Kamalamma D/o Ramakrishnan v. Union of India Rep. by Secretary, Ministry of Home Affairs
2018-07-24
ALEXANDER THOMAS
body2018
DigiLaw.ai
JUDGMENT : ALEXANDER THOMAS, J. 1. The petitioner, who is a divorced daughter of a freedom fighter, is aggrieved by the impugned decision at Ext.P-4 order dated 30.11.2016 issued by the 1st respondent-Union Government, whereby her claim for pension under the Central Swatantrata Sainik Samman Pension Scheme, 1980 (SSS Pension Scheme, 1980) has been rejected by that respondent. The prayers in this Writ Petition (Civil) filed on 14.12.2017 are as follows: “(i) Issue a writ of certiorari calling for the records relating to Ext.P4 and quash the same. (ii) Issue a writ of Mandamus directing the 1st respondent to grant dependent family Pension to the petitioner from 4.5.2012. (iii) Direct the 1st respondent to pay the cost. (iv) Grand such other further reliefs which this Hon'ble Court deems fit to grant under the circumstances of the case.” 2. Heard Sri. J. Omprakash, learned counsel for the petitioner, Sri. Jaishankar V. Nair, learned Central Government Counsel (CGC) appearing for Union Government of India and Sri. Jestin Mathew, learned Government Pleader appearing for R-2 State. 3. The petitioner's father was an active participant of Punnapra-Vayalar movement on account of which he had suffered imprisonment for more than 6 months in a case instituted in connection with his participation in the movement. After the death of the petitioner's father, the 1st respondent-Union Government had granted pension and arrears thereon to the petitioner's mother, being the widow of the freedom fighter as per Ext.P-1 proceedings dated 19.7.2004. Petitioner's mother, Smt. Bhavani died on 3.5.2012. It appears that the petitioner's mother was also the beneficiary of freedom fighter's pension under the Kerala Freedom Fighter's Pension Scheme. 4. The petitioner's case is that though she had initially married on 31.8.1977, she had remained separate from her husband and as per the community norms, Local Community Organization (SNDP) had intervened in the matter whereby both the spouses had agreed to live separately. Later, the marriage between the petitioner and her husband was duly dissolved as per Ext.P-8 judgment and decree dated 17.6.2013 of the Family Court, Alappuzha. It is the case of the petitioner that immediately after the short period of the marriage she was constrained to remain separate from her husband and she was fully depending on her father and later on her mother for her livelihood.
It is the case of the petitioner that immediately after the short period of the marriage she was constrained to remain separate from her husband and she was fully depending on her father and later on her mother for her livelihood. Clause (10) of the Kerala Freedom Fighters' Pension Rules, 1971 (State Scheme) stipulates that widow/minor sons/unmarried daughters, who have not otherwise become independent of a freedom fighter, who has been sanctioned a pension under Rule 6, shall be eligible for the continuance of the pension. Later, the said provisions of the State Scheme were amended as per G.O.P. No. 92/12/GAD dated 2.5.2012, whereby it was stipulated that divorced daughters who are dependents of freedom righter or his widow will also be eligible for continuous family pension after the death of the widow of the freedom fighter. That since the petitioner was depending upon her mother till her death, she was constrained to submit an application to the respondent-State Government for grant of continuous family pension under the State Scheme, which was sanctioned to her as per Ext.P-9 proceedings dated 13.3.2015 issued by the District Collector, Alappuzha. Later, the petitioner has submitted Ext.P-3 representation/petition dated 1.11.2016 before the 1st respondent-Union Government praying that she may be granted family pension under the Central Scheme on account of her mother's death, who was the recipient of that pension as she was fully dependent on her mother. Such request in Ext.P-3 has been rejected by Ext.P-4 dated 30.11.2016 issued by the 1st respondent-Union Government on the ground that divorced daughter of freedom fighter is not eligible for the grant of the benefit of Pension under the Central Scheme. In Ext.P-4 proceedings, attention is drawn to the provisions contained in clause (5) of para 5.2 of Ext.P-5 Scheme which stipulate that widowed/divorced daughter is not eligible for samman pension under the Central scheme. It is this order at Ext.P-4 that is under challenge in this Writ Petition. 5. A counter affidavit has been filed by the 1st respondent denying the claims and contentions of the petitioner. Therein a copy of the SSS Pension Scheme, 1980 has been produced as Anx.R-1(a). Clause (3) of Anx.R-1(a) deals with eligible dependents. Clause (3) reads as follows: “3.
5. A counter affidavit has been filed by the 1st respondent denying the claims and contentions of the petitioner. Therein a copy of the SSS Pension Scheme, 1980 has been produced as Anx.R-1(a). Clause (3) of Anx.R-1(a) deals with eligible dependents. Clause (3) reads as follows: “3. WHO RE ELIGIBLE DEPENDENTS For the purpose of grant of Samman pension, family includes (if the freedom fighter is not alive) mother, father, widower/widow if he/she has not since remarried, unmarried daughters. Not more than one eligible dependent can be granted pension and in the event of availability of more than one dependent the sequence of availability of more than one unmarried daughters, mother and father.” 6. Going by a plain reading of clause (3) of Anx.R-1(a), it is clear that if the freedom fighter is not alive, only the mother, father, widower/widow if he/she has not since married and unmarried daughters are eligible dependents. Therefore, on a plain reading of clause (3) of Anx.R-1(a), it is clear that divorced daughter of a freedom fighter will not come within the sweep and ambit of clause (3) thereof and therefore a divorced daughter is not an eligible dependent as understood even as per Anx.R-1(a) Scheme. Sri. J. Omprakash, learned counsel for the petitioner would place reliance on clause (12) of Anx.R-1(a), which reads as follows: “12. DURATION Except in the case of unmarried daughters, the pension is for the life-time of the recipient. In the case of unmarried daughters, pension ceases immediately after they are married or become otherwise independent. In the case of death of a pensioner his/her heirs though other-wise eligible for pension will not automatically succeed to such a pension. They shall have to apply afresh with proof of the pensioner and their applications will be considered in terms of the Pension Scheme.” On the basis of the provisions of clause (12) of Anx.R-1(a), the learned counsel for the petitioner would contend that the core and crux of the matter is as to whether the person concerned is dependent on the freedom fighter or his widow. On this basis, it is contended by the petitioner that in a case where the daughter of a freedom fighter had married but was constrained to secure divorce and is fully dependent on the freedom fighter or his widow, the case of such a person is to be treated at par with an unmarried daughter.
On this basis, it is contended by the petitioner that in a case where the daughter of a freedom fighter had married but was constrained to secure divorce and is fully dependent on the freedom fighter or his widow, the case of such a person is to be treated at par with an unmarried daughter. So a person like the petitioner is entitled as per the Scheme on the basis of a broader interpretation of clause (3) r/w clause (12) thereon, it is urged. 7. There is yet another aspect of the matter. Even going by the original terms and conditions of the State Scheme, a divorced daughter was not eligible as can be seen from clause (10) of Kerala Freedom Fighters' Pension Rules, as it stood prior to the amendment introduced in 2012, which reads as follows: “10. The widow/minor sons/unmarried daughters who have not otherwise become independent, G.O. (MS) No. 218/89/GAD dated 4.10.1991 of a Freedom Fighter who has been sanctioned a pension under rule 6 shall be eligible to the continuance of the pension.” It is clear from a reading of Ext.P-9 that it was only as per G.O. (P) No. 92/2012/GAD dated 2.5.2012 that the 2nd respondent had amended the State Scheme to explicitly include a divorced daughter, who is dependent of a freedom fighter or his widow, to be eligible for such continuing pension as per the State Scheme. Such an amendment has not so far been brought by the 1st respondent - Union Government in the Central Scheme. So long as such a category is not explicitly enumerated in clause (3) of Anx.R-1(a) it is only to be held that a person like the petitioner will not fulfil the eligibility condition of the Central Scheme. 8. On an anxious consideration of these aspects and after hearing both sides, this Court is of the considered view that the Scheme as the one contained in Anx.R-1(a) is a Scheme regulating the terms and conditions under which pension is to be granted to the freedom fighter and therefore it is for the competent authority to prescribe the terms and conditions for the grant of the pension in exercise of its policy making prerogative and as to who are the persons eligible for the Scheme and as to who are the eligible dependents. Those are essential matters in the realm of policy.
Those are essential matters in the realm of policy. Even going by a plain reading of clause (3) of Anx.R- 1(a), it is clear that a divorced daughter would not come within the zone and ambit of eligible dependent. Clause (12) of Ext.R-1(a) cannot be pressed into service for contending that a married but subsequently divorced daughter, who is dependent of the freedom fighter or his widow should also be equally construed as an eligible person as an unmarried daughter as per the terms. The conditions regarding the eligible dependents have to be understood from a reading of clause (3) of Anx.R-1(a). Clause (12) thereof only deals with the stipulation that the pension is for the life time of the recipient except in the case of unmarried daughters in whose cases the pension ceases after their marriage or otherwise economically independent. Further, it is made clear that in case of the death of the pensioner his/her heirs though otherwise eligible for pension will not automatically succeed to such a pension, etc. Therefore, clause (12) is to be understood in the light of the specific provisions therein that even an eligible dependent like an unmarried daughter will not have a lifetime right to receive pension and in their case pension ceases to have its efficacy immediately after they are married or become otherwise independent and that clause cannot be the basis for holding that even a dependent/divorced/widowed daughter is also eligible. The scope and ambit of eligibility criteria is to be considered from clause (3). If the present argument raised by the petitioner as per clause (12) is accepted then there would be other clauses for enlargening the scope of eligibility criteria on the basis of dependency. The definition of “dependent” as per the Scheme is to be construed strictly as per the provisions in clause (3). Clause 12 of Anx.R-1(a) is only a clarificatory amendment to remove all the doubts in the matter as can be seen from para 2 of Ext.P-5(1). Therefore, clause 5.2.5 of Ext.P-5 that “widowed/divorced daughter is not eligible for Samman Pension” is only a clarificatory provision which clarifies the existing provision contained in clause (3) of Anx.R-1(a) that only the enumerated categories therein would satisfy the definition of dependents. In the light of these aspects, it cannot be held that rejection of petitioner's case as per Ext.P-4 order is tainted by illegality or unreasonableness. 9.
In the light of these aspects, it cannot be held that rejection of petitioner's case as per Ext.P-4 order is tainted by illegality or unreasonableness. 9. In that view of the matter this Court is constrained to dismiss the above Writ Petition and it is accordingly so ordered.