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2018 DIGILAW 709 (KER)

Leya v. State of Kerala

2018-09-05

ALEXANDER THOMAS

body2018
JUDGMENT : The petitioner, who is the widow of a freedom fighter, is aggrieved by the action on the part of the respondents in cancelling the Kerala Freedom Fighters’ Continuous/ Dependent Pension sanctioned to her, on the ground that she is receiving pension on account of her past service with the Revenue Department of the State. The prayers in this Writ Petition (Civil) are as follows : "(i) issue a writ in the nature of mandamus, commanding the respondents to disburse family pension to the petitioner with arrears from the date on which the same was denied to her; (ii) issue a writ in the nature of Mandamus or such other order or direction declaring that denial of family pension to the petitioner under the Kerala Freedom Fighters' Pension Rules, 1971, is illegal and arbitrary. (iii) issue a writ in the nature of Mandamus or such other order or direction declaring that the amendment to Rule 10 and 11 of the Kerala Freedom Fighters' Pension Rules, 1971 taking away the right of spouses of the deceased freedom fighter to receive family pension for the reason that they have other source of income, is arbitrary, illegal and violative of the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India; (iv) award to the petitioner the costs of these proceedings and; (v) grant such other and further relief’s as are just, proper and necessary or may be prayed for." 2. Heard Sri.N.Raghuraj, learned counsel appearing for the petitioner and Sri.Jestin Mathew, learned Government Pleader appearing for the respondents. 3. The petitioner’s husband, late P.M. Kuttappan was a freedom fighter who had participated in the freedom movement of the country and he was duly sanctioned Kerala Freedom Fighters’ Pension in accordance with the Kerala Freedom Fighters’ Pension Rules, 1971, as per Ext.P-1 proceedings dated 16.04.2008 issued by the 2nd respondent-District Collector, Alappuzha. It is not in dispute that thereafter he has been duly disbursed freedom fighters’ pension under the State Scheme as evidenced from Ext.P-1(a) series. During his life time, he had submitted necessary declaration as per Ext.P-2 to include his wife (petitioner herein)as his nominee for receiving the continuous/dependent pension under the abovesaid scheme after his death. Ext.P-2 was duly recommended by the 3rd respondent Tahsildar-Ambalappuzha as per Ext.P-3 addressed to the 2nd respondent-District Collector, which was accepted by Ext.P-4 dated 05.08.2008. During his life time, he had submitted necessary declaration as per Ext.P-2 to include his wife (petitioner herein)as his nominee for receiving the continuous/dependent pension under the abovesaid scheme after his death. Ext.P-2 was duly recommended by the 3rd respondent Tahsildar-Ambalappuzha as per Ext.P-3 addressed to the 2nd respondent-District Collector, which was accepted by Ext.P-4 dated 05.08.2008. The petitioner’s name was thus incorporated as the nominee to receive the dependent/continuous pension after the death of the freedom fighter. The petitioner’s husband had died on 08.01.2011. The petitioner was thereupon disbursed Kerala Freedom Fighters’ Continuous/Dependent Pension under the State Scheme, after the death of her husband. Later, the dependent pension sanctioned to the petitioner was stopped by the respondents with effect from 01.03.2011, without informing the petitioner about the reasons therefor. The petitioner could learn that the continuous pension was stopped in her case, on account of the amendment made to the Kerala Freedom Fighters’ Pension Rules, 1971, whereby it was provided that the widows are not eligible for the said continuous pension, if they are receiving any pension other than the Central Freedom Fighters’ Continuous/Dependent Pension and that in view of this amendment, the pension was stopped as she was a pensioner of the Revenue Department of the State. The petitioner would pray that the amendment made to the abovesaid Rules as per G.O(P)No.355/2010/GAD dated 08.11.2010 for disqualifying widows from receiving continuous pension, if they are in receipt of any pension other than the Central Freedom Fighters’ Dependent Pension, is unconstitutional and arbitrary. In that regard, it is specifically contended that in the case of the petitioner, her right to get continuous pension accrued when her husband had taken steps pursuant to Ext.P-2 in 2008 for getting her name registered as his nominee for getting the dependent pension and that therefore, the said right which is a vested