JUDGMENT : The petitioner is a nonagenarian and is a retired aided school teacher. He had worked as a teacher in the St.Pauls High School, Nariyapuram, and had retired in the year 1984. He has approached this Court through his power of attorney holder challenging Ext.P5 order as per which, his request for disbursement for arrears of pension for the period from 2014 to 04.7.2019 was turned down by the 1st respondent. 2. It is contended by the petitioner that after his retirement in the year 1984 and till the month of January 2014, he had been drawing monthly pension from the District Treasury Office, Pathanamthitta. In the year 2014, he left India to join his son, who is employed in the United States of America. He contends that it was for the purpose of securing treatment for his ailments that he had gone to the U.S. Due to ailments that he was suffering from, he was not able to seek for payment of pension through a duly authorised agent by producing a Life Certificate as contemplated under the Note to Rule 129 of Part III of the KSR. Later, he submitted Ext.P1 representation along with Ext.P2 medical certificate, Ext.P3 Life certificate attested by the Vice Consul, and an application for condonation of delay. The said application was taken up and by Ext.P4 order, the disbursing officer has revalidated the Pension Payment Order and renewed the payment. However, it was mentioned that the arrears of payment from February 2014 to 4.7.2019 can be made only on receipt of Government sanction. The request was forwarded by the Treasury Officer and by Ext.P5 order, the request made by the petitioner was rejected by the Government. 3. The petitioner contends that the 1st respondent, merely following the letter of Rule 294 of the Treasury Code and Rule 135 of Part III of the KSR has rejected the request in a mechanical manner though they were empowered under Rule 136 to exercise their discretion in deserving circumstances. It is in the afore circumstances that the petitioner is before this Court seeking to quash Ext.P5 and for a further direction to the respondents to calculate the arrears of pension amount payable to the petitioner for the period from February 2014 to 4.7.2019 and for incidental reliefs. 4. It is in the afore circumstances that the petitioner is before this Court seeking to quash Ext.P5 and for a further direction to the respondents to calculate the arrears of pension amount payable to the petitioner for the period from February 2014 to 4.7.2019 and for incidental reliefs. 4. A counter affidavit has been filed by the 1st respondent wherein it is contended that owing to the failure of the petitioner, the pension for the period from February 2014 to July 2019 got lapsed. However, based on his application and on the production of the requisite records, the pension was revalidated with effect from 4.7.2019. It is further stated that as per Section 278 (b) of the Kerala Treasury Code Vol.1, a non-resident pensioner with the permission of the RBI can draw his pension in India through a duly authorised agent holding a valid power of attorney. However, a Life Certificate has to be produced on each occasion unless the duly authorised agency has executed an indemnity bond to refund overpayments in which case, it would be enough if the Life Certificate is produced once a year. Reliance is placed on G.O.(P) No.33/2019/Fin. dated 19.3.2019 and it is stated that a pensioner, who is a non-resident, can through an authorised agent, produce his Life Certificate issued by a Magistrate, Notary, Banker or Diplomatic representative or through the biometric system. It is stated that as per Note to of Rule 129(a) of Part III of the KSR, the procedure applicable to all pensioners who reside outside India is the same as the procedure for pensioners residing in India, but with a rider that they shall obtain previous permission of the RBI for such drawal of pension. Reference is also made to Rule 135 of Part III of the KSR and it is stated that if pension remains undrawn for more than three years, the pension would cease to be payable. 5. Sri. C.B.Sreekumar, the learned counsel appearing for the petitioner, would refer to the treatment certificate of the petitioner and it is submitted that the petitioner had gone to the US to secure treatment for his ailment. Other than extreme old age and other serious ailments, the petitioner was also suffering from Alzheimer’s disease and dementia which are brain disorders that destroy memory and thinking skills. Other than extreme old age and other serious ailments, the petitioner was also suffering from Alzheimer’s disease and dementia which are brain disorders that destroy memory and thinking skills. The learned counsel points out that it is due to the said fact that there occurred some delay in claiming the pension. For the reasons stated in Ext.P5, under no circumstances, can pension be denied is his contention. The learned counsel would also refer to Rule 136 of Part -III of the KSR and it is submitted that even if there is some delay, the same can be condoned and pension can be disbursed with the previous sanction of the Government and after obtaining orders from the audit office. 