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2018 DIGILAW 738 (KER)

Reeja Latha v. Union of India

2018-09-18

ALEXANDER THOMAS

body2018
JUDGMENT : ALEXANDER THOMAS, J. The petitioner challenges the validity of the Central Swatantrata Sainik Samman Pension Scheme, 1980 to the extent it confers eligibility only to dependent unmarried daughters for grant of Freedom Fighters’ Dependent Pension, after the death of the freedom fighter and his widow and the provision contained in clause.5.2.5 of Ext.P-8, wherein it is stated that the widowed/divorced daughter of a freedom fighter is not eligible for such pension. The prayers in this Writ Petition (Civil) are as follows: ''(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant the ''Swatantrata Sainik Samman Pension'' to the petitioner who is a divorcee and has no independent source of income; (ii) Issue a writ of mandamus or any other appropriate writ, order or direction, calling for the records and to declare that para 5.2.5 of Exhibit-P8 as unconstitutional and quash the same; And (iii) Grant such other and further relief’s as this Hon'ble Court deems fit and proper in the circumstances of this case.'' 2. Heard Sri. M. Dinesh, learned counsel appearing for the petitioner and Sri. Suvin R. Menon, learned Central Government Counsel (CGC) appearing for the respondents. 3. The petitioner’s father was granted Freedom Fighters’ Pension under the Central Swatantrata Sainik Samman (SSS) Pension Scheme, 1980 by the 1st respondent-Union Government. The petitioner’s mother (the wife of the freedom fighter), had pre-deceased the freedom fighter. Later, the freedom fighter (petitioner’s father) had died on 28.01.2004. The petitioner is one among the legal heirs of the deceased freedom fighter and his widow. The petitioner had married and had later divorced as per Ext.P-5 judgment and decree dated 05.10.2013 granted by the Family Court, Attingal in O.P(HMA)No.813/2013. Thereafter, the petitioner had submitted letter dated July, 2017 to the respondents claiming that she is entitled for the grant of Freedom Fighters’ Dependent Pension under the Central Scheme, being the divorced daughter of the deceased freedom fighter. The said request made by the petitioner had been rejected by the competent authority among the respondents as per Ext.P-7 letter dated 15.09.2017, wherein it has been clearly stated that under the Scheme, only the dependent widow and dependent unmarried daughter of the deceased freedom fighter are eligible for the grant of dependent pension under the Central Scheme and that widowed/divorced daughter is not eligible for the Samman Pension etc. The respondents 1 and 2 had filed a counter affidavit dated 08.02.2018. 4. The matter in issue is no longer res integra and is fully covered against the petitioner and in favour of the respondents as per the dictum made by this Court in the judgment dated 24.07.2018 rendered in W.P(C) No. 40444/2017. This Court has conclusively held in the said judgment in W.P(C) No. 40444/2017 that so long as the Central Scheme prescribes that only the dependent widow and dependent unmarried daughter of the freedom fighter, alone could be eligible for consideration for the grant of the Dependent Pension under the Central Scheme, no other categories of legal representatives of the deceased freedom fighter could avail the benefit. Para.5 of the judgment as referred to in clause.3 of the Central scheme dealing with the eligible dependents and clause.3 reads as follows: “3. WHO ARE 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 eligibility will be widow/widower, unmarried daughters, mother and father.” Clause.12 of the Scheme gives the duration of the benefit, which reads as follows: “12.DURATION Except in the case of unmarried daughters, the pension is for the lifetime 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 otherwise 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.” 5. There are no provisions in the Central Scheme, by which dependent widowed daughters/dependent divorced daughters of a deceased freedom fighter are made eligible for consideration for the grant of the Dependent Pension under the Central Scheme. Whereas, provisions were incorporated by way of amendment in the Kerala Freedom Fighters’ Pension Rules, 1971, by which even dependent divorced daughters/dependent widowed daughters of deceased freedom fighters are also made available subject to the other norms in that regard, apart from the original eligible categories of widow/unmarried daughter of the freedom fighter. Whereas, provisions were incorporated by way of amendment in the Kerala Freedom Fighters’ Pension Rules, 1971, by which even dependent divorced daughters/dependent widowed daughters of deceased freedom fighters are also made available subject to the other norms in that regard, apart from the original