right cannot be taken away on the basis of the impugned amendments etc. 4. The 1st respondent-State Government has filed a detailed counter affidavit dated 07.01.2016 in the matter. Therein essentially, it is submitted that pension has been stopped against the petitioner on account of the amendment introduced to Rules 10 and 11 of the Kerala Freedom Fighters’ Pension Rules, 1971 as per Ext.R-1(a) G.O(P)No.355/2010/GAD dated 08.11.2010. It is pointed out that Rules.10 and 11, stood amended in terms of Ext.R-1(a). Therein essentially, it is submitted that pension has been stopped against the petitioner on account of the amendment introduced to Rules 10 and 11 of the Kerala Freedom Fighters’ Pension Rules, 1971 as per Ext.R-1(a) G.O(P)No.355/2010/GAD dated 08.11.2010. It is pointed out that Rules.10 and 11, stood amended in terms of Ext.R-1(a). Further, it is stated that Ext.R1(b)report dated 13.01.2015 was submitted by the 2nd respondent-District Collector to the 1st respondent-State Government, wherein it has been stated that the petitioner is a retired employee of the Revenue Department in the State Government and that she is then receiving pension amount of Rs.13,379/- per month in that regard. It appears that there was some confusion on the part of the 4th respondent-Accountant General as to the applicability of Ext.R-1(a) amendment. It is seen referred to in Ext.R1(c) dated 05.01.2015 issued by the Sub-Treasury Officer, Alappey addressed to the 2nd respondent- District Collector that as per the communication dated 14.10.2014 issued by the Accountant General, it is stated that the petitioner name was registered as a nominee of the freedom fighter in 2008, prior to the coming into force of Ext.R-1(a) amendment dated 18.11.2010 and that therefore, the stoppage of continuous pension in her case is not proper and accordingly, steps were taken to again disburse the pension arrears to the petitioner for the period from 01.03.2011 to 30.11.2014. Later, the matter gained the attention of the 1st respondent-State Government who ordered as per Ext.R-1(d) dated 16.10.2012 that if the dependent pensioner is drawing Kerala Freedom Fighters’ Continuous/Dependent Pension along with service pension or any other pension before 08.11.2010 (date of coming into force of Ext.R1(a)), then such a person is eligible to continue to receive the said Freedom Fighters’ Continuous Pension. The respondents had taken the stand since the petitioner’s husband had died only on 08.01.2011 and that she was sanctioned continuous pension, only thereafter, she is not entitled to receive the continuous pension as her husband’s death has occurred after coming into force of Ext.R1(a)Government Order dated 08.11.2010. The Government has issued Ext.R-1(F) G.O(P)7/2014/GAD dated 08.01.2014, ordering that Ext.R-1(a)-Government Order dated 08.11.2010 shall take effect from the date of the order (08.11.2010) and that continuous pension already sanctioned to widows of freedom fighters before 08.11.2010 are exempted from the conditions stipulated in the amended Rules.10 and 11. 5. The Government has issued Ext.R-1(F) G.O(P)7/2014/GAD dated 08.01.2014, ordering that Ext.R-1(a)-Government Order dated 08.11.2010 shall take effect from the date of the order (08.11.2010) and that continuous pension already sanctioned to widows of freedom fighters before 08.11.2010 are exempted from the conditions stipulated in the amended Rules.10 and 11. 5. The main point to be decided is as to whether the amendment made by the 1st respondents-State Government as per Ext.R1(a) dated 08.11.2010, whereby, Rule.10 and Rule.11 of the freedom fighters’ pension Rules have been amended are unconstitutional as being discriminatory and arbitratory, as contended by the petitioner. It is a common ground that prior to the coming into force of the said amendment, widows were eligible for Freedom Fighters’ Pension till the remarriage or death, whereby Rules.10 and 11 as it stood prior to the amendment, reads as follows : “10. The 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 to the continuance of the pension. 11. The pension shall be payable till death if the grantee is the Freedom Fighter. If the grantee is the wife of a Freedom Fighter, the pension shall be payable till her death or remarriage. If the grantee is a minor, in the case of son the pension shall cease on his attaining the age of 18 and in the case of daughters, until they are married or otherwise become independent.” 