Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 308 (MP)

Sheel Chand Jain v. State of M. P.

2010-03-15

AJIT SINGH, ARUN MISHRA, K.K.LAHOTI, R.S.GARG, RAJENDRA MENON

body2010
ORDER Arun Mishra, J. 1. The Division Bench has made the reference to the Larger Bench opining that Rule 3(6) of M.P. Swatantrata Sangram Sainik Samman Nidhi Niyam,1972 (hereinafter referred to as "the Rules") requires to be read down so as to make it a valid piece of legislation. 2. Rule 3(6) of the Rules provides as under: 3(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. The Petitioner has assailed the constitutional validity of the aforesaid rule being discriminatory, unreasonable and irrational. Petitioner claimed Freedom Fighter's Pension. While the matter was pending, the amendment was brought in the Rule 3(6) on 8th March, 1999 stipulating that Freedom Fighters would be entitled for Samman Nidhi from the date of passing of the order. The Petitioner assailed the aforesaid rule as ultra vires. 3. Before the Division Bench,it was submitted that even if a Court has passed the order of reversal of the order passed by the State Govt., the benefit can be granted from the date of amendment and not prior to that. The Division Bench opined that if the order of reversal is quashed by this Court and privilege of "Samman Nidhi" is conferred on the applicant, then the order of reversal would be deemed to have been set aside by the order of grant of Samman Nidhi and a metamorphosis takes place. Doctrine of relation back has to be given full play. It was opined in view of Full Bench deci sion of this Court in Jagannath Prasad v. The State of M.P. 2001 (1) JLJ 327 that the Court can not grant pension before the amended date even if it comes to hold that the order of refusal is absolutely bad in law. Division Bench further opined that "we think of upholding the provision by reading down as has been expressed in the order, but could not do so in view of the decision rendered in case of State of M.P. and Anr. v. Anand bihari and Anr. : 2000 (1) MPLJ 130 and Jagannath Prasad v. The State of M.P. (supra)". Division Bench further opined that "we think of upholding the provision by reading down as has been expressed in the order, but could not do so in view of the decision rendered in case of State of M.P. and Anr. v. Anand bihari and Anr. : 2000 (1) MPLJ 130 and Jagannath Prasad v. The State of M.P. (supra)". The matter has been referred to the Larger Bench as the Division Bench opined that the matter should be considered by a Larger Bench even for the purpose of reading down the provision. Yet another question was posed before the Division Bench with respect to the validity of the rule. If the State Govt. sits over the matter as long as it chooses, the Division Bench opined that the order should be passed within a reasonable period of time from the date of filing of the application, and the reasonable period as presently advised should be one year. 4. On the basis of aforesaid reference, following questions have been framed for determination: 1. Whether the amendment made in Rule 3(6) of M.P. Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972 vide notification dated 8.2.1999 is a valid piece of legislation? 2. What shall be the meaning of the words "sanction order" looking to the intention of the legislature behind enacting 1972 Rules and the amendment in the same, the term "sanction order" would also mean the date on which order is passed by State Government rejecting the application in a case where such an order is set aside by higher forum holding that Swatantrata Sangram Senani would be entitled for pension? 5. We have heard Shri R.K. Samaiya, learned Counsel appearing for the Petitioner and Shri Prashant Singh, learned Addl. Advocate General appearing for the State. 6. Shri R.K. Samaiya, learned Counsel appearing for Petitioner has submitted that Rule 3(6) of the Rules deserves to be declared as ultra vires. He has relied upon decision of Apex Court in Mukund Lal Bhandari and Ors. v. Union of India and Ors. : AIR 1993 SC 2127 to contend that it was not open to the State Govt. to frame the aforesaid rule contrary to the mandate of the Apex Court. He has relied upon decision of Apex Court in Mukund Lal Bhandari and Ors. v. Union of India and Ors. : AIR 1993 SC 2127 to contend that it was not open to the State Govt. to frame the aforesaid rule contrary to the mandate of the Apex Court. He has also submitted that State cannot be permitted to sit over the matter and then grant Samman Nidhi from the date of sanction order, it is bound to pass the order within reasonable time. He has also submitted that in case order is set aside by the Court and decision is taken to grant Samman Nidhi, the same should relate back to the date on which the order of refusal to grant Samman Nidhi was passed. 7. Shri Prashant Singh, learned Addl. AG appearing for the Respondents/State relied upon decision of Apex Court in State of M.P. and Anr. v. Devkinandan Maheshwari : (2003) 3 SCC 183 in which decision of this Court in Anand bihari and Jagannath Prasad (supra) have been approved and decision in Mukund Lal Bhandari (supra) has been distinguished. The Apex Court has opined that Samman Nidhi is payable from the date of the order under Rule 3(6) of the Rules. He has further submitted that even if the Court sets aside the order of refusal to grant Samman Nidhi, the same would be payable with effect from the date when State passes the formal order of grant of Samman Nidhi, the benefit would be available from that date. The rule cannot be said to be ultra vires. State is free to pass the order whenever the application is completed, there is no limitation prescribed under the rules for deciding such an application. Samman Nidhi cannot be claimed as of right, it is the honour conferred. It is the privilege of the State Government to confer it. The rule cannot be said to be ultra vires. It is not required to be read down as opined by the Division Bench. 8. First we come to the question whether the rule can be said to be ultra vires. By way of amendment incorporated in the year 1999, the State Government has decided to confer the benefits under the rules with effect from the date the order of sanction of Samman Nidhi is passed. 