eligible categories of widow/unmarried daughter of the freedom fighter. After adverting to the various aspects of the matter, this Court has clearly held that there is no question of any hostile discrimination in as much as the eligibility is confined only to widows and unmarried daughters, whereas denying such eligibility to widowed daughters and divorced daughters. Therefore, this Court is not in a position to accede to the above said prayers of the petitioner and there is no illegality or unreasonableness in the rejection order passed by the respondents as per the impugned Ext.P-7 proceedings dated 15.07.2017. However, Sri. M. Dinesh, learned counsel appearing for the petitioner has placed reliance on Ext.P-8, which is styled as “Guidelines of disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks”. Clause. V thereof deals with the salient features of the guidelines. Clause.5.2 under the said salient features reads as follows: “5.2 Transfer of Pension to Spouse/Daughters:- After the death of the pensioner (whether freedom fighter himself or his spouse) the transfer of pension to the spouse/daughter will only be considered if she applies for transfer of pension within 6 months of the death. Application received after 6 months shall not be considered by the Bank but referred to the Ministry. The Ministry shall then take a view whether to allow dependent pension or not or whether any arrears are to be paid.” The petitioner also takes the attention of this Court to clause.6 and clause.6.22 thereof, which reads as follows: “6. Twin conditions for dependent pension to spouse of daughters :-Two important conditions for the dependent pension to spouse or daughters must be met. Firstly, they should not have independent sources of income and secondly they should not have remarried.” “6.2.2 However, in case the husband of a deceased woman freedom fighter re-marries then the family pension continues in such a case. Firstly, they should not have independent sources of income and secondly they should not have remarried.” “6.2.2 However, in case the husband of a deceased woman freedom fighter re-marries then the family pension continues in such a case. In nutshell, the re-marriage clause is not applicable in case of a husband, who is getting dependent pension on account of the deceased wife who was a freedom fighter.” Clause.5.2.5 thereof reads as follows: “5.2.5 Widowed/divorced daughter is not eligible for samman pension.” 6. On the provisions contained in clause.5.2 of Ext.P-8, it is contended by the learned counsel appearing for the petitioner that the expression used in clause.5.2 is “spouse/daughter” and not “unmarried daughter”. Further and so it is argued by the petitioner’s counsel that the second sentence of the above quoted clause.6 reads as: “Firstly, they should not have independent sources of income and secondly they should not have remarried.” and that what is prohibited is “re-marriage” and therefore the basic provision in the scheme that the daughter should be remarried become obsolete and that since what is prohibited in clause.6 of Ext.P-8 is the remarriage of the daughter, obviously her first marriage is permitted and therefore a divorced daughter like the petitioner is eligible. Further, it is pointed out by the petitioner that clause.6.2.2 states that in case the husband of a deceased freedom fighter remarries, then the family pension continues in such a case. On the basis of clause.6.2.2 of Ext.P-8, it is argued by the petitioner that if the husband of a deceased woman freedom fighter remarries, he continues to be eligible to get Dependent Pension whereas, other categories like daughter etc. is made ineligible, if she marries and that this would amount to hostile discrimination. Most of the above said arguments raised by the petitioner are rather mechanical and totally divorced from the context of the SSS Pension Scheme, 1980. The terminology “spouse/daughter” employed in clause.5.2 of Ext. P- 8 is to be understood from the basic provisions made in the scheme. It has to be borne in mind that Ext.P-8 is only some instructions given by the officials of the Central Government of the Union Government to the authorized Public Sector Banks, so as to disburse the benefits. Therefore, the “the expression spouse/daughter” employed in clause.5.2 should be read as “widow/unmarried daughter”. It has to be borne in mind that Ext.P-8 is only some instructions given by the officials of the Central Government of the Union Government to the authorized Public Sector Banks, so as to disburse the benefits. Therefore, the “the expression spouse/daughter” employed in clause.5.2 should be read as “widow/unmarried daughter”. When the basic scheme stipulates that the persons eligible for Dependent Pension after the death of the freedom fighter are only widows and unmarried daughters, instructions