Union Of India vs Union Of India
2021 Latest Caselaw 9000 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                 &

             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                       WA.No.2755 OF 2015(N)

  AGAINST THE JUDGMENT IN WPC 6137/2015 DATED 26-06-2015 OF HIGH
                         COURT OF KERALA

APPELLANT/1ST RESPONDENT:

            UNION OF INDIA
            REPRESENTED BY ITS SECRETARY,
            MINISTRY OF HOME AFFAIRS,
            FREEDOM FIGHTERS DIVISION,
            NEW DELHI -110 003.

            BY ADVS.
            SRI.S.KRISHNAMOORTHY, CGC
            SHRI.P.VIJAYAKUMAR, ASG OF INDIA

RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3:

      1     DR.V.SARASWATHI
            AGED 85 YEARS,
            W/O.LATE E.GOPALAKRISHNAN MENON,
            ROHINI TEMPLE ROAD, POOTHOLE P.O,
            THRISSUR -680 004.

      2     STATE BANK OF TRAVANCORE
            REPRESENTED BY ITS CHIEF MANAGER (CPPC),
            HEAD OFFICE, THIRUVANANTHAPURAM - 695 012.

      3     THE BRANCH MANAGER
            STATE BANK OF TRAVANCORE,
            THRISSUR ROUND SOUTH BRANCH, THRISSUR-680001.

            R1 BY ADV. SRI.PUSHPARAJAN KODOTH
            R1 BY ADV. SRI.T.SETHUMADHAVAN SR.

             R1 BY ADV.SMT. RADHIKA RAJASEKHARAN
             R2 & R3 BY ADV. SRI.K.JAYESH MOHAN KUMAR
     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.2755/2015
                                         2


                                   JUDGMENT

Dated this the 18th day of March, 2021

Shaji P. Chaly, J.

This captioned appeal is filed by the first respondent in W.P(C).

No.6137 of 2015 challenging the judgment of learned Single Judge dated

26.6.2015, whereby the learned Single Judge ordered that any family benefit

pension paid prior to 6.8.2014 to the petitioner cannot be recovered, and any

pension paid after that date will be liable for recovery and consequently

Exhibits P4, P5 and P6 orders issued by the Government of India, Ministry of

Home Affairs, dated 26.12.2014, 23.1.2015 and 26.12.2014 respectively, were

quashed.

2. Brief material facts for the disposal of the appeal are as follows:

Writ petitioner's husband had been receiving Swatantrata Sainik Samman

Pension and after his death in 1996, writ petitioner had been receiving it in her

capacity as the widow of the deceased freedom fighter. During 2014, Union of

India/appellant issued guidelines restricting grant of pension only to spouses of

deceased freedom fighters, who had no other source of income. Based on that,

petitioners pension was cancelled as null and void and thereupon, State Bank of

Travancore and Branch Manager of State Bank of Travancore, Thrissur were

directed to recover an amount of Rs.18,49,181/- from the writ petitioner. The WA.2755/2015

subject matter of challenge in the writ petition was in regard to the

retrospective operation given to the guidelines issued in 2014 and the recovery

sought to be made on that basis. In the above backdrop, the reliefs sought for

were to quash Exts.P4 to P6 communications issued by the Government of

India for recovering the amounts paid prior to 18.12.2014 and a consequential

writ restraining respondent from recovering any amount received by the writ

petitioner as per Exhibit P3 order dated 21.8.1989 so as to make payment

effective from 20.3.1983.

3. A detailed counter affidavit was filed by the appellant, in the writ

petition, refuting the claims and demands raised in the writ petition and also

pointing out facts and figures in respect of Swatantrata Sainik Samman Pension

Scheme, 1980.

4. The sum and substance of the contention put forth by the appellant,

in the writ petition, was that the Pension Scheme has its own features and it

was extended to the persons, who are dependent on the freedom fighters and

who have no other source of livelihood. Anyhow, the learned Single Judge,

after taking into account the pros and cons had arrived at the conclusion that

the entitlement of the writ petitioner to family pension on the death of her

husband cannot be disputed and the time when it was made, the petitioner was

eligible for Family Pension despite the petitioner had independent income.

Apparently, when the policy came into force in the year 2000, the same was

only with respect to 'future cases' and therefore, the learned Single Judge found WA.2755/2015

that it cannot be said that the pension disbursed to the writ petitioner was

wrongful and without looking into the provisions of the Scheme.

5. We have perused the pleadings and materials on record and heard

learned counsel for the respondent/writ petitioner, smt. Radhika Rajasekaran .

6. Taking note of the age of the respondent as on the date, at 91 years,

and the issues involved in the appeal, we deem it fit to dispose of the appeal .

The sole question to be considered is, whether any manner of interference is

warranted to the judgment of the learned Single Judge. The issues raised in the

writ petition revolved around Exhibit P8 guidelines for disbursement of Central

Samman Pension, to be followed by Authorised Public Sector Banks, issued by

the Ministry of Home affairs, bearing No.45/03/2014.

7. Apparently, as per the said guidelines, the benefit of the freedom

fighters pension scheme was modified and limited to those dependent wives,

who have no source of livelihood. Anyhow, it is an admitted fact that the

petitioner's husband was a freedom fighter, who was entitled to get the benefit

of freedom fighters pension. After the death of the petitioner's husband, the

Government of India itself sanctioned Pension to the petitioner on and with

effect from 20.3.1983, as per order dated 21.8.1989. Therefore, it can be seen

that the pension was received by the writ petitioner on the basis of a sanction

order issued by the Government of India. It was thereafter that the Government

of India changed its policy on the basis of Ext.P8 on and with effect from

29.12.2014 and accordingly directed to recover the pension amount of WA.2755/2015

Rs.18,49,181/- paid to the petitioner, ie., to say the new guideline was given

retrospective effect. The question is whether such an action on the part of the

appellants is sustainable under law ?

8. The facts and figures discussed above would show that the petitioner

was not in any manner responsible for securing any pension by adopting any

illegal method. On the other hand, she was granted pension on the basis of

policy and the scheme adopted by the Government of India at that point of

time. The petitioner was aged 85 years when the recovery was ordered to be

taken against her, to recover a huge amount, of more than Rs.18 Lakhs and

now she is 91 years of age. In our considered opinion there was no justification

on the part of the appellants to do so, and the guidelines in question can only be

treated as prospective in nature only. That apart a beneficiary of a benevolent

scheme, granted after due enquiry can never be put to such sort of difficulties

and prejudice. Therefore if the issue is viewed in that background we have no

hesitation to hold that it was totally arbitrary and illegal, which was liable to be

corrected in appropriate proceedings, and therefore the interference of the

learned Single can only be said to be correct in law.

9. After evaluating the materials on record and the submissions made by

learned counsel for the writ petitioner, we are of the considered opinion that

appellant has not made out any case of jurisdictional error or illegality, in order

to interfere with the judgment of learned Single Judge in an intra court appeal

filed under Section 5 of the Kerala High Court Act, 1958. WA.2755/2015

Upshot of the above discussion is, the writ appeal fails and accordingly

it is dismissed.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge

sou.