8. First we come to the question whether the rule can be said to be ultra vires. By way of amendment incorporated in the year 1999, the State Government has decided to confer the benefits under the rules with effect from the date the order of sanction of Samman Nidhi is passed. No doubt about it that Samman Nidhi is an honour conferred on a freedom fighter. In our opinion, the State Government could have enacted such a rule. It is within the ken of power of the State Govt. to provide the benefits from a particular date. The decision in Mukund Lal Bhandari's case (supra) rendered by the Apex Court does not come in the way of State to enact the aforesaid rule. In Mukund Lal Bhandari's case Freedom Fighter's Pension Scheme 1972 introduced by the Govt. of India came for consideration. There was no provision in the Central Govt. Rules providing any date with effect from which the pension would be payable as such the Apex Court laid down that the pension would be payable from the date of application not from earlier date. Decision in Mukund Lal Bhandari (supra) is based on the Central Govt. Rules and it could not be said that mandate of the aforesaid has been violated by the State Govt. by enacting Rule 3(6) providing the benefit of Samman Nidhi from the date of passing of the order. We find no force in the submission of Shri R.K. Samaiya that by retrospective operation of the rules any vested right has been taken away. It is apparent that the cases in which the orders have been passed and pension has been sanctioned from the date of the application would not be reopened by virtue of incorporation of Rule 3(6) of the Rules with retrospective effect. In Devkinandan Maheshwari (S.C.) the decisions of this Court in Devakinandan Maheshwari (supra) and A.P. Shukla came for consideration before their Lordships. In Devkinandan Maheshwari (supra) the pension was granted with effect from the date of the application relying upon the decision in Mukund Lal Bhandari's case. In Devkinandan Maheshwari (S.C.) the decisions of this Court in Devakinandan Maheshwari (supra) and A.P. Shukla came for consideration before their Lordships. In Devkinandan Maheshwari (supra) the pension was granted with effect from the date of the application relying upon the decision in Mukund Lal Bhandari's case. In A.P. Shukla's case the pension was ordered to be given with effect from the date of order of rejection, the Apex Court held that decision in State of M.P. v. Anand Bihari (supra) of Division Bench of this Court and Jagannath Prasad (supra) rendered by Full Bench of this Court were correctly decided and the decision in Mukund Lal Bhandari's case (supra) has no application to the cases where pension has been sanctioned and payment is made under the provisions of MP Rules, 1972. The decision in Mukund Lal Bhandari (supra) is distinguishable and order passed by the High Court to the extent providing the pension with effect from the date of application was set aside. 9. The question which arises for consideration in the instant matter is that in case the order of refusal of grant of Samman Nidhi is set aside by the Court, whether pension can be granted from the date of refusal to grant it by the State, and whether State can sit over so long as it chooses, on an application which is complete in all respects filed, for the purpose of grant of Samman Nidhi. These questions did not crop up for consideration in Devakinandan Maheshwari (S.C.) before the Apex Court. 10. Question arises for consideration before us is whether Rule 3(6) of the Rules requires to be read down. In case submission of learned Addl. Advocate General is accepted, in that case, even from the date of reversal by the Court of an order of refusal of grant of Samman Nidhi, it cannot be granted with effect from the date when such order of refusal was passed. In his submission, it can be granted only with effect from the date when subsequently State formally passes an order conferring the benefit of Samman Nidhi from which date the benefit would be admissible. The Samman Nidhi rules have been framed as an obligation of the nation towards the freedom fighters and it carries forward the mandate of Article 41 to public assistance in such cases of old age, sickness, disablement, etc. The Samman Nidhi rules have been framed as an obligation of the nation towards the freedom fighters and it carries forward the mandate of Article 41 to public assistance in such cases of old age, sickness, disablement, etc. It also reflects the fundamental duty enshrined in Article 51A(b) of the Constitution of India as it enables an individual to cherish and follow the noble ideals which inspired our national struggle for freedom by honouring such freedom fighters. In order to recognize the sacrifices of the freedom fighters, the rules have been framed by the State of M.P. It is settled proposition that there has to be liberal construction of such remedial statutes. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. They had participated in the freedom struggle without any expectation of getting any benefit monetary or otherwise at the relevant time, therefore, in appreciating the scheme for the benefit of freedom fighters a rational and not a technical approach is required to be adopted. It is also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country as observed by the Apex Court in Gurdial Singh v. Union of India and Ors. : (2001) 8 SCC 8 . In Principles of Statutory Interpretation by Justice G.P. Singh, Former Chief Justice of this Court, it has been observed that in construing a remedial statute the Courts ought to give to it "the widest operation which its language will permit. They have only to see that the particular case is within the mischief to be remedied and falls within the language of the enactment." The words of such a statute must be so construed as "to give the most complete remedy which the phraseology will permit," so as "to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved." In the field of labour and welfare legislation which have to be broadly and liberally construed the Court ought to be more concerned with the colour the content and the context of the statute rather than with its literal import. The social perspective must play upon the interpretative process. The social perspective must play upon the interpretative process. To say so, learned Author has referred to the decisions in Raghuraj Singh v. Hari Kishan : AIR 1944 PC 35, Krishnayya v. Seshachalam : AIR 1965 SC 639 , Central Railway Workshop, Jhansi v. Vishwanath : AIR 1970 SC 488 , Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court : (1980) 4 SCC 443 . Reference is also to D.