given by the Union Government addressed to the public sector banks cannot be used an aid to enlargen the scope of the original scheme. So also, the expression “remarried” employed in the second sentence of clause.6 of Ext.P-8 can only mean that widows should not have remarried, whereas a daughter, who is eligible only if she is unmarried, should not have subsequently married after the grant of the benefit. The above said isolated words appearing in Ext.P-8 which is only an instruction issued for the public sector banks, cannot be the basis for enlargening or abridging the basic provisions contained in the scheme. This Court is also not in a position to understand the impact of clause.6.2 which says that even in case of the husband of a deceased freedom fighter remarries, then the Family Pension continues in such a case etc. This obviously appears to be a misconstrued understanding of the provisions of the scheme by the officials of the Union Government, who had issued Ext.P-8 instructions to the public sector banks and cannot be the basis for taking up an argument of hostile discrimination on the basis of Art.14. Moreover, the Full Bench of this Court in Union of India v. Peter Devassia, reported in 2003(1) KLT 467 (FB), para.10 thereof has clearly dealt with a similar argument and held that the salient features of the scheme cannot be the basis for modifying or varying the meaning of the clauses in the basic scheme issued by the Union Government. Para.10 of the judgment of the Full Bench of this Court in Union of India v. Peter Devassia reported in 2003(1)KLT 467(FB), reads as follows: “10. Counsel for the appellant raised another contention also. According to him, the scope of the Scheme has to be understood in the light of Ext.R1(a) captioned 'Salient Features of S.S.S. Pension Scheme, 1980' which was subsequently issued by the Central Government. Counsel for the appellant raised another contention also. According to him, the scope of the Scheme has to be understood in the light of Ext.R1(a) captioned 'Salient Features of S.S.S. Pension Scheme, 1980' which was subsequently issued by the Central Government. Paragraph 2.2 of Ext.R1(a) is relied on to contend that the imprisonment referred to in Cl.4(a) is correlated to the sentence awarded after trial. We are not able to agree with the above contention for two reasons. Firstly, Ext.R1(a) which only highlights the salient features of the Scheme cannot be used as an aid to understand or interpret the provisions of the Scheme. At any rate, Ext.R1(a) cannot modify the scheme or vary the meaning of the provisions of that scheme, which is a public document issued and published by the Central Government. Secondly, there is nothing in Ext.R1(a) which runs counter to the beneficial provisions contained in the scheme.” 7. Therefore, the above said arguments made by the learned counsel appearing for the petitioner on the basis of Ext.P-8 instructions given to the authorized Public Sector Banks as well as in part.(V) thereof, which deals with the salient features of the guidelines etc., cannot be the basis for abridging or enlargening the scope of the basic scheme formulated by the Central Government. The above said arguments of the petitioner should also be understood in the specific clarification given in clause.5.2.5 of Ext.P-8 scheme, wherein it is clearly envisaged that “Widowed/divorced daughter is not eligible for the samman pension”. The respondent-Union Government may issue necessary instruction to ensure that such unnecessary and anomalous usage of words in Ext.P-8 is remedied, without further delay, in order to avoid unnecessary confusion, which could be even otherwise caused to the officials of the public sector banks to whom it is addressed. So, the competent authority of the respondents are requested to immediately look into the anomalous expressions of words and usages as in clause.5.2, clause.6, clause.6.2.2 etc. of part. V of Ext.P-8. Hence, in view of the various aspects already dealt with in the judgment dated 24.07.2018 rendered by this Court in W.P(C)No.40444/2017 as well as in view of the various aspects dealt with hereinabove, this Court is of the considered view that the contentions raised by the petitioner are bereft of any merit and are untenable. of part. V of Ext.P-8. Hence, in view of the various aspects already dealt with in the judgment dated 24.07.2018 rendered by this Court in W.P(C)No.40444/2017 as well as in view of the various aspects dealt with hereinabove, this Court is of the considered view that the contentions raised by the petitioner are bereft of any merit and are untenable. The Registry will ensure that a copy of the judgment dated 24.07.2018 in W.P(C)No.40444/2017 is placed as an appendix to this judgment. Accordingly, it is ordered that the above Writ Petition (Civil) will stand dismissed.