Chinnu K. v. State of Kerala and The District Collector, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** ## **WP(C).No. 29013 of 2015** ## **PETITIONER/S:** **CHINNU K. AGED 79 YEARS W/O LATE P.C. VIDHYARTHI, NAVADA, KOZHUR, P.O, ERUVATTY, THALASSERY, KANNUR DISTRICT** **BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE DISTRICT COLLECTOR KANNUR 670 001** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 29013 of 2015 ================== Dated this the 28[th] day of January, 2019 **J U D G M E N T** The petitioner, a widow of a person, who is said to have participated in the freedom struggle, is aggrieved by the impugned Ext.P-20 decision of the 1[st] respondent State Government rendered whereby the request of the petitioner for freedom fighter's continuous pension under the Kerala Freedom Fighter's Pension Rules, 1971, has been denied. The prayers in the above Writ Petition (Civil) are as follows: - _“i) Issue a writ of certiorari or any other writ, order or direction to set aside Ext.P-20 order;_ - _ii) issue a writ of mandamus or any other appropriate writ order or direction to the 1[st] respondent to disburse the freedom fighters pension to the petitioner with effect from the date of Ext.P-7 application without further delay._ - _iii) declare that the petitioner is entitled for the freedom fighters pension on account of participation of her husband P.C.Vidhyarthi, under the Kerala Freedom Fighter's Pension Scheme._ - _iv) Declare that an application for pension under the Kerala Freedom Fighter's Pension Scheme is liable to be considered and granted in the light of the certificates issued by the prominent freedom fighters._ - _v) award cost to the petitioner;_ - _vi) issue such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case.”_ 2. Heard Sri.M.Sasindran, learned counsel appearing for the petitioner and Sri.Jestin Mathew, learned Government Pleader W.P.(C).29013/15 - : 3 :- appearing for the respondents. 3. From the pleadings and materials on record, it is seen that the petitioner's deceased husband Sri.P.C.Vidhyarthi, was an active participant in freedom movement and had participated in the Quit India Movement and apart from that, he had also actively participated in the popularisation of Khadi as well as the propagation of Hindi language during the year 1942-47. The petitioner's husband Sri.P.C.Vidhyarthi, had filed application claiming freedom fighter's pension under the Kerala Freedom Fighters' Pension Rules, 1971. But the same was rejected as per Ext.P-8 order dated 7.1.1997 issued by the 2[nd] respondent District Collector, Kannur, on the ground that the scheme under which he had applied for, was already cancelled. The petitioner pointed out that the cancellation of the scheme is only with regard to the popularization of Khadi and propagation of Hindi language alone, and not the specific scheme for Kerala Freedom Fighter's pension Rules, 1971, which was never stopped. Later the petitioner's husband died on 26.7.1997. Thereafter the petitioner had submitted Ext.P-11 application dated 18.12.2006 along with supporting documents and on the abovesaid aspects, the Village Officer concerned had submitted Ext.P-12 report on 10.5.2007 as to the genuineness of the claim and the eligibility of the claim of the W.P.(C).29013/15 - : 4 :- petitioner for freedom fighter's continuous pension. But later the 1[st] respondent Government had rejected the said application as per Ext.P-13 order dated 12.2.2008 on the ground that warrant of arrest, records of the jail, courts have not been produced by the petitioner to prove her claim that her husband had gone underground in connection with the participation in the freedom struggle and also on the ground that the 2[nd] respondent District Collector had not recommended his case. On a specific request made by the petitioner, the Revenue Divisional Officer by Ext.P-14 letter dated 22.2.2011 has informed the petitioner that all the records relating the petitioner's case could not be found even though search was made. Thereafter, the petitioner had submitted a representation as per Ext.P-15 before the Hon'ble Chief Minister and later this Court as per Ext.P-16 judgment dated 9.1.2014 rendered in W.P.(C).No. 30500/2011 had directed the petitioner to approach the 2[nd] respondent District Collector, who in turn was directed to consider the said application. By Ext.P-18 letter dated 20.3.2014 of the 1[st] respondent State Government addressed to the 2[nd] respondent District Collector, the request of the petitioner was again denied on the very same ground reiterating that official records with respect to the claim have not been produced along with the application. This in turn was W.P.(C).29013/15 - : 5 :- communicated to the petitioner by the 2[nd] respondent District Collector as per Ext.P-17 letter. 