(a minor) v. Berkshire County Council (1987) 1 All ER 20 laying down broad and liberal construction to give full effect to the legislative purpose has to be adopted. In U.P. Drugs and Pharmaceuticals Co. Ltd. v. Ramanuj : (2003) 8 SCC 334 it was held that where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological execusions. The provisions of the Juvenile Justice Act, 1986 and the Juvenile Justice (Care and Protection of Children) Act, 2000 came up for consideration before the Apex Court in Pratap Singh v. State of Jharkhand : (2005) 3 SCC 551 : AIR 2005 SC 2731 . The whole object of both the Acts is to provide for the care, protection treatment, development and rehabilitation of neglected and delinquent juveniles. The Acts being remedial in nature were given liberal construction to promote beneficient object behind them and with this end it was held that the date for determination of age of a juvenile under both the cases is the date of offence not the date when he is produced before the authority or the Court. Learned Author Justice G.P. Singh has also referred to the liberal construction recently adopted in interpreting Section 123(c) of the Railways Act, 1989 in Union of India v. Prabhakaran Vijay Kumar : (2008) 9 SCC 527 which defines "untoward incident" to cover the case of a passenger who fell down and died while trying to board the train. Learned Author Justice G.P. Singh has also referred to the liberal construction recently adopted in interpreting Section 123(c) of the Railways Act, 1989 in Union of India v. Prabhakaran Vijay Kumar : (2008) 9 SCC 527 which defines "untoward incident" to cover the case of a passenger who fell down and died while trying to board the train. The Author has reminded that in interpreting a legislation regulating the relation between the weaker and stronger contracting parties, K. Iyer, J. advised in Sant Ram v. Rajinderlal : AIR 1978 SC 1601 "Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him." The inhibition against retrospective construction has been applied with less insistence in the case of welfare legislations and remedial statutes. The learned Author has further pointed out that the Court must also be vigilant to see that benefits conferred by welfare legislation are not defeated by subtle devices. It is the duty of the Court, in every case where ingenuity is expended to avoid welfare legislations, to get behind the smoke screen and discover the true state of affairs. It can go behind the form and see the substance of the transaction as held in Workmen v. Associated Rubber Industry Ltd. : AIR 1986 SC 1 . 11. In the light of aforesaid, we have to see whether State can be permitted to decide a case illegally and deprive the benefit which ought to have been granted by the order had it been legally passed, and, at the same time, whether it can contend that the Court has no power to grant the benefit from the date of order of rejection in view of Rule 3(6) of the Rules. In Broom's Legal Maxims, 10th Edition, in Hooper v. Lane 6 H.L. Cas. 443, and Countess of Rutland's Case, 6 Rep. 52 b. it was held that if the sheriff, having in his hands two writs of ca. sa., the one valid and the other invalid, arrested on the latter alone, he could not justify the arrest under the valid writ. 443, and Countess of Rutland's Case, 6 Rep. 52 b. it was held that if the sheriff, having in his hands two writs of ca. sa., the one valid and the other invalid, arrested on the latter alone, he could not justify the arrest under the valid writ. Nor could the sheriff, whilst a person was unlawfully in his custody by virtue of an arrest on an invalid writ, arrest that person on a good writ: "to allow the sheriff to make such an arrest while the party is unlawfully confined by him, would be to permit him to profit by his own wrong and therefore cannot be tolerated Per Ld. Cranworth, in Hooper v. Lande, 6 H.L. Cas. 443, at p.551. It is apparent that a person cannot be permitted to profit by his own wrong. There is right of judicial review. To make it efficacious, it is necessary concomitant that Court has the power to substitute the order, and the order passed by the Court has to relate back. The doctrine of relation back has to be given full play to make the remedy effective to the purpose for which rules have been enacted. We are unable to accept the submission raised by Shri Prashant Singh, learned Addl. AG that even if Court holds that order of refusal is absolutely bad in law, the pension would not follow from the date of the order now corrected by the Court, but from a subsequent date on which Government passes a formal order giving the benefit of Samman Nidhi. If the rule is construed in the manner as suggested by learned Addl. AG, its operation would become arbitrary and capricious. It cannot be denied by the Government that it is required to pass a final order on the application for giving/conferring the benefit of Samman Nidhi. If an authority has the power to grant or refuse the Samman Nidhi then that would mean that it has power to pass an order after exercising the discretion as vested in the authority by law. It would be trite to say that the power to decide confers a power to give a wrong decision but however that power is controlled in the system of hierarchy by the higher authority or by the High Court, in the present case by having the power to correct the wrong. It would be trite to say that the power to decide confers a power to give a wrong decision but however that power is controlled in the system of hierarchy by the higher authority or by the High Court, in the present case by having the power to correct the wrong. If a wrong is committed instead of passing a correct and justified order then the moment wrong is set aside or quashed then the order setting aside the wrong would replace the first wrong order. In a case like