State of Kerala represented by the Secretary to Government, General Administration (FFB) Department, Government Secretariat, Thiruvananthapuram and The District Collector, Kozhikode v. V. Prabhakaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934** ## **WA.No. 1874 of 2010 ( )** **----------------------AGAINST THE JUDGMENT IN WPC.32334/2009 DATED 14-12-2009** **APPELLANT(S)/RESPONDENTS 1 AND 2 IN WPC.:** **----------------------------------------** **1. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT,GENERAL ADMINISTRATION(FFB) DEPARTMENT,GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR,KOZHIKODE.** **BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS** **RESPONDENT(S)/PETITIONER IN WPC.: ---------------------------------** **V.PRABHAKARAN NAIR C.H.COLONY, VELLIMADUKUNNU, PO MARYKUNNU, KOZHIKODE DISTRICT,PIN-673 017.** ## **BY ADV. SRI.C.P.MOHAMMED NIAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-09-2012 THE COURT ON 20-12-2012 DELIVERED THE FOLLOWING:** **MNS** ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1874 of 2010 ---------------------------------------- Dated this the 20[th] day of December 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** This appeal is filed by the respondents in W.P.C No.32334/2009. The respondent herein is the petitioner in the writ petition. 2. The writ petition came to be filed seeking pension under the Kerala Freedom Fighters Pension Scheme. Petitioner alleges that he was a freedom fighter and had to remain in exile for months together to evade arrest for having participated in the Quit India Movement. He applied for pension under the Kerala Freedom Fighters Pension Rules (hereinafter referred to as 'the Rules') along with certificates from prominent freedom fighters in order to prove that he had also participated in freedom struggle as official records were not available. The District Collector rejected his application vide Ext.P5 dated 21/01/2001. It is submitted that though he submitted another application, it was also rejected as per Ext.P6. W.A.No.1874/2010 2 3. Subsequently on the basis of Ext.P6, petitioner obtained certificates in the prescribed formats and submitted the same before the 1[st] respondent. Exts.P7 and P8 are the certificates. The claim of the petitioner was rejected by Ext.P10 for the reason that original records pertaining to the certifiers were not produced. Subsequent applications were also rejected on the same way. The petitioner therefore filed W.P.C.No.29651 of 2006 before this Court and by Ext.P15 judgment the Government was directed to consider the matter afresh which resulted in Ext.P16 order. Petitioner challenges Ext.P16 inter alia contending that as per the Rules there is no reason to reject the application especially when appropriate documents were produced which were not properly considered by the Government. 4. The learned Single Judge, found that the District Collector had, by Ext.P18 dated 04/08/2009, written to the Principal Secretary, General Administration (FFPB) Department stating that the documents as submitted by the petitioner are being forwarded for favourable action and it appears that the documents P8 and P9 made available along with the file were not W.A.No.1874/2010 3 considered while issuing Ext.P16 order. Under these circumstances, the learned Single Judge came to the conclusion that the petitioner had already demonstrated that he is entitled for the pension as sought for by him and therefore while quashing Ext.P16, the learned Single Judge directed pension to be paid at the earliest. 5. The learned Government Pleader while impugning the above judgment contended that in Ext.P16, it was clearly observed that sufficient documents in terms of Rule 23 were not produced and therefore in the absence of any evidence to show the alleged sufferings of the petitioner as per the Rules, the claim cannot be entertained. The learned Government Pleader also referred to Rule 23 which is extracted below: 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 showing the applicant's suffering in connection with the freedom struggle.” W.A.No.1874/2010 4 6. It is inter alia contended that, when the competent authorities have considered the matter as per the Rules, it was not open for this Court to take a different view especially in the light of the fact that documents as specified in Rule 23 is not admittedly submitted. 7. Heard the learned counsel for the respondent also who supported the view taken by the learned Single Judge and contends that the documents submitted by the petitioner was not considered while issuing Ext.P16. 