4. The abovesaid rejection orders as per Exts.P-18 and P-17 were challenged by the petitioner again by filing Writ Petition as W.P. (C).No. 15784/2014 before this Court. This Court after considering all the relevant aspects of the matter including, on the basis of the pleadings and records as well as the counter affidavit of the respondents, had rendered Ext.P-19 judgment on 25.5.2015 disposing of the W.P.(C).No.15784/2014, with the clear finding that the rejection of the petitioner's request for grant freedom fighter's pension, etc. is illegal and improper. This Court in Ext.P-19 judgment found that rejection of the petitioner's request on the grounds cited in the impugned Ext.P-18 rejection order was mainly on the basis of the amended provisions of the Kerala Freedom Fighter's Pension Rules, 1971 introduced as per Rule 23 thereof, which was inserted on 5.2.2018, providing that all applications received after 31.3.2018 will be considered only on production of documentary evidence from the official records such as warrant of arrest, court records, jail records, clearly showing the applicant's suffering in connection with the freedom struggle, etc. This Court found that the petitioner and her husband had made their claim long prior to the coming into force of W.P.(C).29013/15 - : 6 :- Rule 23, which was inserted only on 5.2.2018 and that the said application was kept pending quite a long time and that had decision been taken properly within time, then the rigour of Rule 23 would not have been attracted to the petitioner's case. 5. This Court also found in Ext.P-19 judgment more particularly in para 10 thereof that later the State Government had introduced another amended provision in the Kerala Freedom Fighters' Pension Rule, 1971, by inserting Rule 23A thereof which enables consideration of the case of the petitioner without insisting on any of the conditions prescribed in Rule 23. Accordingly, this Court found in Ext.P-19 judgment that the respondents were not justified in sticking on Rule 23 of the Rules in order to reject the application of the petitioner and that the respondents were obliged to have considered the documents produced by the petitioner with due application of mind and with due regard to the cause for which persons like the petitioner's husband had fought for the freedom of our country, and in the light of the various judgments recited therein. Further this Court has held that the claims of this nature under the scheme should be determined on probabilities and not by sticking on to the higher and superior standards of proof beyond reasonable doubt but only on the inferior norms of proof based on W.P.(C).29013/15 - : 7 :- preponderance of probabilities and not on strict rules of evidence, etc. This Court held unequivocally that the passing of Ext.P-18 rejection order is without any proper application of mind and simply reproducing the words in the earlier orders of rejection passed by them as in Ext.P-13, etc. and that this Court had specifically directed the respondents in Ext.P-16 judgment dated 9.1.2014 in W.P. (C).No.30500/2011, that the respondents were duty bound and legally obliged to consider the application with reference to the documents produced keeping in mind that the objective of the scheme is to mitigate the sufferings of the freedom fighters for which a liberal and not technical approach is to be made. This Court found that the respondents have rejected the application of the petitioner as per Ext.P-8 on 7.1.1997 and that there cannot be any dispute over the fact that the application submitted claiming freedom fighter's pension at least on 24.3.1995, which is reference No.2 in Ext.P-8 and that the claim of the petitioner was rejected mainly on the ground that the scheme for Hindi pracharak was cancelled and without examining the merits of the claim of the petitioner for grant of freedom fighter's pension. This Court further found that the main ground on which the 1[st] respondent Government had rejected the claim of the petitioner is that the petitioner had not produced certificates from the jail W.P.(C).29013/15 - : 8 :- authorities along with her application and that the respondents should have actually considered the case of the petitioner in terms of the provisions of Rules as it stood prior to the introduction of Rule 23 which was inserted only on 5.2.2013 or at least from the date of amended Rule 23A, which gives a liberlised treatment to case as in the instant one. On the basis of these findings, this Court had quashed the impugned Ext.P-18 rejection order and directed the respondents to consider the claim of the petitioner in the correct legal perspective and subject to the documents like Exts.P-1, P-6 and P-13 and in the light of the various judgments dealt with in Ext.P-19 judgment and to pass orders thereon after granting reasonable opportunity of being heard to the petitioner, within two months, etc. 6. Now the 1[st] respondent has again rejected the claim of the petitioner as per the impugned Ext.P-20 G.O(Rt.)No.6582/ 2015/GAD dated 4.9.2015 virtually reiterating by the same grounds that the the petitioner has not produced the requisite documents from jail authorities, court records, etc. 7. The petitioner's entitlement to be considered has already been concluded by Ext.P-19 judgment of this Court. This Court had clearly found that the petitioner had initially submitted Ext.P-7 application as early as 24.3.1995, and the rejection as per Ext.P-8 W.P.