this, the principles of merger would also apply. Whenever the higher authority passes an order either confirming or setting aside the order passed by the subordinate authority, then the order passed by the subordinate authority would merge in the order passed by the higher authority. In case of concurrence and confirmation, it would always be said that the higher authority has found the order of the lower authority to be correct, however, in case of reversal, it would always be said that the higher authority has corrected the wrong which was committed by the lower authority on the date of passing the wrong order. It is trite law that effort has to be made to interpret the rule as constitutionally envisaged and to ensure that its operation should not violate Article 14 of the Constitution. In case we accept the submission of State Counsel, it would give a room to arbitrariness in action and make strile the right of judicial review which is basic structure of the Constitution. Thus, in our opinion, provision has to be road in such a manner so as to mean that when order of refusal to grant Samman Nidhi is absolutely bad in law under Rule 3(6) of the Rules and Court reverse such an order and the pension is granted pursuant thereto, then it is open to the Court to specify the date from which benefit of Samman Nidhi would be available, it may relate back to the date on which the order of refusal was passed by State Govt. We are alive to the situation where the application is incomplete and for rejection of the application the applicant himself was responsible or that he could not collect the entire documents or had filed incomplete application due to which it met rejection, in such a case it would be open to the Court/State to fix a different date as considered proper with effect from the date when the formalities have been completed or the order has been subsequently passed by the State Government for grant of pension depending upon the fact situation of the case, but it cannot be taken as a rule of thumb that invariably in every case where the action of the State is per se illegal, and a complete application has been illegally rejected, the pension would be payable only from the date on which the State chooses to pass fresh order of grant of benefit even after the Court had quashed the decision. Such an interpretation would defeat the purpose of remedial legislation and the intendment of the rules with which they have been framed. It is the honour which is to be conferred, but, at the same time, it is not permissible to act arbitrarily even in the matter of grant of such an honour, and it would be to perpetuate an illegality to enable the State to avoid its obligation when it is legally due. State cannot take the shelter of the rule that it would grant the benefit only from the date when formal order is passed by the State and nor it can successfully contend that a Court is powerless to fix the date of grant of benefit with effect from the date on which illegal order of refusal to grant benefit was passed by State Govt. 12. Passing of order contemplates that order is passed in conformity with law not in illegal manner. The Court has frowned upon illegal transactions and it has inherent jurisdiction to sanction the legality. 13. Doctrine of relation back has been considered in Deo Nandan and Anr. v. Ram Saran and Ors. : (2000) 3 SCC 440 . In Delhi Jal Board v. Mahinder Singh : (2000) 7 SCC 210 the Apex Court laid down that order of exoneration passed in the departmental enquiry relates back to the date of framing of charges. 13. Doctrine of relation back has been considered in Deo Nandan and Anr. v. Ram Saran and Ors. : (2000) 3 SCC 440 . In Delhi Jal Board v. Mahinder Singh : (2000) 7 SCC 210 the Apex Court laid down that order of exoneration passed in the departmental enquiry relates back to the date of framing of charges. Question of ratification and relation back has also been considered in Punjab University v. V.N. Tripathi and Anr.: (2001) 8 SCC 179 and it has been observed that once ratification is made, it relates back to the date of original act. The ratification has the effect of relating back to the time when the action was taken without authority. Shri Samaiya has also referred to decision in Jugraj Singh and Anr. v. Jaswant Singh and Ors. : AIR 1971 SC 761 in which second power of attorney was executed, first being defective, it was held that such ratification relates back to the date of act done and agent is put in same position as if he had authority to do it at that date. The relation back follows from the maxim of law "Omnis ratihabitio retrotrahitur et mandato priori aequiparatur" that is to say, retification is thrown back to the date of the act done, and the agent is put in the same position as if he had authority to do the act at the time the act was done by him. The Court has inherent powers under the judicial review to relate back the order from the date on which a valid order ought to have been passed in conformity with the law. In Covell Mathews v. French Wools Ltd. (1978) 2 All ER 800 question of date of withdrawal came for consideration. The phrase "date of withdrawal" can only mean in relation to the withdrawal of proceedings by originating summons in the High Court, the date when an order is made that those proceedings be discontinued, subject always to any power of the court to make such an order with retrospective effect. 14. The Apex Court in Pasupuleti Venkateswarlu v. The Motor & General Traders: AIR 1975 SC 1409 had observed that relief must be judged to exist as on the date a suitor institutes the legal proceeding. The procedure is the hand-maid of justice. 