6. It appears that the earlier Government had issued G.O. (M.S)No.256/84/GAD dated 30.07.1984, whereby it was intended to stipulate that widows and other eligible dependents can be sanctioned continuous pension only in they are not otherwise become independent of a freedom fighter and the same was later enforced as per G.O. (MS)218/89/GAD dated 04.10.1989 published in Kerala Gazette No.45 dated 14.11.1989 with effect from 30.07.1984. It appears that it is on the basis of the said provision made as per G.O.(MS)218/89/GAD dated 04.10.1989, that the stipulation was made in Rule.10 as aforestated. The aforestated stipulation in Rule.11 as aforestated appears to have been made on the basis of G.O.(M.S)No.256/84/GAD dated 30.07.1984 published in the Kerala Gazette No. 37 dated 18.09.1984. These aspects are discernible from a copy of the compilation of the Kerala Freedom Fighters’ Pension Rules, 1971, which was published by the Government. The aforestated stipulation in Rule.11 as aforestated appears to have been made on the basis of G.O.(M.S)No.256/84/GAD dated 30.07.1984 published in the Kerala Gazette No. 37 dated 18.09.1984. These aspects are discernible from a copy of the compilation of the Kerala Freedom Fighters’ Pension Rules, 1971, which was published by the Government. A copy of that compilation was made available by the learned Government Pleader, for the perusal of this Court. 7. It is later that the Government had introduced amendment to Rules.10 and 11 as per Ext.R-1(a)-G.O(P)355/2010/GAD dated 08.11.2010. It is in view of the aspects mentioned in para.1 of Ext.R-1(a), that Rules.10 and 11 of the Kerala Freedom Fighters’ Pension Rules, 1971 has been amended with effect from 08.11.2010. The said Rules.10 and 11 after the amendment pursuant to Ext.R-1(a) dated 08.11.2010 reads as follows : "10. Widows are eligible for Kerala Freedom Fighters' Continuous Pension (KFFCP) till their remarriage or death irrespective of income and they are not eligible for Kerala Freedom Fighters' Continuous pension (KFFCP) if they are receiving any other pension other than Central Freedom Fighters Continuous Pension". Unmarried daughters and minor sons of a freedom fighter who has been sanctioned a pension under rule 6 shall be eligible to the continuance of the pension provided the income limit shall not exceed Rs.12,000 (Rupees Twelve thousand only) per annum. 11. The pension shall be payable till death if the grantee is the Freedom Fighter. If the grantee is the wife of a freedom fighter, the pension shall be payable till her death or remarriage. If the grantee is a minor in the case of son, the pension shall cease on his attaining the age of 18 or he attains an income exceeding Rs.12,000 per annum and in the case of an unmarried daughter until she is married or she attains an income exceeding Rs.12,000 (Rupees Twelve thousand only) per annum." 8. Pursuant to the said amendment, it has now been stipulated that widows of freedom fighters are eligible for the said continuous pension till their remarriage or death, irrespective of income and that they are not eligible for the said continuous pension, if they are receiving any pension other than the Central Freedom Fighters’ Continuous Pension. Pursuant to the said amendment, it has now been stipulated that widows of freedom fighters are eligible for the said continuous pension till their remarriage or death, irrespective of income and that they are not eligible for the said continuous pension, if they are receiving any pension other than the Central Freedom Fighters’ Continuous Pension. Whereas in the case of unmarried daughters and minor sons of a freedom fighter, it has been stipulated therein that they shall be eligible for continuance of the said pension provided the income limit shall not exceed Rs.12,000/- per annum. It is now submitted by the learned Government Pleader that pursuant to subsequent amendment introduced, the State Government had issued G.O(P)No.329/2012/GAD dated 22.11.2012, whereby the said income limit of Rs.12,000/- p.a. in the case of dependent unmarried daughters and minor sons has been enhanced from Rs.12,000/-p.a. to Rs.24,000/- p.a. 9. The policy behind the amended Rule.10 appears to be that widows could be eligible for the continuous pension till their remarriage or death and irrespective of their income. But that they are not eligible for the continuous pension if they are receiving any pension other than the Central Freedom Fighters’ Continuous/Dependent Pension. The said amended provision has been made with the intention to ensure that not only the freedom fighters but even their widows would be honoured in the grant of the said pension framed under the State Freedom Fighters’ Pension Scheme, till their re-marriage or death, but that they