## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
**FRIDAY ,THE 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940**
## **WP(C).No. 20458 of 2016**
## **PETITIONER/S:**
**1 P.U PATHROSE, AGED 88 YEARS POOVAKKATTIL HOUSE, ARIYOOR, KOTTOPPADAM.P.O, MANNARKKAD, PALAKKAD DISTRICT, KERALA**
- ***2 AGNUS PATHROSE, AGED 81 YEARS W/O.LATE PATHROSE, AMBHAZHAKKODE, KOTTOPPADAM P.O., PALAKKAD, KERALA - 678 583**
- ***ADDL. PETITIONER HAS BEEN IMPLEADED AS PER ORDER DTD. 14.9.2018 IN I.A.NO.1/2018.**
**BY ADVS. SRI.V.C.MADHAVANKUTTY**
## **RESPONDENT/S:**
- **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FFR DIVISION, 2ND FLOOR, NDCC-II BUILDING, JAI SING ROAD, NEW DELHI-110001**
- **2 STATE OF KERLA REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP A), SECRETARIAT, THIRUVANANTHAPURAM-695001**
- **3 THE DISTRICT COLLECTOR PALAKKAD-678001**
## **OTHER PRESENT:**
**SRI.N.NAGARESH, ASGI FOR R1, SRI.JESTIN MATHEW, GOVT. PLEADER FOR R2 AND R3**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **J U D G M E N T**
**The grievance of the original writ petitioner was pertaining to the impugned decision of the 1[st] respondent-Union Government as per Ext.P-6 proceedings dated 22.4.2014 whereby his claim for freedom fighter's pension under the Central Swatantrata Sainik Samman Pension Scheme, 1980 (SSSP Scheme, 1980), has been rejected. The Writ Petition was filed on 15.6.2016 and during its pendency, the original writ petitioner had died on 19.7.2017 as evident from Ext.P-8 death certificate. This Court as per order in I.A.No.1/2018 has permitted the impleadment of the deceased petitioner's widow (Agnus Pathrose) as additional petitioner in this Writ Petition in**
**substitution of the original writ petitioner.**
**2. The main prayers in this Writ Petition**
## **(Civil) are as follows:**
|**_“(I)_**|**_Call for the records leading to Exhibit_**|
|---|---|
||**_P6 and quash Exhibit P6, by issuing a_**|
||**_Writ of certiorari._**|
|**_(II)_**|**_to declare that petitioner is entitled_**|
||**_for SSS pension from central Government_**|
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## **W.P(C).No.20458 Of 2016**
_**(III) Issue a Writ of Mandamus directing the 1[st] respondent to reconsider the application filed by the Writ petitioner for SSS Pension which leads to Exhibit P6 order / communication.”**_
**3. Heard Sri.V.C.Madhavankutty, learned**
**counsel for the petitioner, Sri.N.Nagaresh, learned Assistant Solicitor General appearing for R-1 and Sri.Jestin Mathew, learned Government Pleader appearing for respondents 2 & 3-State Government authorities.**
**4. The claimant freedom fighter, who is the deceased original writ petitioner will be referred to as the petitioner for convenience unless otherwise indicated and his widow will be described as the additional petitioner.**
**5. The case of the petitioner is that he was a freedom fighter, who had taken part in the freedom movement and that consequent to his involvement he was arrayed as an accused in C.C.No.59/1122 ME on the file of the judicial First Class Magistrate Court, Muvattupuzha, consequent to which an arrest warrant was issued**
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**W.P(C).No.20458 Of 2016**
**against him and he was constrained to remain underground for the period from 8.9.1946 to 9.9.1947. Though initially the petitioner had placed reliance on the Personal Knowledge Certificates issued by five certifiers, as of now, he is placing reliance on the Personal Knowledge Certificate issued by one Markose Abraham.**
**6. The petitioner was granted freedom fighter's pension under the Kerala Freedom Fighters' Pension Rules, 1971 as per Ext.P-1 proceedings dated 15.10.1988. Thereafter the petitioner had submitted the application for the grant of freedom fighter's pension under the Central Scheme and his case was duly recommended by the advisory committee presided over by the District Collector, Palakkad as can be seen from Ext.P-3 proceedings dated 6.5.2002. Pursuant to Ext.P-3, the 3[rd] respondent-District Collector has forwarded Ext.P-2 letter dated 11.5.2002 to the**
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**W.P(C).No.20458 Of 2016**
**2nd respondent-State Government recommending his case and stating about the various PKCs issued in his favour. Ext.P-4 is the NARC issued by the Judicial First Class Magistrate Court, Muvattupuzha, stating that records in relation to the aforementioned criminal case are no longer available on the file of that court. By Ext.P-5 letter dated 10.12.2013, the 2[nd] respondent-State Government had recommended the case of the petitioner to the 1[st] respondent-Union Government. Later, the 1[st] respondent-Union Government had rejected the claim of the petitioner as per the impugned Ext.P-6 proceedings dated 22.4.2014 on the ground that he has not been able to establish his claim on the basis of required evidentiary criteria as per the Central Scheme. It is this order at Ext.P-6 that is under challenge in this Writ Petition.**
**7. Shorn of all the details, the reliance made by the petitioner is essentially on the**
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**W.P(C).No.20458 Of 2016**