14. The Apex Court in Pasupuleti Venkateswarlu v. The Motor & General Traders: AIR 1975 SC 1409 had observed that relief must be judged to exist as on the date a suitor institutes the legal proceeding. The procedure is the hand-maid of justice. The Court cannot blink at it or be blind to events which rendered the remedy futile. The equitable consideration comes into play bending the rules of procedure to promote substantial justice and it is the domain of the Court to do complete justice between the parties. Court cannot permit unreasonable and discriminatory transactions and be a silent spectator to it. In Gurdial Singh v. Union of India and Ors. (supra) the question came up for grant of pension before the Apex Court under Freedom Fighters' Pension Scheme, 1972 with respect to the date from which it has to be granted. Application for pension initially was not allowed by the authority, but as a result of writ petition filed 23 long years after the filing of the application, the claimant was found to be entitled to pension, in such circumstances, in view of such long lapse of time and the peculiar circumstances of the case, the Court ordered to grant the pension not from the date of application, but from the time of filing of writ petition to meet the ends of justice. In Union of India and Ors. v. Ganesh Chandra Dolai and Ors. : (1997) 10 SCC 289 as the applicants were given benefit of doubt as regards their being freedom fighters, it was held that they may be entitled for the pension prospectively from the date of the relevant govt. order. In Union of India and Anr. v. Kaushalaya Devi : (2007) 9 SCC 525 question came up as to the date ordering grant of pension. In the facts of the case, inspite of the provision that the pension has to be granted from the date of application, it was ordered to be granted from the date of the order. The Court observed that pension has to be granted from the date of application does not mean that it cannot be granted from the date subsequent to the application, thus, the Court has the right to mould the relief appropriate to the facts of the case. 15. The Court observed that pension has to be granted from the date of application does not mean that it cannot be granted from the date subsequent to the application, thus, the Court has the right to mould the relief appropriate to the facts of the case. 15. Coming to question of delay in deciding complete application by the State Govt., there is duty cast upon the Court to ensure that State Govt. does not unnecessarily prolong or delay the disposal of application for grant of Samman Nidhi and escape the liability to pay the amount to the incumbents having genuine claim. No doubt about it that a duty is cast upon the person also who has submitted an application to act with diligence and furnish all the documents in order to enable the State to take a final decision at an early date. There may be non-cooperation on part of the applicant which may result in unnecessary delay. In case there was any delay on part of the authority concerned in dealing with the matter that can be taken care of by the applicant obtaining appropriate direction from the High Court for expediting the enquiry, at the same time, State cannot sit idle as long as it chooses. The delay and laches have no room in adjudication process and there is bounden duty and a constitutional obligation as per mandate of Article 14 to decide the proceedings pending with urgency. To put in the words of Division Bench referring the matter "authority is under legal obligation to decide the proceedings pending for the purpose of providing benefit has to act with immediacy and not get into the hibernation and decide the fate of a claimant, who puts forth his claim as a freedom fighter, at his pleasure and leisure". We are compelled to hold that State is bound to decide such applications within a reasonable time, and we have no hesitation in accepting the suggestion made by Division Bench that in future such applications should be decided within one year from the date of filing of complete application or from the date the application is completed. 16. We are compelled to hold that State is bound to decide such applications within a reasonable time, and we have no hesitation in accepting the suggestion made by Division Bench that in future such applications should be decided within one year from the date of filing of complete application or from the date the application is completed. 16. Resultantly, we answer the reference as follows: (i) The amendment made in Rule 3(6) of M.P. Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972 vide notification dated 8.3.99 cannot be said to be ultra vires; (ii) The provision in Rule 3(6) that freedom fighters will be entitled to claim the benefits of Samman Nidhi from the date of "sanction order", would also mean the date on which order is passed by the State Govt. rejecting the application in a case where such an order is set aside by the Court holding that Swatantrata Sangram Sainani would be entitled for pension; (iii) State is bound to decide such an application in future with promptitude, to say, within one year from the date an application is filed. 17. Let record of the case be placed before the Division Bench for final hearing of the writ petition on merits. Order accordingly. Ajit Singh, J. 1. This petition, under Articles 226 and 227 of the Constitution, has been placed before us pursuant to the order of reference dated 28.2.2002 passed by the Division Bench of this Court. 2. Briefly stated the facts are these. Like the Central Government, on the occasion of 25th anniversary of independence, the State Government (Respondent No. 1) also introduced the Madhya Pradesh Swatantrata Sangram Sainik Niyam, 1972 (in short, "the Rules, 1972") to honour and acknowledge the sacrifices made by the freedom fighters. The Rules 1972 were framed by the State Government in the exercise of its executive power under Article 162 of the Constitution and notified in the Madhya Pradesh Gazette (Extra-ordinary) on 18.9.1972 by the General Administration Department. In the year 1985 the Petitioner, claiming himself a freedom fighter, applied for the benefits of Samman Nidhi on the grounds that he suffered imprisonment and remained underground during the freedom movement. The Petitioner's application was forwarded by the Collector, Tikamgarh (Respondent No. 2) to the State Government after an enquiry with a report that he was not entitled for any benefits of Samman Nidhi. The Petitioner's application was forwarded by the Collector, Tikamgarh (Respondent No. 2) to the State Government after an enquiry with a report that he was not entitled for any benefits of Samman Nidhi. The application was examined by a sub-committee of the Cabinet constituted to examine such applications and the sub-committee rejected the application in its meeting held on 14.12.1995 by holding that there was no reliable material in support of the claim made by the Petitioner that he was either detained or remained underground in connection with the freedom movement. Finally, the Deputy Collector, Tikamgarh, by his memo dated 19.7.1996, Annexure P14, informed the Petitioner that the State Government has rejected his application for sanction of Samman Nidhi on the ground that there was no reliable material in support regarding his imprisonment or remaining underground. 