(C).29013/15 - : 9 :- order 7.1.1997 on the mere ground that he could not technically fulfill the requirements of the scheme for propagation of Hindi and Khadi, etc. without examining the merits of the claim of the petitioner for freedom fighter's pension was illegal and ultra vires and that the respondents were obliged to have considered the claim of the petitioner for freedom fighter's pension based on the law as it stood in 24.3.1995 and not based on Rule 23, which was incorporated w.e.f. 5.2.2008. That apart, now the respondents themselves have liberally introduced Rule 23A thereof in the provisions of the Kerala Freedom Fighters' Pension Rules, 1971, w.e.f. 20.1.2012, which is even prior to the issuance of the impugned Ext.P-18 rejection order dated 20.3.2014. Rule 23A as introduced by the 1[st] respondent as per G.O(P). 16/2012/GAD dated 20.1.2012, which reads as follows: _“23(A) – Government shall have the power to sanction Kerala Freedom Fighters Pension/Family Pension/Continuous Pension in relaxation of Rule 23 whenever the Government are undoubtedly convinced of the genuineness of the claim. This shall be applicable to all cases in which sanction for pension has already been ordered by Government.”_ 8. Having regard to the facts and circumstances disclosed in this petition, this Court is of the considered view that even the subsequent rejection of the petitioner's claim for freedom fighter's continuous pension as per the impugned Ext.P-20 order dated 4.9.2015 is illegal and ultra vires and in violation of the specific W.P.(C).29013/15 - : 10 :- findings and orders made by this Court in Ext.P-19 judgment and matter requires serious reconsideration at the hands of the respondent State Government and that too, particularly in the light of the specific provisions made in Rule 23A of the Kerala Freedom Fighters Pension Rules, 1971. In the impugned Ext.P-20 it has also been inter alia stated more particularly in the final two paragraphs thereof that the petitioner may not be entitled for grant of pension for propogating Khadi & Hindi, as she is a service pensioner, etc. However, nothing is stated therein that such receipt of service pension would stand in the way of getting freedom fighter's continuous pension. 9. It appears that the Govt. Order issued G.O(P).No. 355/2010/GAD dated 8.11.2010 by amending Rules 10 and 11 thereof to the following effect: _“Rule.10. Widows are eligible for Kerala Freedom Fighter's Continuous Pension (KFFCP) till their remarriage or death irrespective of income and they are not eligible for Kerala Freedom Fighters' Continuous Pension (KFCCP) 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._ _Rule.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.”_ W.P.(C).29013/15 - : 11 :- 10. Later the Government has also issued G.O(P).No. 7/2014/GAD dated 8.1.2014 stating that the said G.O dated 8.11.2010 shall have effect only from the date of that order viz. 8.11.2010 as the order does not have retrospective effect and continuous pension already sanctioned to the widows of freedom fighters before 8.11.2010 are exempted from the condition stipulated in Rules 10 and 11, etc. as the G.O(P). dated 8.11.2010 does not have any retrospective affect. It has already been found by this Court conclusively in Ext.P-19 judgment that the petitioner's case should have been considered at least from 24.3.1995 on the basis of the amended rules and the earlier action on the part of the respondents in rejecting the claim of the petitioner merely on the ground that she was ineligible for the grant of pension under the Scheme for popularization of Hindi & Khadi, etc. was egregiously wrong inasmuch as no consideration regarding the merits of the claim for freedom fighter's pension was then made. Moreover, the death of the petitioner's husband had occurred on 26.7.1997. This Court has already held in the judgment dated 5.9.2018 in W.P.(C).No. 10887/2014 that in the case in _**Laya v. State of Kerala**_ [2018 (4) KLT SN 14 C.16] that the dependent widow will get the right to be considered for grant of continuous freedom fighter's pension on the death of the freedom fighter and not before, etc. and W.P.