[Cites 7, Cited by 0]
Orissa High Court
Rushi Dei vs State Of Odisha And Others .... Opposite ... on 22 December, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31000 of 2025
Rushi Dei .... Petitioner
Represented by Adv.-
Mr. S. Sourav, Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Represented by Adv.-
Mr. Saswat Das, Addl. Govt. Advocate (State)
CORAM:
HON' BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 22.12.2025
02. 1. The writ petition was filed by the petitioner assailing the inaction
on the part of the authorities in providing the family pension to a
freedom fighter (non-jail) as he being one of the persons coming within
the purview thereof is denied of such pension. The learned Single Judge
thought the relief claimed in the instant writ petition is of a greater
importance concerning the framing of the scheme or the rules relatable
to the family pension to be granted to the family members of the
freedom fighter (non-jail) and directed the same to be registered as the
Public Interest Litigation (PIL).
2. The petitioner claiming herself to be the wife of one late Keshab
Pradhan, who was a non-jail freedom fighter, is denied of family
pension as the same is provided to a freedom fighter (jail), who
sacrificed his life for securing the freedom from the British colony. The
representations were made to several authorities, but according to the
petitioner, they are not attended.
3. The primary question involved in the instant writ petition whether
the Court exercising power under Article 226 of the Constitution of
India can direct the executives/legislative to enact law, rule or frame
scheme or any such direction would tantamount to transgression of line
of separation envisaged into the Constitution amongst the legislative,
the executive and the judiciary. The legislature is competent enough to
legislate the law or make the rules and to run a Government, the policy
is/are taken in the better interest of the citizenry of the State or the
country by exercising their powers conferred by the Constitution of
India. The role of the judiciary is primarily to upheld the law and see its
due implementation and there is no incongruity in perceiving that any
violation or transgression of the line by the executive or the legislature
is tested on the nuances of the provisions contained in the
Constitutional law. The reason being that all the legislations are
subservient to the Constitution adopted by the people of the country
and, therefore, the Constitution is regarded as a supreme law.
4. Whether the Court should direct the executive or the legislature to
enact the rule in exercise of powers conferred under Article 226 of the
Constitution of India, the apex Court in Mallikarjuna Rao Vs. State of
Andhra Pradesh, reported in (1990) 2 SCC 707 held that it would not
be proper on the part of the High Court or the Tribunal even to issue
advisory sermons to the executive to legislate any Rule or Act in the
following:
"11. The observations of the High Court which have been made as
the basis for its judgment by the Tribunal were only of advisory
nature. The High Court was aware of its limitations under Article
226 of the Constitution of India and as such the learned Judge
deliberately used the word "advisable" while making the
observations. It is neither legal nor proper for the High Courts or
the Administrative Tribunals to issue directions or advisory
sermons to the executive in respect of the sphere which is
exclusively within the domain of the executive under the
Constitution. Imagine the executive advising the judiciary in
respect of its power of judicial review under the Constitution. We
are bound to react scowlingly to any such advice.
12. This Court relying on Narinder Chand Hem Raj v. Lt.
Governor, Administrator, Union Territory, Himachal
Pradesh [(1971) 2 SCC 747: (1972) 1 SCR 940] and State of
Himachal Pradesh v. A Parent of a Student of Medical College,
Simla [(1985) 3 SCC 169] , held in Asif Hameed v. State of Jammu
& Kashmir [1989 Supp (2) SCC 364] as under: (SCC p. 374, para
19)
"When a State action is challenged, the function of the court is to
examine the action in accordance with law and to determine
whether the legislature or the executive has acted within the
powers and functions assigned under the constitution and if not,
the court must strike down the action. While doing so the court
must remain within its self-imposed limits. The court sits in
judgment on the action of a coordinate branch of the government.
While exercising power of judicial review of administrative action,
the court is not an appellate authority. The Constitution does not
permit the court to direct or advise the executive in matters of
policy or to sermonize qua any matter which under the
Constitution lies within the sphere of legislature or executive...."
13. The Special Rules have been framed under Article 309 of the
Constitution of India. The power under Article 309 of the
Constitution of India to frame rules is the legislative power. This
power under the Constitution has to be exercised by the President
or the Governor of a State as the case may be. The High Courts or
the Administrative Tribunals cannot issue a mandate to the State
Government to legislate under Article 309 of the Constitution of
India. The courts cannot usurp the functions assigned to the
executive under the Constitution and cannot even indirectly require
the executive to exercise its rule making power in any manner. The
courts cannot assume to itself a supervisory role over the rule
making power of the executive under Article 309 of the
Constitution of India."
5. The aforesaid principle is reiterated and applied in a subsequent
decision rendered by the apex Court in V.K. Naswa Vs. Home
Secretary, U.O.I. and other reported in [2012] 2 S.C.R. 912 in the
following:
"5. ....It is a settled legal proposition that the court can neither
legislate nor issue a direction to the Legislature to enact in a
particular manner."
6. In view of the law as enunciated in the above reports, the apex
Court has deprecated the exercise of extraordinary jurisdiction
conferred upon the High Court under Article 226 of the Constitution of
India in directing or issuing the sermons or advisory to the legislative
body or the executive to frame the Policy or make the Rules or enact
the Law. It is within the domain of the Government to take a policy
decision and such policy decision would be tested in the judicial side on
the parameters of the Constitutional provisions and the test of
reasonability. The Court should refrain from issuing the mandamus
upon the authorities to frame the Rule or enact the Law or to adopt a
Policy identifying the nature thereof unless the right of the parties to
have the benefit is discernible from the Constitution of India or the
statutes applicable in this regard.
7. We, thus, do not find any justification in entertaining the instant
PIL in the manner the relief is couched and/or prayed for. The writ
petition is hereby dismissed.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
S.K. Jena/Secy.
Location: High Court of Orissa, Cuttack.
Date: 24-Dec-2025 10:27:26