3. The Petitioner challenged the decision of the State Government rejecting his application in the present writ petition which was filed on 24.6.1996. The petition was later amended challenging the vires of Clause (6) of Rule 3 of the Rules 1972 which was added by an amendment by notification dated 8.3.1999. The learned Single Judge, before whom the petition came up for hearing, referred it to the Division Bench for decision on the question of vires of Clause (6) of Rule 3. When the petition came up before the Division Bench, the learned Judges felt some doubt about the correctness of the Full Bench decision of this Court in Jagannath Prasad v. State of M. P. and Ors. : 2001 (3) MPHT 81 and referred the petition for decision before a Larger Bench. This is how the matter has come up before us. 4. On perusal of the order of reference, we formulated the following two questions which arise for our decision: 1. Whether the amendment made in Rule 3 (6) of M. P. Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972 vide notification dated 8.3.1999 is a valid piece of legislation? 2. What shall be the meaning of the words "sanction order" whether looking to the intention of the legislature behind enacting 1972 Rules and the amendment in the same, the term "sanction order" would also mean the date on which order is passed by State Government rejecting the application in a case where such an order is set aside by higher forum holding that Swatantrata Sangram Senani would be entitled for pension? 5. 5. Before proceeding further, it is convenient to have a look at the relevant rules of the 1972 Rules which are reproduced below: 6. It may be stated at the outset that the questions which arise out of the order of reference have relevance for this case only when it is decided that the order of rejection of the Petitioner's application for Samman Nidhi suffers from such defects that it can be reviewed by the Court under Articles 226 and 227 of the Constitution. This basic question has so far not been determined either by the Single Bench or the Division Bench and we are also not required to decide it under the order of reference. The better course probably may have been to decide this question first for in case it is ultimately found that no ground for judicial review is made out, the petition will have to be dismissed whatever may be our answers to the questions arising out of the order of reference. And in the event grounds for interference were made out, the court could have quashed the order rejecting the Petitioner's application and remitted the case to the State Government for reconsideration giving him opportunity to raise the legal issues, now raised, if he was allowed Samman Nidhi on reconsideration. 7. The true nature of the Rules 1972 is not to provide compensation to the freedom fighters but to honour them. Had the object of the rules been to provide for compensation the monetary benefits would have become payable right from the year 1972 when the rules came into force. It is to be noted that under the rules Samman Nidhi is payable to any freedom fighter irrespective of his income or resources. In fact, in Mukund Lal Bhandari v. Union of India : AIR 1993 SC 2127 the Supreme Court in paragraph 5 pointed out that many of the real freedom fighters refused to accept similar monetary benefits despite their having no sufficient income to maintain themselves as they considered such benefits as an affront to the sense of patriotism with which they plunged in the freedom struggle. In Mukund Lal Bhandari's case the monetary benefit under the Central Scheme was allowed from the date of application as no date was mentioned in the Scheme from which the monetary benefit (pension) was payable. In Mukund Lal Bhandari's case the monetary benefit under the Central Scheme was allowed from the date of application as no date was mentioned in the Scheme from which the monetary benefit (pension) was payable. The 1972 Rules of the State Government directly came up for consideration before the Supreme Court in State of M. P. v. Devkinandan Maheshwari : (2003) 3 SCC 183 by which the Supreme Court decided a bunch of appeals under Article 136 of the Constitution filed by the State Government against the orders of this Court which, in spite of amendment incorporated in Clause (6) of Rule 3 that the Samman Nidhi would be payable from the date of order, directed for its payment from the date of application. All these appeals were allowed by a common judgment wherein it was held that the Samman Nidhi would be payable from the date of order of sanction in view of Clause (6) of Rule 3. The Supreme Court in its judgment also approvingly referred to the judgment of the Full Bench in Jagannath Prasad's case and did not find anything wrong in Clause (6) of Rule 3 which allowed payment of Samman Nidhi from the date of order of sanction and was retrospective and was held applicable to pending applications. It is for this reason that the Supreme Court departed from its earlier view taken in Mukund Lal Bhandari's case that the monetary benefit (pension) was payable from the date of application. The benefit of this judgment was not available to the Division Bench when the learned Judges passed the order of reference. 