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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.31000 of 2025

Rushi Dei …. Petitioner

Represented by Adv.–

Mr. S. Sourav, Advocate

-Versus-

State of Odisha and others …. Opposite Parties

Represented by Adv.–

Mr. Saswat Das, Addl. Govt. Advocate (State)

CORAM:

HON’ BLE THE CHIEF JUSTICE

AND

HON’BLE MR. JUSTICE MURAHARI SRI RAMAN

ORDER

Order No. 22.12.2025

02. 1. The writ petition was filed by the petitioner assailing the inaction

on the part of the authorities in providing the family pension to a

freedom fighter (non-jail) as he being one of the persons coming within

the purview thereof is denied of such pension. The learned Single Judge

thought the relief claimed in the instant writ petition is of a greater

importance concerning the framing of the scheme or the rules relatable

to the family pension to be granted to the family members of the

freedom fighter (non-jail) and directed the same to be registered as the

Public Interest Litigation (PIL).

2. The petitioner claiming herself to be the wife of one late Keshab

Pradhan, who was a non-jail freedom fighter, is denied of family

pension as the same is provided to a freedom fighter (jail), who

sacrificed his life for securing the freedom from the British colony. The

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representations were made to several authorities, but according to the

petitioner, they are not attended.

3. The primary question involved in the instant writ petition whether

the Court exercising power under Article 226 of the Constitution of

India can direct the executives/legislative to enact law, rule or frame

scheme or any such direction would tantamount to transgression of line

of separation envisaged into the Constitution amongst the legislative,

the executive and the judiciary. The legislature is competent enough to

legislate the law or make the rules and to run a Government, the policy

is/are taken in the better interest of the citizenry of the State or the

country by exercising their powers conferred by the Constitution of

India. The role of the judiciary is primarily to upheld the law and see its

due implementation and there is no incongruity in perceiving that any

violation or transgression of the line by the executive or the legislature

is tested on the nuances of the provisions contained in the

Constitutional law. The reason being that all the legislations are

subservient to the Constitution adopted by the people of the country

and, therefore, the Constitution is regarded as a supreme law.

4. Whether the Court should direct the executive or the legislature to

enact the rule in exercise of powers conferred under Article 226 of the

Constitution of India, the apex Court in Mallikarjuna Rao Vs. State of

Andhra Pradesh, reported in (1990) 2 SCC 707 held that it would not

be proper on the part of the High Court or the Tribunal even to issue

advisory sermons to the executive to legislate any Rule or Act in the

following:

“11. The observations of the High Court which have been made as

the basis for its judgment by the Tribunal were only of advisory

nature. The High Court was aware of its limitations under Article

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226 of the Constitution of India and as such the learned Judge

deliberately used the word “advisable” while making the

observations. It is neither legal nor proper for the High Courts or

the Administrative Tribunals to issue directions or advisory

sermons to the executive in respect of the sphere which is

exclusively within the domain of the executive under the

Constitution. Imagine the executive advising the judiciary in

respect of its power of judicial review under the Constitution. We

are bound to react scowlingly to any such advice.

12. This Court relying on Narinder Chand Hem Raj v. Lt.

Governor, Administrator, Union Territory, Himachal

Pradesh [(1971) 2 SCC 747: (1972) 1 SCR 940] and State of

Himachal Pradesh v. A Parent of a Student of Medical College,

Simla [(1985) 3 SCC 169] , held in Asif Hameed v. State of Jammu

& Kashmir [1989 Supp (2) SCC 364] as under: (SCC p. 374, para

19)

“When a State action is challe