(C).29013/15 - : 12 :- further that the objective of Rule 10 is that sought to be achieved by the amendment for eligibility of the widow is made dependent on reasonable income, but that may be fixed by the competent authorities of the State Government, etc. and this Court had also requested the 1[st] respondent State Government to seriously consider the amendment of the said Rules regarding Rule 10 regarding linking service pension to the claim of widows for continuous pension. In the instant case, this Court has no hesitation to hold that the claim of the petitioner's husband should have been duly considered with reference to the Rule provisions as contained as on 24.3.1995, which is reference No.2 in Ext.P-8 as found by this Court in para 10 of Ext.P-19 judgment. The petitioner's claim for freedom fighter's continuous/ dependent pension as claimed has to be considered as crystallized on 26.7.1997 (date of death of her husband). Therefore if proper consideration had been made at the proper time, then certainly the new detrimental provisions of the amended Rule 23 (inserted on 5.2.2008) as well as the amended Rule 10 (inserted as per G.O. dated 8.11.2010) could not have affected the petitioner's claim. So also, as already ordered by the Government in G.O(P). dated 8.1.2014, the new norms in G.O(P). dated 8.11.2010 introducing the amended Rule 10, which links up service pension for W.P.(C).29013/15 - : 13 :- widows' claim for continuous pension does not have any retrospective effect = and continuous pension already sanctioned to the widows before 8.11.2010 are exempted from the conditions in Rules 10 and 11. Therefore, it is ordered and declared that since the petitioner's claim should have been considered well before 8.11.2010, the provisions of the G.O(P). dated 8.11.2010 also cannot be pressed into service against the case of the petitioner. In the light of aspects, the matter will stand remitted to the 1[st] respondent for consideration afresh more so particularly in the light of the provisions contained in Rule 23A, and also with reference to the position of law as it stood as on 24.3.1995. 11. The petitioner may submit her written submission in the matter before the 1[st] respondent and the 1[st] respondent will take a considered decision on the claim of the petitioner, in view of the provisions contained in Rule 23A of the Rules and also taking into account documents like Exts.P-1 to P-6 and P-12 and in the light of the judgments already referred to in Ext.P-19 judgment. The entire formalities in this regard shall be completed by the 1[st] respondent, without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. W.P.(C).29013/15 - : 14 :- With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** W.P.(C).29013/15 - : 15 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE ISSUED BY MR. V.P APPUKUTTAN** - **EXHIBIT P2 EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE ISSUED BY SRI A.V. SREEKANDA POUDVAL PROMINENT FREEDOM FIGHTER** - **EXHIBIT P3 EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE ISSUED BY PV. KUNHIRAMAN NAMBIAR PROMINENT FREEDOM FIGHTER** - **EXHIBIT P4 EXHIBIT P4 A TRUE COPY OF THE PERSONNEL KNOWLEDGE CERTIFICATE ISSUED BY PROMINENY FREEDOM FIGHTER T.V. KANNAN** - **EXHIBIT P5 EXHIBIT P5 A TRUE COPY OF THE PERSONNEL KNOWLEDGE CERTIFICATE ISSUED BY PROMINENT FRREDOM FIGHTER K.P KANNAN** - **EXHIBIT P6 EXHIBIT P6 TRUE COPY OF THE CERTIFICATEISSUED BY V.M. GOVINDAN NAMBISSAN** - **EXHIBIT P7 EXHIBIT P7 A TRUE COPY OF THE APPLICATION FILED BY MR. P.C VIDHYARTHI FOR FREEDOM FIGHTERS PENSION BEFORE THE 2ND RESPONDENT DATED 24-031995** - **EXHIBIT P8 EXHIBIT P8 A TRUE COPY OF THE LETTER ISSUED BY THE TAHSILDAR DATED 07-01-1997** - **EXHIBIT P9 EXHIBIT P9 THE RELEVANT PAGES OF THE BUDGET SPEECH OF THE FINANCE MINISTER FOR THE YEAR 2004-2005** - **EXHIBIT P10 EXHIBIT P10 A TRUE COPY OF THE RELEVANT PAGE OF MATHRUBHUMI DAILY DATED 07-07-2005** - **EXHIBIT P11 EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION DATED 18-12-2006** W.P.(C).29013/15 - : 16 :- **EXHIBIT P12 EXHIBIT P12 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFGFICER, ERUVATTY DATED 10-05-2007** **EXHIBIT P13 EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION NO 108494/F.F.P.B.2/07/G.A.D DATED 12-02-2008** **EXHIBIT P14 EXHIBIT P14 A TRUE COPY OF THE COMMUNICATION DATED 22-02-2011 ISSUED BY THE REVENUE DIVISIONAL OFFICER, THALASSERY** **EXHIBIT P15 EXHIBIT P15 A TRUE COPY OF THE REPRESENTATION TO THE THE CHIEF MINISTER** **EXHIBIT P16 EXHIBIT P16 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 09-01-2014 IN WP(C) NO 30500 OF 2011** **EXHIBIT P17 EXHIBIT P17 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDNET** **EXHIBIT P18 EXHIBIT P18 A TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 20-03-2014** **EXHIBIT P19 EXHIBIT P19 A TRUE COPY OF THE JUDGMENT IN WPC NO 15784 OF 2014 DATED 25-05-2015** **EXHIBIT P20 EXHIBIT P20 A TRUE COPY OF THE ORDER NO G.O(RT) NO 6582/2015/GAD DATED 04-09-2015**