will be disentitled for the grant of continuous pension under the State Scheme if they are in receipt of any pension other than the Central Freedom Fighters’ Continuous/Dependent Pension. The overall general applicability of Rule.10 cannot be said to be arbitrary or without any material basis, as even in the prior Rule, it has been stipulated that the widow is eligible only if she has not otherwise become independent. However, it is seen that in the drafting of the amended Rule.10, it is stated that the widows are eligible for the said continuous pension till their re-marriage or death “irrespective of income” but that they are not eligible for the said pension if they are in receipt of any pension other than the Central Freedom Fighters’ Continuous Pension. However, it is seen that in the drafting of the amended Rule.10, it is stated that the widows are eligible for the said continuous pension till their re-marriage or death “irrespective of income” but that they are not eligible for the said pension if they are in receipt of any pension other than the Central Freedom Fighters’ Continuous Pension. Going by the literal wordings of the amended Rule.10, if the widow is having any income irrespective of any limit still she would be eligible for the continuous pension till her re-marriage or death and the only bar is if she is in receipt of any pension other than the Central Freedom Fighters’ Continuous/Dependent Pension. Therefore, going by the literal wordings of Rule.10, salaried or business income of a widow may not attract any disqualification and a salaried widow might become disqualified to receive the continuous pension only when she retires from employment. To that extent, there appears to be some anomaly in the incorporation of the amended Rule.10. But this Court is of the view that there may not be any substantial case of hostile discrimination on that account in the State of Kerala, in respect of actual beneficiaries of continuous pension under the State Freedom Fighters’ Pension Rules. This is because a freedom fighter must have been atleast of the age of 15 or 16 at the time of the independence movement in the mid-40s and therefore, ordinarily in the scheme of things, the widows of such freedom fighters must be much above the age of 60 years at the time of introduction of Ext.R-1(a) amendment dated 08.11.2010. Even in this case, it is clear from Ext.P-2 that the petitioner was born on 15.02.1945, was aged about 66 at the time of the death of her husband in 2011. It can be presumed as far as the State of Kerala is concerned that most of the widows concerned would have retired from service at the age of 55 or 56 years, if they are employed in State Government Department or State Public Sector undertaking or at the age of 60, in case they were employed in any Nationalised Bank etc. Therefore, the actual cases of widows who will be getting salaried income at the time of issuance of Ext.R-1(a) amendment notification dated 08.11.2010 will be almost negligibly low or almost nil and that therefore, the actual occurrences of hostile discrimination that can be alleged by a widow who is otherwise a retired employee vis-a-vis a widow who is a serving employee will be almost nil or exceptional in nature. Merely because there could be a theoretical case of hostile discrimination, by itself is no ground to exercise the discretion of a constitutional court to grant relief. The reading of the Rule to decide on its constitutionality is not to be done in vacuum or in abstract, but should be evaluated and adjudged in the generality of factual cases that is likely to actually arise. In that view of the matter, this Court is not prepared to strike down the amended Rule.10, merely on the ground that salaried widows are made eligible and a salaried widow would become disqualified only if she retires from the service. 10. That apart, it is to be borne in mind that the nature and character of the freedom fighters’ pension covered by the Kerala Freedom Fighters’ Pension Rules, 1971 and the Central Swatantrata Sainik Samman Pension Rules, 1980 etc. are essentially benefits, in political recognition of the yeoman services rendered by the erstwhile freedom fighters, in their efforts to secure independence for the country. Therefore essentially it is “political pension”, given to the freedom fighters’ in recognition of their invaluable service in the freedom struggle. That apart, it is also additionally a benefit to take care of the interest of the freedom fighters in the twilight years of their life. Therefore, the substantial distinction between such a benefit given by way