Khadeeja vs Union Of India
2022 Latest Caselaw 7648 Ker

  WP(C).3985/21                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
     TUESDAY, THE 28TH 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 28th 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

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 ex- constable 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

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-

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/-

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

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

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

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