhandari v. Union of India, (AIR 1993 SC 2127), wherein a provision in the Freedom Fighters Pension Scheme, 1972, providing that pension benefits need be released only from the date of application, was upheld. The learned counsel for the respondent/writ petitioner, on the other hand, relied on the decision of the Apex Court in D.S.Nakara v. Union of India, (AIR 1983 SC 130). 8. We considered the rival submissions made at the Bar and the provisions of G.O.(P) No.146/86/Fin. dated 11.2.1986 and also Ext.P7 Government Order dated 24.6.1992. The Family Pension Scheme for the dependants of pensioners who retired/died prior to 1.4.1964 was introduced by an executive order. The said order has been modified by another executive order. The modification is only to the effect, that, the applicant will get pension only from the date of submission of a valid application. We find it difficult to accept the contentions of W.A. No.331/2008: - 13 - the writ petitioner, that, Ex.P7 Order dated 24.6.1992 issued by the Government, making the eligibility for pension from the date of submission of the application is arbitrary and unjust. There is nothing illegal or irrational about it. The provision that the applicant will get family pension from the date of submission of application for the same is just and proper. This view taken by us, is supported by the decision of the Apex Court in Mukund Lal Bhandari v. Union of India (supra). The relevant portion of the said judgment reads as follows: “5. That leaves us with the question as to whether, notwithstanding the date on which the application itself is made, the claimant should be entitled to the benefit of the pension with effect from an earlier date. In support of the contention that the benefit should be made available with retrospective effect, reliance is placed on the two cases cited earlier where the benefit is given with effect from 1st August, 1980. We have given our anxious consideration to the question and are of the view that for reasons more than one, the benefit should flow only from the date of the application and not from the any date earlier. As pointed out before in the two earlier cases the question with regard to the retrospectivity of the benefit was neither raised nor answered. We have, therefore, to decide it for the first time. W.A. No.331/2008: - 14 - xxxx xxxx xxxx Hence, we are of the view that the pension under the Scheme should be made payable only from the date on which the application is made whether the application is accompanied by the necessary proof of eligibility or not. The pension should, of course, be sanctioned only after the required proof is produced.” The Apex Court in State of M.P. v. Devkinandan Maheswari, (supra), has upheld grant of pension from the date of the order sanctioning the same under M.P.Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972, providing that freedom fighters pension will be granted only from the date of sanction of pension. The relevant portion of the said judgment, reads as follows: “2. In all the abovenoted cases, the respondents have been sanctioned pension under the M.P.Swatantra Sangram Sainik Samman Nidhi Niyam, 1972, (for short, “the M.P.Rules, 1972). The State of Madhya Pradesh has, however, come up against the judgment of the High Court providing for payment of the pension with effect from the date of application instead of from the date of order of the sanction of the pension. xxx xxx xxx W.A. No.331/2008: - 15 - 4. The main question of law is raised, common to all the appeals, is as to whether the respondents are entitled to claim pension (samman nidhi) under the M.P.Rules, 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 this Court reported in Mukund Lal Bhandari v. Union of India 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 is that the decision in the case of Mukund Lal Bhandari would not be applicable to the cases governed by the M.P.Rules, 1972. The submission is that Mukund Lal Bhandari's case was decided in relation to the Central Pension Rules whereas the M.P.Rules, 1972 have different provisions more particularly after the amendment effected by adding clause (6) in Rule 3 of the Rules. The amendment was given effect to since the commencement of the Rules. It reads as under: '(6). Freedom fighter will be entitled to claim the benefits of samman nidhi from the date of passing the order. This amendment shall come into force from the date of commencement of the said Rules.'. xxx xxx xxx 8. In our view, the decision in the case of Mukund Lal Bhandari will have no application to the W.A. No.331/2008: - 16 - cases where pension has been sanctioned and payment is made under the provisions of the M.P.Rules, 1972. This Court in the case of Mukund Lal Bhandari Bhandari 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 M.P. v. Anad Bihari, (2000) 1 MPLJ 130(DB), and later the Full Bench decision in the case of Jagannath Prasad v. State of M.P. (2001) 2 MPLJ 542 (FB), has rightly found that the decision in the case of Mukund Lal Bhandari Bhandari is distinguishable and would not be applicable to the present case. The orders passed by the High Court under challenge in these appeals squarely relying upon the decision in the case of Mukund Lal Bhandari Bhandari, in our view, are not sustainable and they are liable to be set aside.”. Following the above decision, a Division Bench of this Court in Pauly v. State of Kerala (supra), upheld the rule providing that freedom fighters pension shall be paid only from the date of sanction of pension. The relevant portion of the judgment reads as follows: W.A. No.331/2008: - 17 - “9. In the instant case, R.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 R.20 of the Pension Rules, a specific procedure is provided for making enquiries, the moment an application is filed by a freedom fighter for grant of freedom fighters pension. Under sub-cl.(x) of R.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 W.A. No.331/2008: - 18 - within a reasonable time. 10. The learned counsel appearing for the appellant would submit that R.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 power under Art.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 itself, the rule making authority has incorporated R.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 Maheswari's case, the Apex Court was dealing with more or less similar provision which provided for the grant of pension not from the date of 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 W.A. No.331/2008: - 19 - 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 R.18 of the Pension Rules.”. The above decision upheld the rule, which is also non-statutory, providing for grant of pension from the date of sanction order. Having regard to the principles laid down in the above decisions and going through the family pension scheme before us, we find no reason to quash the impugned Government Order, Ext.P7. The family pension scheme was introduced by an executive order. It was modified by another executive order and that too only prospectively. The provision for grant of a benefit from the date of applying for the same cannot be described as arbitrary. The general observations made by the Apex Court in D.S.Nakara's case (supra), cannot be pressed into service to quash Ext.P7. In the result, we overrule the decision in Aisha Kunju v. Deputy Director of Education, [2004 (2) KLT 174] W.A. No.331/2008: - 20 - and also the decision of the Division Bench in W.A. No.296 of 2005 (State of Kerala v. Mary Varghese). In view of the above legal position, the Writ Appeal is allowed, the judgment under appeal is reversed and the writ petition is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- V. Giri, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)