of political pension vis-a-vis service pension granted for the past service of an employee, has to be kept in mind. In such circumstances, the competent authorities like the Union Government, State Government who are the formulators of the schemes, rules concerned will have the exclusive prerogative to decide on the terms and conditions to regulate the grant of such “freedom fighters’ pension” and also to decide on the terms and conditions to be laid down for deciding the eligibility of dependents, if any, of such freedom fighters. As a corollary, the competent rule making authorities like the Union Government, State Governments etc. As a corollary, the competent rule making authorities like the Union Government, State Governments etc. will also have the prerogative to frame necessary conditions relating to the eligibility of such dependents and in placing restrictions like financial dependency, income limit etc. and therefore, the present impugned conditions in the amended Rule.10 incorporating conditions, whereby the dependent widows are disqualified for receiving the State Freedom Fighters’ Pension, if they receive any pension other than the Central Freedom Fighters’ Pension, cannot be said to be beyond the competence of the rule making authority or that it is substantially unreasonable or arbitrary. In the light of these aspects, this Court is not inclined to hold that the impugned prescriptions in the amended Rule.10 suffers from unconstitutionality due to hostile discrimination, unreasonableness etc. 11. Learned counsel for the petitioner has urged that a person like the petitioner gets the vested right to be granted the dependent/continuous pension as the widow of the freedom fighter, as the nominee of the freedom fighter to receive the continuous pension, pursuant to registration of her name as the nominee of the freedom fighter to receive the continuous pension as per Ext.P-4 dated 05.08.2008. It is thus contended by the petitioner that she gets the right to be considered for the grant of continuous pension with effect from 05.08.2008 and that since she has acquired such a vested right even prior to the coming into force of the impugned Ext.R-1(a) amendment notification dated 08.11.2010 and that so the amended provision will not have any effect of taking away such pre-existing vested rights of the petitioner. It appears that even the 4th respondent Accountant General has also taken such similar view as can be seen from a reading of Ext.R-1(c), more particularly para.3 thereof. On consideration of this plea, this Court is of the considered view, that going by the terms and conditions of the Kerala Freedom Fighters’ Pension Rules, 1971, the dependent widow will get the right to be considered for the grant of the Continuous/Dependent Pension, only on the death of the freedom fighter and not before. Nomination is only a process to facilitate the smoothening of the administrative hurdles in that regard. So even de hors such a nomination, her claim will be decided subject to eligibility, which cannot be denied merely due to lack of nomination. Nomination is only a process to facilitate the smoothening of the administrative hurdles in that regard. So even de hors such a nomination, her claim will be decided subject to eligibility, which cannot be denied merely due to lack of nomination. Here in the instant case Ext.R-1(a) amendment came into effect on 08.11.2010. It is not in dispute that the petitioner’s husband (freedom fighter) had died only 08.01.2011. At the time of the death of the freedom fighter, Ext.R-1(a) amendment had already come into force from 08.11.2010. Therefore, the abovesaid contention raised on behalf the petitioner is not tenable and the respondent-State authorities are right in taking the view that the petitioner is ineligible to get the Freedom Fighters’ Continuous/Dependent Pension in view of the amendment to Rule.10 of the State Rules with effect from 08.11.2010. 