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Judgment
D.V. Shylendra Kumar, J.—This contempt petition has come up for further orders before the court today in the background of the following orders we had passed on 13.10.2011 and 17.10.2011 respectively. The orders are:- DVSKJ & HSKJ: 13.10.2011
CCC 3053/11
We are not fully satisfied with the memo of compliance dated 10.10.2011 placed before the court and signed by Sri.Manvendra Reddy, learned Government Advocate and the accompanying Government order sanctioning pension to the complainant from the date of the order i.e. 28.9.2011.
Though the complainant had filed application for pension as a dependent member of a freedom fighter and even produced all necessary documents as had been called for way back in the year 2003 and ultimately it is only after the filing of the writ petition in the year 2009 and this Court issued directions to consider the case of the petitioners as per the order dated 9.4.2010 and even thereafter, there being inaction on the part of the respondents-accused persons, it is only when the complainant presented this contempt petition and after issue of notice on the contempt petition that some action has been produced in terms of the order dated 21.9.2011.
Mr.Manvendra Reddy, learned Government Advocate, submits that there is a Government Circular which enjoins the concerned officials to fix pension from the date of the order and not from an earlier point of time.
We are not very sure this can be the legal position particularly in the wake of the decisions of the Hon''ble Supreme Court governing the very issue and are therefore weary of accepting the submission of the learned Government Advocate to drop the contempt proceedings.
The learned Government advocate requests the matter be called day-after-tomorrow not only to produce the Government Circular but also to look up the law in this regard.
List on 15.10.2011 as requested.
DVSKJ & HSKJ: 17.10.2011
CCC 3053/11
This contempt petition by the complainant is due to the non-compliance of the order dated 9.4.2010 passed by this Court in W.P.NO.83737/2009.
Contempt petition had come up for orders on 21.9.2011 after the learned Government Advocate had taken notice for the respondent-accused earlier and while at the request of Sri.Manvendra Reddy, learned Government Advocate, two more weeks'' time was granted for filing objections, it was observed that in the interest of respondents if they have in the meanwhile complied with the court order, to report compliance etc.
Matter had come up for further orders on 13.10.2011 and we passed the following order:-
We are not fully satisfied with the memo of compliance dated 10.10.2011 placed before the court and signed by Sri.Manvendra Reddy, learned Government Advocate and the accompanying Government order sanctioning pension to the complainant from the date of the order i.e. 28.9.2011.
Though the complainant had filed application for pension as a dependent member of a freedom fighter and even produced all necessary documents as had been called for, way back in the year 2003 and ultimately it is only after the filing of the writ petition in the year 2009 and this Court issued directions to consider the case of the petitioners as per the order dated 9.4.2010 and even thereafter, there being inaction on the part of the respondents-accused persons, it is only when the complainant presented this contempt petition and after issue of notice on the contempt petition that some action has been produced in terms of the order dated 21.9.2011.
Mr.Manvendra Reddy, learned Government Advocate, submits that there is a Government Circular which enjoins the concerned officials to fix pension from the date of the order and not from an earlier point of time.
We are not very sure this can be the legal position particularly in the wake of the decisions of the Hon''ble Supreme Court governing the very issue and are therefore weary of accepting the submission of the learned Government Advocate to drop the contempt proceedings.
The learned Government advocate requests the matter be called day-after-tomorrow not only to produce the Government Circular but also to look up the law in this regard.
List on 15.10.2011 as requested.
Case was adjourned only to enable the learned Government Advocate to look up the law and to make submission as to why payment of pension to the complainant was being restricted only from the date of the order i.e. from 28.9.2011 whereas, the very Government Order indicated that she had filed an application for grant of family pension way-back on 20.3.1986 as is indicated at Sl. No. 7 in the references quoted in the Government Order granting of pension with effect from 28.9.2011.
The learned Government Advocate has brought to our notice two judgments of the Supreme Court, one reported in Union of India (UOI) and Another Vs. Kaushalaya Devi, in the case of Union of India and others - vs - Kaushalaya Devi and the subsequent judgment of the Supreme Court reported in Union of India (UOI) and Others Vs. Kashiswar Jana, in the case of Union of India and others - vs - Kashiswar Jana.
The learned Government Advocate by drawing attention to Paras 5, 6 and 7 of the judgment of the Supreme Court in Kaulshalaya''s case reading as under:-
In the present case, we have perused the record and found that it is stated therein that the claim was allowed on the basis of secondary nature of evidence. In other words, the claim was not allowed on the basis of jail certificate produced by the claimant but on the basis of oral statement of some other detenue. Hence, we are of the opinion that the pension should be granted from the date of the order and not from the date of the application.
Learned counsel for respondent has relied on the judgment of this Court in Mukund Lal Bhandari and others Vs. Union of India and others, .
In our opinion that decision is distinguishable as it has been stated therein that the pension cannot be granted from any date prior to the application. In our opinion this does not mean that it cannot be granted from a date subsequent to the application.
submits that in the wake of the observations of the Supreme Court in Paras 6 and 7, the position of law as noticed in the judgment of the Supreme court in Mukund Lal Bhandari and others Vs. Union of India and others, is no more good law and therefore, submits that it cannot be said that the complainant was entitled for pension from the date earlier than the order.
A perusal of this judgment and the subsequent judgment in the case of Union of India (UOI) and Others Vs. Kashiswar Jana, only indicates that in these two judgments, on facts the earlier judgment of the Supreme Court in Mukund Lal Bhandari had been distinguished and that judgment has never been either over-ruled or held to be no more good law.