**Personal Knowledge Certificate issued by one Markose Abraham. The said certifier has stated that the petitioner had remained underground for the period from 8.9.1946 to 9.9.1947 due to the above said criminal proceedings and further that the certifier was a recipient of Central Pension and he himself had suffered jail imprisonment for the period from 4.12.1946 to 22.9.1947. The 1[st] respondent-Union Government has held that the said PKC is not acceptable for two grounds. First ground is that Markose Abraham cannot be said to be eligible certifier to issue PKC as per the Central Scheme as he has not suffered the requisite imprisonment period for not less than 2 years without any remission and that even going by the certificate, the certifier has suffered jail suffering only for about 10 months for the period from 4.12.1946 to 22.9.1947. The second ground is that even according to the certifier, he was in jail for the period from 4.12.1946 to 22.9.1947 and therefore, he does not have the**
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**W.P(C).No.20458 Of 2016**
**requisite source of personal knowledge to certify that the claimant had remained underground for the period from 8.9.1946 to 9.9.1947 as the period of jail suffering of the certifier partially coincides with the period during which the claimant had remained underground. As regards the first ground, it is to be noted in para 14 of the judgment dated 1.3.2016 in** _**Union of India v.Subhadra**_ **, in W.A.No.2538/2015, reported in 2016 (2) KLT 1, it has been held that for a person to be eligible to issue a PKC under the Central Scheme, he should have suffered imprisonment for the requisite 2 year period without any remission. In the instant case, the certifier has not suffered imprisonment for the requisite 2 year period even going by the details given in the PKC and so the first objection is sustainable. Further the Apex Court in the judgment in** _**Mahender Singh v. Union of India**_ **, reported in (2010) 12 SCC 675, has held that the**
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**W.P(C).No.20458 Of 2016**
**if the certifier of the PKC was actually in jail for most of the claimed underground suffering of the claimant, then such certificate is not acceptable as it is not possible for the certifier to certify the period of underground suffering of a claimant at the time when the certifier himself was in jail. In the light of these aspects, the second ground raised by the 1[st] respondent-Union Government objecting to the acceptability of the PKC on the ground that the certifier was not competent to issue such a certificate as he himself was in jail for substantial part of claimed period of underground suffering of the claimant is tenable. In the light of these aspects, the stand taken by the 1[st] respondent-Union Government that the claimant has not been able to successfully prove his underground suffering on the basis of acceptable secondary evidentiary criteria cannot be said to be illegal or unreasonable.**
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**W.P(C).No.20458 Of 2016**
**8. Since the original writ petitioner has not been able to substantiate his claim as per the Central Scheme, it is only to be held that the claim of the additional petitioner for the grant of freedom fighter's dependent pension under the Central Scheme also cannot be said to have been duly established. Hence there are no grounds for interference in this case and accordingly, the Writ Petition will stand dismissed.**
## **Sd/-**
**ALEXANDER THOMAS, Judge.**
bkn/-
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**P1 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DT. 15/10/98 P2 TRUE COPY OF THE LETTER FROM 3RD RESPONDENT TO THE 2ND RESPONDENT DT. 11/5/02 (J3-52237/01) P3 TRUE COPY OF THE PROCEEDINGS OF THE MEETING OF THE FREEDOM FIGHTERS**
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## **W.P(C).No.20458 Of 2016**
||**DISTRICT ADVISORY COMMITTEE DT.**|
|---|---|
||**6/5/02 HELD ON 2/5/102**|
|**P4**|**TRUE COPY OF THE APPLICATION IN CC**|
||**59/1122 DT 25/5/88 AND ITS REPLY**|
|**P5**|**TRUE COPY OF THE LETTER DT. 10/12/13**|
||**ISSUED BY THE 2ND RESPONDENT TO THE**|
||**1ST RESPONDENT RECOMMENDING THE**|
||**APPLICATION OF THE WRIT PETITIONER FOR**|
||**SSS PENSION BY ISSUING NARC (CLAIM IS**|
||**VERIFIED FROM ALL THE AGENCIES WHICH**|
||**ARE CONCERNED WITH THE MATTER)**|
|**P6**|**TRUE COPY OF THE ORDER/COMMUNICATION**|
||**DT. 22/4/14 ISSUED BY THE 1ST**|
||**RESPONDENT REJECTING THE APPLICATION**|
||**OF THE PETITIONER FOR SSS PENSION**|
|**P7**|**TRUE COPY OF THE COMMUNICATION NO.**|
||**119/GEN/58/2014 FE(SZ)/ 653332/P**|
||**RECEIVED BY MR. JAYADEEVAN FROM MR.**|
||**KIREN RUJIJU, MINISTER OF STATE FOR**|
||**HIME AFFAIRS, GOVERNMENT OF INDIA DT.**|
||**30/11/15**|