8. The question to be considered in these cases is regarding the entitlement of the petitioner for the pension especially in view of Rule 23 of the Rules. It is clear from Rule 23 that, application submitted after 31/3/1994 will be considered only on obtaining the records mentioned in the said Rules. Admittedly, no such document had been produced. When there is a specific provision which prescribes the manner in which the pension has to be paid and the requirements of the documents in relation to the same, this Court cannot ignore such a provision and proceed to consider the factual materials and arrive at a conclusion. The manner of enquiry has been clearly indicated by W.A.No.1874/2010 5 the Supreme Court in **State of Orissa v. Choudhuri Nayak (D) Thr. L.Rs. and Ors.** (AIR 2010 SC 3588) wherein the Supreme Court held as under: “8. This Court in Mukund Lal Bhandari v. Union of India [1993 Supp. (3) SCC 2] : (AIR 1993 SC 2127 : 1993 AIR SCW 2508), Gurdial Singh v. Union of India [2001 (8) SCC 8] : (AIR 2001 SC 3883 : 2001 AIR SCW 3843) and State of M. P. v. Devkinandan Maheshwari [2003 (3) SCC 183] : (AIR 2003 SC 1136 : 2003 AIR SCW 680) considered the object of the Freedom Fighters Pension scheme and indicated what should be the approach of the authorities in dealing with the applications for pension under the scheme. We may summarize them as under : (i) The object of the scheme was to honour, and where necessary, to mitigate the sufferings of those who had struggled to achieve independence for the country. Many freedom fighters, even though they did not have sufficient income to maintain themselves, would even be reluctant to receive the Pension under the Scheme, as they would consider it as putting a price on their patriotism. The spirit of the Scheme being both to assist and honour the W.A.No.1874/2010 6 freedom fighters and acknowledge the valuable sacrifices made by them, the authorities should treat the applicants with respect and courtesy. The scheme should not be converted into some kind of routine scheme for payment of compensation. (ii) The persons intended to be covered by the Scheme are those who sacrificed and suffered for achieving the independence of the country, without expecting any reward for their sacrifice and sufferings. Therefore they can not be expected to maintain and produce perfect records or documents about their participation in the freedom struggle. (iii) Once the country has decided to honour freedom fighters by granting a pension, the approach of the authorities implementing the scheme should not be obstructionist or technical while examining the applications and documents produced, but be practical having regard to the fact that most of the applications are by old persons with no proper records. (iv) The criterion for pension under the scheme is not age, but participation in freedom struggle. The freedom fighters pension can, therefore, in exceptional cases, be granted even to those who W.A.No.1874/2010 7 were minors at the time of struggle, if evidence clearly showed that they had participated in the freedom struggle and fulfilled the requirements of the scheme. The above principles were spelled out to ensure that no genuine freedom fighter was denied pension under the scheme.” 9. The judgment of the Supreme Court has been relied upon by this Court while considering the question of grant of pension under the Central Scheme in **Union of India v. Lennyamma and others** [ILR 2012(3) Kerala 649]. This Court had clearly indicated in the said judgment that compliance of the Rules for the grant of pension has to be properly analysed by the sanctioning authority and the authority has to satisfy itself about the genuineness of the claim. 10. Taking into consideration the aforesaid facts, we do not think that the learned Single Judge was justified in considering the matter on merits when it is for the competent authority under the Rules especially the District Collector and the District Advisory Committee to satisfy itself about the eligibility of the petitioner to get pension. Such being the W.A.No.1874/2010 8 situation, we are of the opinion that the learned Single Judge was not justified in interfering with Ext.P16. In the said circumstances, this Writ Appeal is to be allowed setting aside the judgment of the learned Single Judge. However, we make it clear that the dismissal of the Writ petition will not preclude the petitioner from submitting a fresh application in terms with the Rules. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.A.No.1874/2010 9 W.A.No.1874/2010 10