What all has been observed is that, the entitlement for family pension cannot go beyond the date of application, in the sense, at the best it can be from the date of application and thereafter, and not from an earlier date.
At the same time, it does not mean nor say that it cannot be from the date of application.
Be that as it may, even in terms of the judgment of the Supreme Court in Kashishwar Jana''s case, the payment of pension should be from the date of order of the High Court and not from the date of order issued by the Government.
The learned Government advocate seeks to distinguish this aspect also by submitting that in the present case, a direction was issued by the learned Single Judge, only to consider the grant of pension to the complainant and not to grant pension etc.
We have perused this submission also, but we find there is absolutely no bonafides in the manner in which the respondent-accused have acted in the matter of grant of pension to the complainant and though the application had been made in the year 1986 and her late husband had filed application for grant of pension in the year 1982 with all supportive documents, he did not see the benefit during the life time and died in the year 1985 and the complainant having claimed as a dependent member of the freedom fighter being granted family pension only in the year 2011, that too after one round of writ litigation and one round of contempt proceedings speaks volumes, not merely of the gross letharginess that prevails in the administrative set-up, but also the attitude of the beauracratic set-up in our country who behave and conduct as if they are the masters of the people and not servants of the public and show all sorts of beauracratic red-tapisim that too in a sensitive matter such as honouring freedom fighters.
In our considered view, the manner in which the complainant''s application has been processed from the year 1986 is nothing short of sheer harassment to the lady and what really disturbs us is this tendency of harassing the complainant did not stop even after the order was passed by this Court in the writ petition.
The respondents-accused are not merely totally insensitive to the needs and aspirations of the people, but also are totally irresponsible towards their duties and have not shown commensurate urgency or awareness even after this Court passed the order in the writ jurisdiction and we are not sure that, but for the contempt petition filed by the complainant, respondents would have produced even this action at this belated hour.
We are also unable to accept the submission of Sri.Manvendra Reddy the learned Government Advocate that fixing the complainant''s pension from the date of the order is not justified and proper. We are not satisfied with the bonafide conduct of the respondents-accused for dropping contempt proceedings. In this sorry state of affairs, we direct the first accused/respondent, Secretary to Government of Karnataka DPAR (political pension) to appear before this Court on 28.10.2011.
Developments in the meanwhile can also be placed before this Court.
Furnish a copy of this order to the learned Government Advocate free of cost.
Mr.Manvendra Reddy, learned Government Advocate, has placed one more counter affidavit sworn to by Mohammed Sanaulla, presently working as Principal Secretary to Government, Department of Personnel and Administrative Reforms and is holding the present post from 18.5.2011 and prior to that the relevant department viz. the department of Administrative Reforms was in the exclusive supervision and control of another official by name Sri.Vidhyasagar, IAS, who was holding the additional charge of the post in addition to being the Principal Secretary, IT/BT, Government of Karnataka etc. and in the affidavit while the earlier developments have been recapitulated, it is indicated that in deference to the order passed by this Court on 17.10.2011, in this contempt proceedings, Government has re-examined the matter and insofar as the complainant is concerned, pension is now granted with effect from 30.3.1982 in relaxation of Rule 8 of Karnataka State Freedom Fighters'' Welfare Rules, 1969 as amended and effective from 18.5.2010 from which date onwards, the eligibility for pension is only from the date of the Government order and not earlier etc. 2. Mr.Mohammed Sanaulla is present before the Court.
We have perused the affidavit and the annexure. We find that, while the Government is, most of the times, inactive and lukewarm to court orders and directions, but the moment contempt petition is filed, there is frenzied activity, more so when the court passes orders with a little bit seriousness!. Government officials go above-board in obeying the orders now and further, many a times this will not merely be in consonance with the statutory provisions, but more so, to appease the court and to wriggle out the situation even by passing the extreme orders.
We find in the present situation when the complainant had sought for family pension only in respect of her first application of the year 1986, pension on the other hand, is now sought to be granted to her from the year 1982, the date on which her husband filed the application.
Family pension so far as the petitioner is concerned it can only be after the death of her husband and therefore, the eligibility can only be on and after 1986. Assuming that the Government has power to relax Rule 8 as one time exception, to the operation of this particular Rule as amended which makes a Government order effective for grant of pension only from the date of order and not from an earlier point of time etc.
We make it clear that the present Government order dated 21.10.2011, copy of which is produced as Annexure-R1 to the affidavit of Mr.Sanaulla dated 24.10.2011, should be brought in conformity with the legal position and we do not expect the State Government and its officials to go over-board and try to please the court, even by-passing the provisions of law or by passing orders at variance with law to the benefit or to the advantage of the complainant.
Such action is not a healthy trend as, unscrupulous persons may pressurise the State Government to pass orders in their favour which are otherwise not entitled or eligible for by merely invoking contempt jurisdiction. We grant three weeks time to the respondent-State to re-examine the matter and to ensure that the order is brought in conformity with the law and Rules and at any rate, the pension to be granted in favour of the complainant by the Government can be only from the year 1986 i.e. after the death of the freedom fighter and not from the date of the application which has been made earlier by the complainant''s husband!
Necessary orders may be passed in this regard for which we reserve liberty in favour of the Government and further, as we are of the view that, as no further proceedings are required to be passed in this contempt petition, it has to be dropped and is accordingly, dropped.
We also reserve liberty to the complainant for revival of the contempt petition if necessary orders are not passed within three weeks from today.