6. Miss. Anima M., the learned Government Pleader submitted that as per Rule 135 of Part-III of the KSR, if pension remains undrawn for more than 3 years, the pension ceases to be payable. The learned Government pleader would also rely on the observations made by this Court in P.K. Bharathy v. Principal Secretary to Government and Ors. [ILR 2007 (2) Ker. 161] and it is submitted that pension is not a bounty from the State and though the right is statutorily recognized, the pensioner cannot have the luxury of choosing his own time to claim the arrears of pension especially when the rules provide for an adequate mechanism to claim pension through a power of attorney holder/authorised agent in case the pensioner is not in station. 7. I have carefully considered the submissions. 8. I find from the pleadings, the submissions and the records made available that the petitioner had retired from service in the year 1984 and he was regularly drawing the pension till in the month of January 2014. It is his case that when his health condition deteriorated, he was taken to the US by his son to ensure that his aged father is with him and to provide him with treatment. Ext.P2 is the medical certificate that shows that the petitioner was aged about 91 years old and is suffering from Alzheimer's, Dementia, HTN, Chronic Obstructive Pulmonary Disease (COPD), Atrial Defibrillation, Urinary Incontinence and other chronic medical problems and the Medical Certificate specifically states that he needs full assistance. 9. Ext.P2 is the medical certificate that shows that the petitioner was aged about 91 years old and is suffering from Alzheimer's, Dementia, HTN, Chronic Obstructive Pulmonary Disease (COPD), Atrial Defibrillation, Urinary Incontinence and other chronic medical problems and the Medical Certificate specifically states that he needs full assistance. 9. At this juncture, it would be relevant to note that Alzheimer’s disease is a brain disorder that slowly destroys memory and thinking skills and a person who is afflicted with the said disease will find it difficult to even carry out the simplest of tasks. Dementia would impair the ability of an individual to think or make decisions. It is undisputed that the petitioner has crossed the age of 90. These are the circumstances that are projected by the petitioner to reclaim the pension and requested the respondents to consider his request sympathetically. Under no circumstances can it be said that there has been deliberate laches or negligence on the part of the petitioner. 10. From the impugned order, it is evident that the circumstances projected by the petitioner to exercise discretion in his favour by considering that his claim is a deserving one was not considered. The Government took the view that the rules provide for a procedure to secure pension and the petitioner having failed to act diligently, there was no reason to grant him the arrears which had lapsed under Rule 135. 11. It would be apposite to refer to the provisions of the Code as well as the statutory rules governing the subject. 278(b) of the Treasury Code Vol. I provide the procedure for drawing pension by a person who is not resident in India. The rule reads as follows: Rule 278(b): A pensioner not resident in India may, with the permission of Reserve Bank of India, draw his pension in India through a duly authorised agent, possessing a legally valid power of attorney, who must produce a life certificate as referred to in Rule 129 of Part III of the Kerala Service Rules, V Edition on each occasion, unless the duly authorized agent has executed an indemnity bond to refund overpayments, in which case he has to produce the life certificate as aforesaid at least once a year. 12. Rule 294 of the Kerala Treasury Code speaks about the circumstances under which pension shall cease to be payable. The Rule reads thus: 294. 12. Rule 294 of the Kerala Treasury Code speaks about the circumstances under which pension shall cease to be payable. The Rule reads thus: 294. “(a) If a pension payable in India remains undrawn for more than one year, the pension shall cease to be payable (Rule 135, Part III of the Kerala Service Rules, V Edition) (b) If the pensioner afterwards appears, the disbursing officer may renew his payments. He shall not, however, pay the arrears without the orders of the Accountant General, and, if the pension in arrears is to be paid or the first time or if the amount of the arrears exceeds Rs. 5,000/-, without obtaining through the Accountant General the previous sanction of the Government (Rule 136, Part III of the Kerala Service Rules, V Edition). If, however, the Accountant General considers that the suspension of payment was due to error or neglect on the part of any public officer, he may direct that the arrears be paid without the orders of the Government. (Rule 137, Part III of the Kerala Service Rules, V Edition).” 13. Rule 129 (a) of KSR Part III provides for the procedure for drawing pension through an authorised agent. The procedure for persons residing within the State and outside the State are the same but in so far as residents outside the State is concerned, previous permission from the RBI is required. Rule 129 “A pensioner who resides in the State may draw pension through duly authorised agent possessing a legally valid power of attorney who must produce a life certificate as referred to in Rules 126 and 127 on each occasion unless the duly authorised agent has executed an indemnity bond to refund over payments in which case he has to produce the life certificate as aforesaid at least once a year. Note: This procedure is applicable to all pensioners who reside outside the State also provided they obtain the previous permission of the Reserve Bank of India for such drawal of pensions.” 