Gouriamma v. State of Kerala and The District Collector, Alappuzha

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ## & ## THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 ## WA NO. 270 OF 2019 JUDGMENT DATED 06.11.2017 IN WP(C) 28215/2008 OF HIGH COURT OF KERALA APPELLANT/S: GOURIAMMA, AGED 82 YEARS W/O. LATE V.K SUKUMARAN, ATTACHIRA, NORTH ARYAD P.O, KOMALAPURAM VILLAGE, ALAPPUZHA DT. PIN 688 542. BY ADV SRI.K.K.SATHISH ## RESPONDENT/S: - 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., GENERAL ADMINISTRATION (FFP.B) DEPARTMENT, THIRUVANANTHAPURAM – 695 001 - 2 THE DISTRICT COLLECTOR, ALAPPUZHA – 688 542. SRI. K.P.HARISH, SR. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No. 270/2019 : 2 : ## **Dated this the 28[th] day of March, 2022. JUDGMENT** ## **S. MANIKUMAR,CJ.** This appeal is filed challenging the judgment dated 06.11.2017 in W.P.(C) No. 28215 of 2008 filed by the late husband of the appellant. 2. Short facts leading to the writ petition are as hereunder: Writ petitioner, a freedom fighter, who had actively participated in the Punnappra Vayalar movement, had applied for Kerala Freedom Fighters' Pension as early as on 22.07.1981 before the District Collector, Alappuzha, the second respondent. However, the same was rejected as per Ext. P5 letter dated 29.01.1989. 3. Even though the petitioner has thereafter furnished Ext. P6 Personal Knowledge Certificate issued by a prominent freedom fighter, Sri. H.K. Chakrapani and Ext. P7 letter of the Tahsildar, Ambalappuzha recommending the writ petitioner's claim for KFF pension, the District Collector, Alappuzha, 2[nd] respondent, rejected the writ petitioner's application by Ext. P9. Hence, the writ petition seeking the following reliefs: W.A.No. 270/2019 : 3 : 1. Call for the records leading to the issue of Exts. P8 and P9 and quash its original by issue of a writ of certiorari. 2. Declare that the petitioner is entitled to get the benefit of KFF Pension (State Pension); 3. Issue a writ of mandamus or other appropriate writ, direction or order, compelling the respondents to grant the benefit of KFF Pension (State Pension) to the petitioner within a stipulated time; 4. Ext. P8 is the Government Order dated 5[th] February, 2022 issued by the Principal Secretary to the Government, General Administration (FFP-B) Department, Government of Kerala, by which the Government incorporated Rule 23 to the Kerala Freedom Fighters Pension Rules and the same is reproduced hereunder: ## “GOVERNMENT OF KERALA **Abstract** KERALA FREEDOM FIGHTERS PENSION SCHEME--RULE No. 23 INCORPORATED-ORDERS ISSUED ======================================================== GENERAL ADMNISTRATION (FFP-B) DEPARTMENT G.O. (P) No. 62/2008/GAD. Dated, Thi uvunanthapuram, 5th February, 2002 ======================================================== Read -1. G O. (P) No. 143/71/PT. dated 22-5-1971. 2. Government Circular No. 57183/FFP-B1.93/GAD. dt. ## **ORDER** W.A.No. 270/2019 : 4 : The Kerala Freedom Fighters Pension Scheme came into effect from 1 4-1971 with the last date fixed for the receipt of applications by the District Collectors as 15-8-1985 vide the G. O. read as above, Condonation of delay in genuine and deserving cases in filing the application is being done by Government. In the Circular read above Government have refixed a target date as 31-3-1994 to submit formal applications/review/appeal petitions and it was made clear that applications/review/appeal petitions received thereafter would be considered only on production of documentary evidences from official records such as warrant of arrest, Court records, Jail records clearly showing the applicant's suffering in connection with freedom struggle, as is being followed by Government of india in delayed applications. While disposing Writ Petitions filed by the freedom fighters challenging the rejection orders,'the Hon'ble High Court has observed and held that Circular No. 57183/FFP-B1/93/GAD dated 31-12-1993 cannot amend or restrict the scope of any statute, rule or notification. Meanwhile it was noticed that a huge number of applications without any acceptable documentary evidence are filed before the Government for freedom fighters pension. Government have examined the matter in detail. In order to ensure Kerala Freedom Fighters Pension to all deserving freedom fighters as an honour, Government have decided to amend partially the existing Rule 18 of the Government Order read above and to incorporate a new Rule as"No. 23 after the existing Rule No. 22 in the Government Order read above. W.A.No. 270/2019 : 5 : ## **AMENDMENT** In the said Rules th following new Rule shall be incorporated. “23. Applications/Review/Appeal Petitions received after 31-3-1994 will be considered only on production of documentary evidences, from official records such as warrant of arrest, Court records, Jail records clearly show1ng the applicant's suffering in connection with the freedom struggle.” By order of the Governor, ## **DR. P. PRABAKARAN, Principal Secretary to Government”** 5. Ext. P9 is the order dated 10.06.2008 passed by the District Collector, Alappuzha, respondent No.2, rejecting the application submitted by the writ petitioner for KFF Pension stating that as per the Government Order, G.O.P. No. 62/2008/GAD, he is not entitled for the pension in the absence of documentary evidences from the official records to prove his sufferings. 6. Materials on record discloses that earlier when the petitioner made an application for grant of Kerala Freedom Fighters' Pension, the District Collector, Alappuzha, respondent No.2, vide Ext. P5 dated 29.01.1989, rejected the request on the ground that on enquiry, it was not convinced that he is a genuine freedom fighter and that it was not proved that he has undergone underground on account of arrest W.A.No. 270/2019 : 6 : warrant. 7. Thus, after considering the rival contentions and also of the fact that the request of the writ petitioner was already rejected in 1989 by Ext. P5 dated 29.01.1989 and since in view of Rule 23 of the Kerala Freedom Fighters' Pension Rules, no application/review/appeal petitions received after 31.03.1984 without any documentary evidence cannot be entertained, writ court, vide judgment dated 6[th] November, 2017, dismissed the writ petition. 8. Being aggrieved, instant appeal is filed on the grounds _inter alia_ that when Rule 23A was brought into the Rules by an amendment to the Kerala Freedom Fighters' Pension Rules, 1971, vide G.O.(P) No. 16/2012/GAD dated 20.01.2012, the application of the writ petitioner has to be considered as per Rule 23A of the Rules, 1971 as amended. The said Government Order reads thus: ## **GOVERNMENT OF KERALA** ## Abstract General Administration Department-Kerala Freedom Fighters pension, Rule 1971- Sanctioning of Pension in relaxation of Rule 23 -Amended -Orders issued. ===================================================== ## GENERAL ADMINISTRATION (FFP-B) DEPARTMENT CG.O.(P) No. 16/2012/GAD Dated, Thiruvananthapuram dated 20.01.2012. ======================================================== W.A.No. 270/2019 : 7 : Read: 1. GO(P) No.143/1971/PD dated 22-05-1971 2. G.O(P) No. 62/2008/GAD dated: 05.02.2008 3. G.O(P) No. 355/2010/GAD dated: 08.11.2010. 4. G.O.(P) No.358/2011/GAD Dated, 08. 12.2011 5. Letter No.P.19/V/238/KFF/2011-12/570 dated 07.10.2011 from Accountant General (A&E), Kerala, Thiruvananthapuram. ## **ORDER** Government are pleased to amend Kerala Freedom Fighters Pension Rules, 1971 issued as per Government Order read as first paper above by incorporating Rule 23(A) to the existing Kerala Freedom Fighters Pension Rules viz; ## **AMENDMENT** “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.” The Government Order read as first paper above stands modified to this extent. **By Order of the Governor, K.R.JYOTHILAL** ## **Secretary to Government.”** 9. Placing reliance on the decision in _**Gouri Narayanan and**_ _**another v. State of Kerala and another**_ [2017 (5) KHC 884], Mr. W.A.No. 270/2019 : 8 : K.K. Satheesh, the learned counsel for the appellant, submitted that in a batch of writ petitions, this Court has held that consideration for granting pension is the genuineness of a claim and not the nature of evidence. He further submitted that the application of the writ petitioner has to be considered as per Rule 23A of the Rules, 1971 as amended by the order dated 20.01.2012 extracted above and in the light of _**Gouri Nayarayan**_ (supra). 10. Opposing the prayers sought for, Mr. K. P. Harish, learned Senior Government Pleader, submitted that even though an application was made for grant of Kerala Freedom Fighters' Pension, the same has been considered and rejected vide Ext. P5, which was not challenged and therefore, no application/review/appeal can be considered. 11. _Per contra_ , Mr. K. K. Satheesh, learned counsel for the appellant, submitted that earlier the application was considered only with reference to Rule 23 of the Rules and not under Rule 23A of the Rules, 1971, as amended in the year 2012. 12. Heard the learned counsel on both sides and perused the materials on record. 13. Earlier, the application of the writ petitioner was considered and rejected vide Ext. P5 on the grounds stated supra. Learned W.A.No. 270/2019 : 9 : counsel for the appellant submitted that when a subsequent application was made, on enquiry, the Tahsildar, Ambalapuzha, has also recommended for grant of Freedom Fighters' Pension. That apart, the appellant has also enclosed a certificate from a certifier. In such circumstances, contention has been made that the respondents ought to have considered the same and passed appropriate orders. 14. It is true, the application submitted by the writ petitioner initially was rejected. When the writ petitioner made another application for grant of pension, he has enclosed Ext. P6 personal Knowledge Certificate dated 25.10.2007 issued by one H. K. Chakrapani, certifying that he had suffered actual imprisonment for more than two years during the freedom struggle. It is also certified that the writ petitioner is a _bona fide_ freedom fighter and had remained underground for a period of more than six months from 28.10.1946 to 21.08.1947. That apart, after enquiry, the Tahsildar, Ambalapuzha, vide Ext. P7 letter dated 16.04.2008 has also recommended for pension. Exts.P6 Personal Knowledge Certificate and Ext.P7 letter reads thus: W.A.No. 270/2019 : 10 : **==> picture [427 x 597] intentionally omitted <==** W.A.No. 270/2019 : 11 : “H3-7387708 K.Dis. Taluk Office,Alappuzha Date: 16-4-2008 The District Collector, Aluppuzha. (Oflice seal of the District Collector's office dated 22-4-2008) Sir, Sub: Regarding the application submitted by Sukumaran for KFF Pension. Ref 1. Your letter No.H217002/08. 2. Report No.326/08 of the Village Officer, Komalapuram. See the reference. An enquiry has been conducted by the Village Officer with regard to the application submitted by Sukumaran, S/o Kulangara Kunjachan, Komalapuram Village for freedom fighters' pension and submitted a report as per reference No.2. As per the certificate produced by the applicant from the prominent freedom fighter Sri. H.K.Chakrapani dated 25-10-2007, it is found that the applicant had participated in the freedom struggle and had undergone underground sufferings in connection with the Punnapra-Vayalar freedom struggle. Sri.R.Chakrapani and Sri. T.K.Prabhakaran who are the recipients of freedom fighters' pension, have deposed that the applicant had participated in the PunnapraVayalar struggle alongwith them. In view of the aforesaid records, the freedom fighters' pension can be allowed to the applicant. Report, original application, copy of records are enclosed herewith. ## Yours faithfully, ## **Tahsildar** ” ## 15. From the materials on record, it could be deduced that without reference to Ext. P6 certificate dated 25.10.2007 and Ext. P7 W.A.No. 270/2019 : 12 : recommendation of the Tahsildar dated 16.04.2008, the District Collector has rejected the request of the writ petitioner vide Ext. P9 dated 10.06.2008, solely on the basis of the Government Order, G.O.P. No. 62/2008/GAD issued by the Government and stating that he is not entitled for the pension in the absence of documentary evidences from official records to prove his sufferings. 