12. From a reading of Ext.R-1(f) G.O.P No.7/2014/GAD dated 08.01.2014, it appears that the 1st respondent has taken the view that Ext.R-1(a) amendment notification dated 08.11.2010 will not have any prospective effect and therefore the continuous pension already sanctioned to widows freedom fighters before 08.11.2010 are exempted from the conditions stipulated in the amended Rules.10 and 11. This Court is not now proposing to consider the correctness of the understanding of the 1st respondent as reflected in Ext.R-1(f) G.O.P dated 08.01.2014. Even if it is proceeded in the premise that the said understanding is correct, it is to be borne in mind that the consequence is that widows who have been granted Continuous/Dependent Pension under the State Freedom Fighters’ Pension Rules before 08.11.2010, will continue to get such pension without being in any manner detrimentally affected by the applicability of Ext.R-1(a) amendment notification dated 08.11.2010. In other words, widows of freedom fighters who died prior to 08.11.2010 will continue to get the continuous pension even if they are in receipt of other pensions, whereas similar widows of freedom fighters who happened to die on or after 08.11.2010, will be denied such benefits. The said differentia in the abovesaid classification, prima facie does not appear to have any rational nexus with the objective sought to be achieved by Ext.R-a(a) amendment. The said differentia in the abovesaid classification, prima facie does not appear to have any rational nexus with the objective sought to be achieved by Ext.R-a(a) amendment. However, this Court is not proposing to pronounce any final opinion on that issue in as much as even if it is so held that its consequence will result in hostile discrimination, such a view will not in any manner benefit the petitioner in as much as at best it can amount to depriving the benefits of continuous pension now being granted to such widows of freedom fighters who had died prior to 08.11.2010. So practically, it will be futile exercise as far as the interests of the petitioner herein is concerned and hence this Court is not proposing to enter into such controversy. 13. Sri.N.Raghuraj, learned counsel appearing for the petitioner has seriously urged before this Court that no prior opportunity or prior notice whatsoever was ever granted to the petitioner by any other respondents, more particularly the competent authority among them, before they had taken the impugned decision to stop the pension which has sanctioned to the petitioner with effect from 08.1.2011. Further, it is pointed out that though the continuous pension was initially stopped, later it was again disbursed to her as evident from Ext.R-1(c) dated 05.01.2015 and thereafter, again it was stopped unilaterally, without any notice or opportunity of hearing to the petitioner. There does not appear to be any serious dispute regarding the said factual aspects now being canvassed by the petitioner. Ordinarily, that could have led this Court to hold that the entire decision making is vitiated solely on the ground of violation of the elementary canons of the natural justice and fairness and the impugned decision could have been set aside with a remit to re-decide the matter afresh, after granting a reasonable opportunity of being heard to the petitioner. In the instant case, what is involved is the applicability of the rules in Ext.R-1(a) notification dated 08.11.2010. True that the provisions in the Kerala Freedom Fighters’ Pension Rules, 1971 are not statutory in nature, as so clearly held by the Division Bench of this Court in Pauly v. State of Kerala reported in 2008 (1) KLT 933 , para.11 and the said provisions though titled as Rules are essentially executive instructions or executive rules and not statutory rules. But it is also trite that in the absence of statutory provisions governing the field, the State can regulate the matter by exercise of its executive powers conferred under Art.161 of the Constitution of India so long as the matter is within its legislative competence, etc. Therefore, the provisions contained in the Kerala Freedom Fighters’ Pension Rules and its various amendments as in Ext.R-1(a) notification etc. are fully within the competence and prerogative of the respondent-State. Going by the impact of Ext.R-1(a) notification, it is beyond doubt that the widow of a freedom fighter will become ineligible to get continuous pension under the said Rules, if she is in receipt of any pension other than the Central Freedom Fighters’ Continuous Pension. It is also not in dispute that as reported by the 2nd respondent-District Collector to the 1st respondent-State Government, the petitioner is in receipt of service pension of Rs.13,379/- per month as she is a retired employee from the Revenue Department of the State Government. In the light of these indisputable aspects, it is only to be held that the petitioner was ineligible for the grant of continuous pension under the abovesaid Rules and therefore the impugned decision stopping pension does not require legal interdiction. Even if, the impugned decision is quashed and remitted, the result will be the same and therefore, it is not right and proper for this Court to exercise his prerogative powers under Art.226 of the Constitution of India which would end in a futile exercise. Hence, it is not right and proper for this Court in the facts and circumstances of this case, to set aside the impugned decision solely on the ground of violation of principles of natural justice and for a remit etc. 14. Sri.N.Raghuraj, learned counsel appearing for the petitioner would point out that after the death of the petitioner's husband on 8.1.2011, the petitioner was sanctioned and disbursed continuous pension under the abovesaid Rules without any objections whatsoever from any of the respondents. 