14. Rule 135 of Part III of the Kerala Service Rules deals with lapses and forfeiture. The said provision reads as follows: Rule 135 -Lapses and forfeiture. - If a pension remains undrawn for more than three years, the pension ceases to be payable.” 15. Rule 135 of Part III of the Kerala Service Rules deals with lapses and forfeiture. The said provision reads as follows: Rule 135 -Lapses and forfeiture. - If a pension remains undrawn for more than three years, the pension ceases to be payable.” 15. Rule 136 Part III of the Kerala Service Rules speaks about the procedure when the pensioner later appears and reclaims the pension. The rule reads thus: Rule 136 “If the pensioner afterwards appears, the Disbursing Officer may reclaim the Pension Payment Order and renew his payments. But the arrears cannot be paid (a) without the orders of the Audit Officer, and (b) if the pension in arrears is to be paid for the first time or if the amount of arrears exceeds Rs.75, 000/- without the previous sanction of the Government to be obtained through the Audit Officer.” 16. It would be apposite at this juncture to refer to Circular No.3/2000/Fin dated 17.01.2000 by the Government. The same reads as follows: “It has come to the notice of the Government that the requests for revalidation of PPOs. invoking Article 294 of K.T.C. Vol.I and Rule 136 Part III KSRs. from pensioners and family pensioners for the reason of non-drawal of pension in time or for various other reasons, are on increase. Being away from the State is the usually furnished reason for non-drawal of pension. Government have recently enhanced the period of validity of the pension when not drawn, from 1 year to 3 years. The provisions under Rule 136 Part III KSRs, is intended to be used sparingly and in exceptional cases only. Accordingly Government hereby issue following general instructions regarding the application of this provision. 2. As per Rule 126, Part III KSRs, a pensioner specially exempted from personal appearance, or suffering from bodily illness, can draw the pension through production of Life Certificate. As per Rule 129 (a) Part III KSRs, a pensioner who resides in the State may draw his pension through a duly authorised agent possessing a legally valid Power of Attorney who must produce a Life Certificate as provided in Rule 126 ibid on each occasion unless the duly authorised agent has executed an Indemnity Bond to refund the over payments in which case he has to produce the Life Certificate once in a year. As per Note thereunder this procedure is also applicable to all pensioners who reside outside the State, provided they obtain permission of Reserve Bank of India for such drawal of the pension. Such Agents who had executed the Indemnity Bond have to produce Annual Life Certificate. 3. The rules provide monthly payment of Pension and Family Pension. Non drawal for a long period is not envisaged. That is why it is provided in Rule 133 Part III KSRs. that pension will lapse and forfeit if not drawn for one year now extended to 3 years. 4. Government intend to bring to the notice of all pensioners and Pension Disbursing Officers that in cases where the pensioners are unable to appear before the Pension Disbursing agencies, they can engage agents to receive their pension as provided in the rules mentioned above. Pensioners and Family Pensioners who could not draw pension when they were out of station to join their children elsewhere or for other valid reasons should utilise the facility provided in the rules itself. 5. Government also make it clear that the provisions of revalidation of PPOs. and drawal of arrears for such non drawal periods in terms of Rule 136 Part III, KSRs read with Article 294 KTC Vol. I will be invoked in future very sparingly and only in deserving circumstances and not on vague reasons like out of station etc. It will be resorted only after the avenues offered by the Rule 129 Part III KSRs. are exhausted or could not be availed for valid reasons.” 17. The Government in the Circular has stated that the provisions under Rule 136 Part III KSR is intended to be used sparingly and in exceptional cases only. The Government has made it clear that the provisions of revalidation and drawal of arrears for such non-drawal periods in terms of Rule 136 Part III, KSR read with Article 294 KTC Vol. I will be invoked very sparingly and only in deserving circumstances and not on vague reasons like out of station etc. 18. A Division Bench of this Court in the judgment dated 15.10.2007 in W.A.No. 2224 of 2007 had occasion to consider the case of a lady who had to go abroad as she was unable to take herself and her three children. 18. A Division Bench of this Court in the judgment dated 15.10.2007 in W.A.No. 2224 of 2007 had occasion to consider the case of a lady who had to go abroad as she was unable to take herself and her three children. After referring to relevant provisions, this Court had held that Rule 136 of Part III of the KSR does not contemplate a position that arrears of pension is not payable at all, if the pensioner claims pension after three years. The only hurdle is that the disbursing officer should obtain prior permission of the Audit Officer and if the amount claimed exceeds Rs.75,000/-, the Audit Officer should obtain the prior permission of the Government. Reference was also made to the circular wherein it is stated that the provisions of Rule 136 of Part III of the KSR and Rule 294 of the Kerala Treasury Code can be sparingly used and in deserving circumstances. In paragraph