8. Question No. 1: The Rules 1972 have been made by the State Government in the exercise of its executive power under Article 162 of the Constitution. The rules made under this Article "may be relaxed, altered or revoked (even with retrospective effect) without any formality, provided there is no legislation or statutory Rules to the contrary, and no provision of the Constitution is violated by such change" (See Durga Das Basu Shorter Constitution of India Thirteenth Edition 2001, p. 711). The nature of Samman Nidhi as described by the Full Bench in Jagannath Prasad's case is "honorarium simpliciter to honour" and not akin to a pension payable for past services. A person applying for Samman Nidhi has no right until the same is sanctioned in his favour by the State Government. The nature of Samman Nidhi as described by the Full Bench in Jagannath Prasad's case is "honorarium simpliciter to honour" and not akin to a pension payable for past services. A person applying for Samman Nidhi has no right until the same is sanctioned in his favour by the State Government. As the ruling in Mukund Lal Bhandari s case led the courts to grant Samman Nidhi from the date of filing of applications for it, the State Government was burdened with the liability for payment of arrears for the period of pendency of applications. It was with the object of avoiding this financial burden that Clause (6) was added in Rule 3 with retrospective effect from 1972. In the order of reference the learned Judges have expressed the view that the Government was competent to make Clause (6) of Rule 3 with retrospective effect and it does not offend Article 14 of the Constitution and there is no discrimination or arbitrariness. 9. The learned Judges were, however, of the view that the application for Samman Nidhi cannot be allowed to remain pending for a long time and Rule 3(6) be read down to provide that the application will be decided within a reasonable time which the learned Judges thought would be one year. It is difficult to agree with this view. It would not be a reading down of Clause (6) of Rule 3 but addition of an artificial proviso to the rule providing a period of limitation for deciding the application which will amount to its amendment which the Court has no authority to make. The delay in disposal of the application can be for various reasons. It may be because of the applicant's inability to produce relevant documents or materials in support of his claim or delay in scrutiny and verification of facts which happened long back. An application to be recognized as freedom fighter is not to be allowed as a matter of course or sympathy but after proper verification of facts alleged by the applicant and the conditions required to be established for the entitlement. For example, a person who claims recognition on the ground of imprisonment has to show that he was imprisoned between 1919 and 1946 at least for a full day in connection with the freedom fighter movement on account of his political activities. For example, a person who claims recognition on the ground of imprisonment has to show that he was imprisoned between 1919 and 1946 at least for a full day in connection with the freedom fighter movement on account of his political activities. Similarly, a person claiming recognition on the ground that he was underground in connection with the freedom movement has to show that he was then proclaimed as an offender or that an award was announced for his arrest or that an order for detention was issued but was not served. The proof and verification of these conditions require time. Unless the requisite conditions are fulfilled, recognition of freedom fighter cannot be granted. For example, in a case where a person was allowed pension under the Central Scheme by the High Court on the ground that he was absconding although requisite conditions were not satisfied that order of the High Court was set aside by the Supreme Court in Union of India Vs.K. Indrasena Reddy and Anr. : AIR 2007 SC 2484 . It cannot also be lost sight of that in addition to Samman Nidhi allowed by the 1972 Rules, a freedom fighter and his family gets other benefits such as preference in employment, reservation of seats professional colleges, etc. which were noticed by the Supreme Court in Mukund Lal Bhandari's case. This consideration also necessitates careful scrutiny of the applicant's claim as freedom fighter for which no time limit can be artificially fixed by the court. 10. In my opinion, the rule is perfectly valid. 11. Question No. 2: A plain reading of Clause (6) of Rule 3 of the Rules 1972 means that the Samman Nidhi will be payable from the date of the order of sanction. The amendment so made in the rule is retrospective from the beginning of these rules. The cases which were decided before the introduction of the amendment and in which the Samman Nidhi was allowed from an earlier date are not affected because no provision is made in the rules for reopening those cases. But the amendment being retrospective will apply to all the pending cases whatever may be the stage at which they are pending. The cases which were decided before the introduction of the amendment and in which the Samman Nidhi was allowed from an earlier date are not affected because no provision is made in the rules for reopening those cases. But the amendment being retrospective will apply to all the pending cases whatever may be the stage at which they are pending. The law on the point is stated in the Principles of Statutory Interpretation by G. P. Singh 12th Edition 2010 p. 575 which reads as follows: It is the duty of Courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. Thus, if a taxing Act is retrospectively changed after reference, the High Court and Supreme Court must take notice of it. For example, if a refund provision in a taxing Act is amended by incorporating the principle of 'unjust enrichment' by providing that no refund shall be made unless the applicant proves that the incidence of tax has not been passed on by him to any other person, the amendment will be taken notice of even when the matter is pending in appeal before the Supreme Court and refund will be disallowed if the applicant fails to establish that the tax burden has not been passed on by him to any other person. Similarly, if a law providing for compensation for an acquisition is retrospectively altered the Collector in making an award and the courts in deciding a reference or appeal relating to compensation must give effect to the change in law. (The above passage was also quoted with approval by the Supreme Court from the 7th edition of this book in United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. : AIR 2000 SC 2957 , p. 2962). 