14. Sri.N.Raghuraj, learned counsel appearing for the petitioner would point out that after the death of the petitioner's husband on 8.1.2011, the petitioner was sanctioned and disbursed continuous pension under the abovesaid Rules without any objections whatsoever from any of the respondents. Later, the said pension was stopped unilaterally without any notice to her and it was again disbursed to her by the respondents at their own volition by taking the stand that the persons like the petitioner will not become disqualified to get the said pension consequent to Ext.R-1(a) notification and the arrears in that regard for the period from 1.3.2011 to 30.11.2014 were disbursed to the petitioner without even a formal request on the part of the petitioner. Later the respondents have again made a “volte-face” and stopped the pension. Further that though the competent official of the Sub Treasury concerned had intimated that steps will be taken to recover the continuous pension amounts disbursed to her, so far the said amounts have not been recovered and that this Court may direct the respondents not to recover the said amount. 15. It is to be crucially borne in mind at no point of time, the petitioner was not granted a reasonable opportunity of being heard or prior notice before the impugned decision was taken to stop the pension. Initially, it was stopped without notice to the petitioner and later it was unilaterally granted to the petitioner without a request on her part and therefore the petitioner was of the bona fide belief that a serious error that may be committed by the respondents in stopping the pension and that they have corrected the said mistake by disbursing the same again and later without any further notice, the petitioner had to face stoppage of pension again. Even the initial grant of pension consequent to the death of the petitioner's husband was without any objection whatsoever on the side of the respondents. Therefore, the petitioner has been the victim of blatant violation of the natural justice on occasions more than one. 16. The Apex Court in State of Punjab v. Rafiq Masih (White Washer's case) reported in (2015) 4 SCC 334 has held that it is clearly impermissible to effect recovery of benefits from the retired employees or employees who are due to retire within one year or employees, especially in the case of low paid personnel, etc. 16. The Apex Court in State of Punjab v. Rafiq Masih (White Washer's case) reported in (2015) 4 SCC 334 has held that it is clearly impermissible to effect recovery of benefits from the retired employees or employees who are due to retire within one year or employees, especially in the case of low paid personnel, etc. It will be profitable to refer to para 18 of White Washer's case reported in (2015) 4 SCC 334 p.345-346, which reads as follows : “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law : (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” 17. Though the abovesaid decision has been rendered by the Apex Court in the context of low paid employees and retired employees, this Court is of the view that the spirit and essence of the legal principles enunciated therein could be imported to the peculiar facts and circumstances of this case. The pension sanction was on account of the invaluable service rendered by the petitioner's husband who was a freedom fighter, who was granted pension under the State rules. The pension sanction was on account of the invaluable service rendered by the petitioner's husband who was a freedom fighter, who was granted pension under the State rules. Though the petitioner is a Government employee, she is also hardly getting service pension of only around Rs.13,379/- per month, as can be seen from Ext.R-1(b) dated 13.1.2015. More than 71/2 long years have elapsed after the death of the petitioner's husband on 8.1.2011. The initial pension was disbursed to her without any objections from the respondents. Though it was later stopped, the respondents had again commenced payment of pension on their own volition as per Ext.R-1(c) and later it was stopped. In the light of these aspects, this Court is of the considered view that it will be highly arbitrary and unreasonable, if the respondents recover the meager continuous pension amounts already disbursed to her, at this distance of time. Accordingly, this Court is of the considered view that this is a fit case to exercise its discretionary jurisdiction and it is ordered that the respondents shall not recover the continuous/ dependent pension amounts already disbursed to the petitioner. 