No. 11 of the judgment, it was observed as follows: 11. Rule 129 of Part III of the Kerala Service Rules provides for payment of pension payable to a pensioner to the agents appointed by the pensioner by executing a valid power of attorney. Rule 135 of the Kerala Service Rules states, that, if for any reason, if the pension remains undrawn for more than three years, the pension ceases to be payable. Rule 136 of the Kerala Service Rules is more or less akin to Article 294 of the Kerala Treasury Code. The said provision would indicate that if the pensioner appears before the disbursing officer after the expiry of three years' period and reclaims pension payable, the disbursing officer may renew the pension payable to a pensioner. This rule also stipulates that the arrears of pension cannot be paid without the orders of the Audit Officer. It is further stated in the rule that if the pension in arrears is to be paid for the first time or if the amount exceeds Rs.75,000/-, the audit officer is required to obtain previous sanction of the State Government for disbursing the arrears of pension payable. The State Government, in exercise of their powers under Rule 136 of Part III of the Kerala Service Rules and Article 294 of the Kerala Treasury Code, have issued certain guidelines to the accounts officers. The said guidelines provides that the arrears normally should be paid. The State Government, in exercise of their powers under Rule 136 of Part III of the Kerala Service Rules and Article 294 of the Kerala Treasury Code, have issued certain guidelines to the accounts officers. The said guidelines provides that the arrears normally should be paid. But a discretion is vested in the State Government to consider the case of a genuine and bonafide pensioner for payment of arrears of pension, if it is to be paid for the period beyond three years. The said circular also makes it clear that the provisions of Rule 136 of Part III of the Kerala Service Rules and of Article 294 of the Kerala Treasury Code require to be sparingly used and in deserving circumstances, the arrears of pension can be paid. 19. This Court had reiterated that a discretion is vested in the State Government to consider the case of a genuine and bonafide pensioner for payment of arrears of pension if it is to be paid for the period beyond three years. It was also held that the circular issued by the Government also made it clear that the discretion can in fact be exercised sparingly and in deserving circumstances. 20. When discretion has been conferred on the Government under Rule 136 of the KSR to sanction the renewal of payment of pension which had lapsed, it must exercise the discretion after considering the facts and circumstances of the case and come to its decision. If the authority mechanically passes the order and divests itself of the power given to it, the said action cannot be said to be valid. It would also be a case of non application of mind if the concerned authority exercises its discretion in a casual manner without taking due care and caution and without considering the merits of the case carefully. By merely relying on the provisions of the Treasury Code and the relevant provisions of the KSR and by passing an order in a rigid and inflexible manner, the Government has fetered its discretion. The Government was expected to decide each and every case which comes up before it for sanction on its own merits and decide one way or the other. In other words, the Government has shut its ears on the fervent pleas of a retired public servant to give his due for the service rendered by him by forgiving his lapses. The Government was expected to decide each and every case which comes up before it for sanction on its own merits and decide one way or the other. In other words, the Government has shut its ears on the fervent pleas of a retired public servant to give his due for the service rendered by him by forgiving his lapses. 21. In D.S.Nakara and Others v Union of India [(1983) 1 SCC 350] it was held by the Hon’ble Supreme Court that retiral benefit is grounded on consideration of the obligation of the State to its citizens, after having rendered service during the useful span of life, must not be left to penury in their old age. It was further held that the antiquated notion of retiral or pensionary benefits being a bounty or a gratuitous payment depending upon the sweet will or grace of the employer, not claimable as a right, and therefore, there exists no enforceable right to such benefits, has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad V State of Bihar [ (1971) 2 SCC 330 ] and in State of Punjab v Iqbal Singh [ (1976) 2 SCC 1 ]. The Apex Court declared that in view of the well-settled position that a retiral benefit like gratuity being a property right as enshrined in Article 300A of the Constitution, the right to gratuity or pension can be deprived or forfeited or withheld only by a statutory prescription. Having considered the facts of the case in all its perspectives, I am of the view that the Ext.P5 order passed by the Government cannot be sustained under law and the same is set aside. There will be a direction to the 1st respondent to reconsider the matter in the light of the observations above and pass fresh orders in accordance with law. Before passing orders, an opportunity of being heard shall be granted to the petitioner or his authorised representative. Orders shall be passed, expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment.