Kaumari Kesavan v Union of India and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940** **WP(C).No. 791 of 2013** **PETITIONER:** **KAUMARI KESAVAN, W/O.LATE BAVA KESAVAN, POZHIKKAL KANDATHIL, ARATTUVAZHY P.O., ALAPPUZHA- 688 007.** **BY ADV.SRI.K.K.SATHEESH** **RESPONDENT(S):** **1. UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY TO GOVT., MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS'S DIVISION, NEW DELHI CITY CENTRE-II BUILDING, 2ND FLOOR, 'A'WING, JAISINGH ROAD, NEAR YMCA, NEW DELHI - 110 001.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT, GENERAL ADMINISTRATION (FF.P.A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.S.KRISHNAMOORTHY, CGC R2 BY ADV. GOVERNMENT PLEADER SMT.A.C.VIDYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-05-2018, ALONG WITH WP(C) 6699/2013 AND CONNECTED CASES,THE COURT ON 30-05-2018 DELIVERED THE FOLLOWING:** **PBS** ## **WP(C).No. 791 of 2013** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 26/9/1972. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 8/8/1975 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA INVITING HIM TO RECEIVE “THAMRAPATHRA”. EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S LATE HUSBAND DATED 17.4.1998.** **EXHIBIT P4 TRUE COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY SRI. V.S.ACHUTHANANDAN MLA DATED 16.10.1998.** - **EXHIBIT P5 TRUE COPY OF THE NON-AVAILABILITY OF RECORDS CERTIFICATE (NARC) FROM THE SUPDT. OF SPECIAL SUB-JAIL, ALAPPUZHA DATED 26.7.1975.** - **EXHIBIT P6 TRUE COPY OF THE CO-PRISONER CERTIFICATE (CPC) ISSUED BY SRI. P.A. SOLOMON EX-MP DATED 21.2.2005.** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 29.1.2009 PASSED BY THIS HON'BLE COURT IN W.P.(C). NO. 16990/2005.** - **EXHIBIT P8 TRUE COPY OF ORDER NO. 52/CC/K/35/2009-FF/SZ DATED 9.9.2009 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 22/6/2012 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN WP(C) NO. 8623/2010.** - **EXHIBIT P10 TRUE COPY OF THE LETTER NO. 67478/FFP.A2/2012/GAD DATED 26.9.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 15.10.2012.** - **EXHIBIT P12 TRUE COPY OF THE LETTER NO. 67478/FFP.A2/2012/GAD DATED 19.11.2012 ISSUED BY THE 2ND RESPONDENT.** - **RESPONDENT'S EXHIBITS** - **EXHIBIT R1(A) TRUE COPY OF THE SILENT FEATURES OF THE SCHEME.** **/TRUE COPY/** **PS TO JUDGE** **PBS 5/6/2018** ## **A. MUHAMED MUSTAQUE, J.** ------------------------------------ ## W.P. (C) Nos.791, 6699, 8821 & 10047 of 2013 ------------------------------------ Dated this the 30[th] day of May, 2018 ## **J U D G M E N T** These bunch of writ petitions are related to the claim of pension under the Swatantrata Sainik Samman Pension Scheme. In all these writ petitions, a common question arises as to the eligibility of a certifier to issue Personal Knowledge Certificate. Therefore, it is appropriate to dispose these cases by a common judgment. However, the facts involved in each case are separately narrated for the purpose of understanding the issues involved. In all these cases, pension is claimed in connection with participation in the Punnapra-Valayar Movement. ## W.P.(C) No.791 of 2013 2. The petitioner is the widow of late Bava Kesavan. According to the petitioner, late Bava Kesavan had taken part in the Punnapra-Vayalar Movement. There is no primary **W.P.(C) Nos.791/2013 & conn. cases** **2** evidence. The State Government had not forwarded a positive recommendation as the Personal Knowledge Certificate issued by Sri.P.A Solomon, Ex-MP, cannot be relied as he was not an eligible certifier. ## W.P.(C) No.6699 of 2013 3. The petitioner is the widow of late Ayyappan Bhaskaran. According to the petitioner, Ayyappan Bhaskaran had taken part in the Punnapra-Vayalar Movement. The petitioner also refers to the 'Thamrapathra' conferred on her husband. 'Thamrapathra' was conferred to honour such persons who had taken part in the freedom struggle. Similar to other cases as referred above, the petitioner's case was not positively recommended by the State Government as the certifier Sri.P.A.Solomon, Ex-MP, was not an eligible certifier. ## W.P.(C) No. 8821 of 2013 4. The petitioner claims pension as a freedom fighter. There is no primary evidence. The petitioner's application had not been positively recommended by the State Government stating that the certifier, Sri.P.A.Solomon, Ex.MP, is not an eligible certifier since his jail sufferings is below one year. **W.P.(C) Nos.791/2013 & conn. cases** **3** ## W.P.(C) No.10047 of 2013 5. The petitioner is the widow of late N.A.Robert. The petitioner claims that her husband had taken part in the Punnapra-Vayalar Movement. There is no primary evidence. In this case also, the State Government had not forwarded a positive recommendation for the reason that the certifier, Sri.Solomon, was not an eligible certifier. 6. Learned counsel for the petitioners argued that Sri.Solomon was an Ex.MP and he had undergone imprisonment in relation with Punnapra-Vayalar Movement and he is a recipient of SSS pension. Therefore, the certificate issued by him cannot be discarded wholly by the authorities. The petitioners also submit that the Union Government had rejected the claims of pension even in respect of persons on whom the State Government had conferred 'Thamrapatra'. 7. Learned counsel for the petitioners relied upon the judgment of the learned Single Judge of this Court in _**Subhadra K.** vs._ _**Union of India and others**_ (2012 (2) KHC 589) wherein this Court had held that the certificate issued by a co-prisoner who had undergone imprisonment for a lesser term than one year cannot be a reason to deny pension. **W.P.(C) Nos.791/2013 & conn. cases** **4** Learned counsel also relied upon the judgment of this Court in _**Suseela Chakrapani** vs._ _**Union of India**_ (2009 (2) KLT SN 49 (C.No.53) wherein this Court had ordered the payment of pension after adverting to the certificate issued by Sri.Solomon. 8. Per contra, learned counsel for the Central Government referred to various judgments of the Supreme Court and particularly drew my attention to the decision in _**Union of India (UOI)** vs._ _**Bikash R. Bhowmick and Ors.**_ ((2004) 7 SCC 722) and submitted that the court cannot travel beyond the pension scheme to grant pension. 9. The question is whether the orders impugned need to be interfered with or not. In all these cases, the certifier is an Ex-MP, Sri.P.A.Solomon. The State Government as well as the Union Government found that Sri.Solomon is not an eligible certifier since his period of jail suffering is less than one year. The Scheme itself refers, as to the manner in which one has to prove the claim. There is no challenge to the Scheme. There is no primary evidence in all these matters. Merely because the certifier was a recipient of SSS pension itself does not make such a person an eligible certifier in terms of the **W.P.(C) Nos.791/2013 & conn. cases** **5** ## Scheme. In the scheme itself it is stated as follows: “In the case of jail suffering, the applicant is required to submit two co-prisoner's certificates (CPC), who have undergone jail suffering of minimum one year and who were with the applicant in jail. In case the certifier happens to be a sitting or Ex.MP/MLA, only one certificate in place of two is required”. 10. Therefore, it is clear that the petitioners will have to prove that the certifier being an Ex-MP had undergone imprisonment for one year. In _Subhadra's case_ (supra) and in _Suseela's case_ (supra), this Court had not adverted the binding judgment of the Supreme Court in _Bikash's case_ (supra) wherein it was held as follows: “Learned Additional Solicitor General appearing on behalf of the Union of India relied upon two decisions of this Court viz., Mukund Lal Bhandari v. Union of India MANU/SC/0325/1993 and Union of India v. Mohan Singh MANU/SC/1618/1996 to the effect that pension could be sanctioned only as per proof as required in the Pension Scheme and in no other manner. We think there is great force in the submission made by the learned Additional Solicitor General. We find that the High Court could not have travelled beyond the Pension Scheme to find that there was substantial compliance with the prerequisites as to suffering of imprisonment. In order to get the benefit of the Pension Scheme, the proof required must be as provided in the Pension Scheme itself. As long as such proof was not available, the benefit could not have been granted. Therefore, we set aside the order by the High Court and dismiss the writ petition filed by Respondent 1. The appeal is allowed accordingly”. **W.P.(C) Nos.791/2013 & conn. cases** **6** In the light of the binding judgment of the Supreme Court, there cannot be departure from the mandate of manner of proof under the Scheme to obtain pension. Therefore, I am of the considered view that Sri.Solomon being not eligible to certify, petitioners are not entitled for SSS pension. Accordingly, all these writ petitions are dismissed. Sd/- **A. MUHAMED MUSTAQUE JUDGE** smp