18. Before parting with this case, this Court feels that another important dimension of the case should be dealt with. As observed herein above, the drafting of the amended Rule 10 as per Ext.R-1(a) appears to be suffering from some significant anomalies. This is because, going by the terms and conditions for amended Rule 10, a widow becomes eligible for continuous pension till her remarriage or death irrespective of income and she becomes disqualified only if she is receiving any other pension other than Central freedom fighter's continuous pension. Whereas in the case of unmarried daughters and sons of freedom fighters, their eligibility is made dependent upon not crossing an upper income limit, which is now prescribed as Rs.24,000/- per annum (Rs.2,000/- per month). As pointed out earlier, it could be contended that such widows who are getting salaried income without any limit are eligible, whereas only widows who are getting any pension other than the Central Freedom Fighters' Pension Rules alone are disqualified. So also, a salaried widow irrespective of her income becomes disqualified the moment she is in receipt of any pension other than the Central continuous pension and in other words, a widow who is having high income by salary, etc. So also, a salaried widow irrespective of her income becomes disqualified the moment she is in receipt of any pension other than the Central continuous pension and in other words, a widow who is having high income by salary, etc. is eligible whereas the same person becomes automatically disqualified the moment she receives a service pension, which will be substantially much less compared to her salaried income before retirement. That apart, this Court can also take cognizance of the fact that there are many welfare schemes enunciated by the State Government and Union Government whereby welfare pension schemes like old age pension, widow pensions, agricultural labour pensions, etc. have been formulated which are all meagre amounts and merely because such benefits are styled as “pensions”, widows who are recipients of such pensions will automatically become disqualified for grant of State freedom fighter's continuous pension. Therefore, the objective that is sought to be achieved by the amendment would be better effectuated, if the eligibility of the widow is made dependent upon a rational and reasonable income limit that may be envisaged by the competent authorities of the State Government. Unnecessary controversies as the one referred to in Exts. R-1 (c) and R-1 (d), R-1 (f) even regarding the applicability or otherwise of the amended notification to pending cases could also be avoided by prescribing a rational and reasonable income as the criteria for eligibility of widows of freedom fighters. 19. Now the policy of the State Government as reflected in amended Rule 10 is that the widows are eligible for pension till their remarriage or death irrespective of their income and therefore State Government may consider whether the prescription of a sufficiently reasonable income limit is stipulated for determining the eligibility of widows as well, which need not be too low. The nature of such prescriptions is essentially in the nature of policy prerogative of the State and the competent authority of the State Government should seriously ponder and decide whether Rule 10 is to be suitably amended so as to denude if of any significant anomalies as stated herein above. 20. The upshot of the abovesaid discussion is that this Court is not inclined to hold that the stoppage of pension is illegal or that amended Rule 10 is unconstitutional etc., but would direct the respondents not to recover any Continuous Pension which had already been disbursed to the petitioner. 20. The upshot of the abovesaid discussion is that this Court is not inclined to hold that the stoppage of pension is illegal or that amended Rule 10 is unconstitutional etc., but would direct the respondents not to recover any Continuous Pension which had already been disbursed to the petitioner. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.