16. When Rule 23 of the Rules, 1971 and the orders passed by the authorities were challenged in a batch of writ petitions in _**Gouri Narayanan**_ (supra), a learned single Judge, after considering the position before the incorporation of Rule 23A to the Rules, 2011, held thus: “3. In the case of the petitioner it is to be noticed that the petitioner's application was first considered and rejected as per Ext.P5. The petitioner did not challenge the said order. The petitioner chose to file a representation in the year 2008 producing two other certificates of two freedom fighters. Tahasildar by Ext.P7 relied on the certificate produced and opined that the freedom fighters pension can be granted to the petitioner. However, the same is contrary to the Rule which was introduced by Ext.P8 specifically indicating that any application/Review/Appeal Petitions received after 31.3.1994 has to be supported by documentary evidences. The petitioner having produced no documentary evidence, there can be no consideration. Rule 23 has been considered by this court in W.A No. 674/2010 and upheld by judgment dated 05.04.2016 following the decision of another Division Bench in W.A No.1874/2010 dated 20.12.2012. 4. The learned Counsel for the petitioner has relied on a judgment of a learned Single Judge in W.P(C) No.27875/2008 dated 22.03.2016. There the freedom fighter had filed the application and W.A.No. 270/2019 : 13 : after his death, his wife had pursued it. The claim was rejected for the very same reason of absence of documentary evidence. The learned Single Judge directed the grant despite the absence of documentary evidence. However, in that case, the application was filed in 1981, with a certificate from a known freedom fighter. On being intimated that the certificate was insufficient, the petitioner produced another certificate. The District Advisory Committee, which met on 07.03.2001 after considering the materials produced, recommended the disbursal of freedom fighters pension. This was before the amendment to the Rules, which was made retrospective, and hence not applicable to the present case. The writ petition hence is found to be devoid of merit and would stand dismissed. No costs.” 17. Giving due considerations to the materials on record, we find force in the contention of the learned counsel for the appellant that Ext. P9 has been passed, without considering the genuineness of the claim, however, rejected by stating that there is no documentary evidence from the official records. 18. In the case on hand, writ petitioner has produced Ext. P6 personal knowledge certificate dated 25.10.2007 and also Ext. P7 the recommendation of the Tahsildar, Ambalapuzha. 19. In the light of the aforesaid decision in _**Gouri Narayanan**_ , the District Collector, Alappuzha, respondent No.2, ought to have considered the claim of the writ petitioner. Contention of the learned Senior Government Pleader that Ext.P5 rejection of the petitioner's application by the District Collector was not challenged and therefore, W.A.No. 270/2019 : 14 : the later claim cannot be considered, in our view, cannot be countenanced for the reason that even after Ext. P5 rejection, the application of the writ petitioner dated 24.03.2008 has been considered, but only with reference to G.O.(P) No. 62/2008/GAD dated 05.02.2008. The subsequent amendment issued vide G.O.(P) No. 16/2012/GAD dated 20.01.2012 and the decision of this Court in _**Gouri Narayanan**_ (supra) has to be taken note of. 20. In view of the above decision and discussions, the impugned judgment of the learned single Judge and Ext. P9 order of the District Collector dated 10.06.2008 declining pension, are set aside and the District Collector, Alappuzha, respondent No.2, is directed to consider the genuineness of the claim with reference to the documents, in the light of the decision in _**Gouri Narayanan**_ (supra) and pass appropriate orders, at the earliest and at any rate within two months from the date of receipt of a copy of the judgment. Accordingly, this appeal is allowed. sd/- **S. MANIKUMAR,** **CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_