12. The Full Bench in Jagannath Prasad's case had in my opinion rightly held that the retrospective addition of Clause (6) of Rule 3 will apply to pending proceedings and pending lis. As already mentioned Jagannath Prasad's case was referred with approval by the Supreme Court in State of M.P. v. Devkinandan. The High Court is duty bound to take notice of this retrospective amendment. As already mentioned Jagannath Prasad's case was referred with approval by the Supreme Court in State of M.P. v. Devkinandan. The High Court is duty bound to take notice of this retrospective amendment. If the High Court decides to quash the order of State Government and pass an order granting Samman Nidhi to the Petitioner whether under Articles 226 or 227 of the Constitution it can do so only from the date of its order as that would only be the date of order of sanction. But as pointed out later, in my view, the court can only remit back the case to the State Government for reconsideration and cannot itself pass an order granting pension. 13. The theory of relation back to which the order of reference refers has no application when there is a retrospective change in law of which the court has to take notice. Normally, a court decides in accordance with the rights of the parties which existed at the time when the lis started. But this principle has no application when there is a retrospective change in law affecting the rights. 14. The present petition is both under Articles 226 and 227 of the Constitution. The scope of Article 226 is wider than Article 227 because writs and directions can be issued to any authority including the Government but the High Court under Article 226 can only quash the order of the State Government and cannot substitute its own order in place of the Order of the State Government. It can only send back the case to the State Government. This has been very clearly brought out by the Supreme Court in a recent case Union of India v. M. S. Mohammed Rawther : AIR 2007 SC 3014 . This case related to the Swatantrata Sainik Samman Pension Scheme of the Central Government. A Division Bench of the Kerala High Court directed the Union of India to grant the pension to Petitioner. This order was set aside and the case was remitted to the Union of India to consider and pass appropriate orders in accordance with law. In holding so, the Supreme Court observed as follows: The court has only judicial power to review that executive order on Wednesbury principles, but it cannot arrogate to itself the power of the executive. This order was set aside and the case was remitted to the Union of India to consider and pass appropriate orders in accordance with law. In holding so, the Supreme Court observed as follows: The court has only judicial power to review that executive order on Wednesbury principles, but it cannot arrogate to itself the power of the executive. If the order passed by the Union of India is not justifiable on Wednesbury principles the court can only set it aside and remit the matter back to the executive for a fresh decision, but the court cannot assume the power of the Union of India. The court must exercise judicial restraint in such matters. There is broad separation of powers under the Constitution, and one organ of the State should not ordinarily encroach into the domain of another. Montesquieu's theory broadly applies in India too. 15. The High Court itself cannot pass an order of sanction of the Samman Nidhi and cannot, also direct the State Government to sanction Samman Nidhi or to sanction it from a particular date. It would be for the State Government to sanction Samman Nidhi or not to sanction it on reconsideration. If the State Government decides to sanction Samman Nidhi on reconsideration as directed by the High Court it can do so only from the date of its order in accordance with Rule 6 of the Rules 1972. 16. The question as to why the applicant should suffer because of the delay in the final disposal of his application does not arise in view of the retrospective change in law affecting pending proceedings. Such an argument cannot prevent the application of a retrospective change in law affecting pending proceedings irrespective of the stage at which they are pending. 17. As regards Article 227 of the Constitution, the power of superintendence is limited only against all courts and tribunals. The State Government, while deciding applications under the Rules 1972, is neither a court nor a tribunal. It is obviously not a court. It is also not a tribunal as it does hot satisfy the basic test of being a tribunal. In Associated Cement Companies Ltd. v. P. N. Sharma and Anr. The State Government, while deciding applications under the Rules 1972, is neither a court nor a tribunal. It is obviously not a court. It is also not a tribunal as it does hot satisfy the basic test of being a tribunal. In Associated Cement Companies Ltd. v. P. N. Sharma and Anr. : AIR 1965 SC 1595 , p. 1606 a Constitution Bench of the Supreme Court laid down the basic test of a tribunal as follows: The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under R. 6 (5) and R. 6 (6) is a part of the State's judicial power. It has been conferred on the State Government by a statutory Rule and it can be exercised in respect of disputes between the management and its Welfare Officers. The above test of a Tribunal was reaffirmed by another Constitution Bench of the Supreme Court in Shri Kihota Hollohon v. Mr. Zachilhu and Ors. : AIR 1993 SC 412 , p. 449. 18. As in adjudicating the applications under the Rules 1972, which are purely executive instructions, the State Government does not exercise any adjudicatory power under any statute or statutory rules. It cannot be termed as a Tribunal within the meaning of Article 227 of the Constitution. The High Court, therefore, cannot interfere with the order of the State Government under Article 227. 19. My answers to the above questions, stated in paragraphs 8 and 11 are as follows: (i) Rule 3 (6) of the Rules 1972 is a valid piece of legislation. (ii) The term sanction order would not mean the date of the order passed by the State Government rejecting the application when such order is set aside by the High Court holding the person concerned entitled for Samman Nidhi (pension).