Union of India v. Jan W/o Late K.K. Thankappan and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934** **WA.No. 314 of 2011 ( ) IN WPC/36477/2008** **----------------------------------------AGAINST THE JUDGMENT IN WPC.36477/2008 DATED 16-02-2010** **APPELLANT/1ST RESPONDENT IN WP(C): ----------------------------------------------------------** **UNION OF INDIA REP.BY SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.** **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** ## **RESPONDENTS/PETITIONER & 2ND RESPONDENT:** **-------------------------------------------------------------------------** **1. JANU W/O LATE K.K.THANKAPPAN, AGED 71 YEARS, KUTTARATHIL HOUSE, UZHUVA VAYALAR EAST, KALAVAMKODAM P.O., CHERTHALA-688536.** **2. THE STATE OF KERALA REP.BY PRINCIPAL SECRETARY, GENERAL ADMINISTRATION DEPT. TRIVANDRUM.** **R1 BY ADV. SRI.J.OM PRAKASH R2 BY GOVERNMENT PLEADER, SRI. P.I. DAVIS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2012, ALONG WITH WA 913/2011 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J.** *** * * * * * * * * * * * *** W.A.Nos.314 of 2011, 913 of 2011, 1905 of 2011, 47 of 2012, 154 of 2012, 558 of 2012, 977 of 2012, 1040 of 2012, W.P.C.Nos.21669 of 2007, 35150 of 2007, 35280 of 2007, 1430 of 2008, 4902 of 2008, 8945 of 2008, 24082 of 2008, 35865 of 2008, 7083 of 2010, 8623 of 2010, 12234 of 2010, 18646 of 2010, 27267 of 2010, 29760 of 2010, 30293 of 2010, 33357 of 2010. ---------------------------------------- Dated this the 22[nd] day of June 2012 ## **J U D G M E N T** ## **MANJULA CHELLUR,Ag.CJ** In all these cases the relevant documents relied on by the applicants claiming central pension that is Swatantrata Sainik Samman Pension (SSS Pension) are based on secondary evidence. This Bench, on an earlier occasion in a batch of cases in W.A.No.382/2010 dated 13/02/2012, has already taken a view that in the case of secondary evidence apart from production of Co-Prisoners' Certificate or Personal Knowledge Certificate depending upon the nature of suffering that is confinement or underground, the State has to issue Non-Availability of Record Certificate (NARC) while sending Verification Cum Entitlement to Pension Certificate. W.A.314 of 2011 & conn.cases 2 2. It is well settled now though the State Government positively recommends the case of the applicant, ultimately the authority considering the application at the Centre can reject the application and vice versa. In some of the cases, reliance is placed on honour of 'Thamra Pathra' conferred way back in 1972 on some of the freedom fighters. The question is whether honour of having a 'Thamra Pathra' would automatically entitle the applicant to get central pension. Similarly if the State pension is already granted, would it be a ground to secure SSS pension without any other consideration. 3. In the batch of cases, this Division Bench discussed in detail the conditions to be complied with for the award of central pension that is Co-Prisoners Certificate or Personal Knowledge Certificate apart from NARC. Sanction of SSS pension depends upon participation of the freedom fighter in a particular struggle either as a confinement or an underground suffering. This alone will entitle him to get pension or if period of confinement or underground suffering is satisfactorily completed as indicated in the Scheme. Therefore the argument of learned counsel appearing for the applicants/writ petitioners that prima facie, a W.A.314 of 2011 & conn.cases 3 holder of 'Thamra Pathra' or his dependents, as the case may be, have to automatically get SSS pension, cannot be accepted. If that were to be a criterion for awarding central pension, there is no need for introduction of a scheme by the Centre and the scheme contemplates certain conditions to be fulfilled. Therefore, irrespective of holding a 'Thamra Pathra' or having sanction of State pension no one is entitled to get SSS pension. It depends upon the availability of the documents as contemplated in the Scheme. In the light of the Scheme being formulated for granting SSS pension irrespective of enjoying the State pension or holding a 'Thamra Pathra' will not be of any assistance except that it could be one more document to be considered while scrutinizing the papers by the State machinery or sanctioning authority at the Centre. To confer honour of 'Thamra Pathra', no conditions like primary evidence, secondary evidence or NARC were contemplated. Therefore, the criterion to get central pension is compliance of the conditions contemplated in the Scheme formulated for awarding SSS pension irrespective of having the sanction of State pension and 'Thamra Pathra'. In that view of the matter, unless the W.A.314 of 2011 & conn.cases 4 conditions laid down in the Scheme are complied with, no person will be entitled for pension under SSS Pension Scheme of 1980. 4. On an earlier occasion, a Division Bench of this Court in the reported case **Sankunny K.N. v. Union of India and another** [2011(3)KHC 692 (DB)] at Paragraph 6 referred as under as far as 'Thamra Pathra' is concerned: “The learned Central Government Counsel submits that Ext.P1 Jail Certificate was issued only in the year 2008 and the claim of the petitioner could not have been considered with regard to the said certificate. It is brought to our notice that the State Government, while issuing Ext.R2(b) dated 27/8/2008, has forwarded the representation dated 19/05/2008 preferred by the appellant along with the enclosures (in original) and also the report of the District Collector, Alappuzha for appropriate action by the authorities of the Central Government, who deal with the Central Pension. The learned Central Government Counsel submits that the said representation dated 19/5/2008 could be considered and appropriate orders will be passed, taking positive look and a lenient view, particularly in the light of Ext.P3 'Thamra Pathra' presented by the then Prime W.A.314 of 2011 & conn.cases 5 Minister on 15/8/1972, reckoning the significant contribution made by the appellant, to the nation, in the struggle for Independence. 5. Reading of Paragraph 6, it does not lead to any conclusion that holder of a 'Thamra Pathra' will automatically be entitled for pension by the Center. It only says while considering the application, 'Thamra Pathra' honour presented by the Prime Minister shall also be taken into consideration. As a matter of fact, it is not the opinion of the Court that is reflected at Paragraph 6. It was the submission of learned Central Government Counsel that is referred to at Paragraph 6 wherein the Central Government Pleader said that a positive look and a lenient view shall be taken, particularly in the light of Ext.P3 'Thamra Pathra'. This is, however, subject to positive Verification-Cum-Entitlement to Pension Report. 6. Admittedly, the judgment of the Division Bench was challenged before the Apex Court in a Special Leave Petition and the same came to be dismissed. Our opinion, as stated above, does not run contrary to Paragraph 6 of the Division Bench judgment. On the other hand, we have clarified what exactly the consideration has to be whenever honour of 'Thamra Pathra' W.A.314 of 2011 & conn.cases 6 comes up for consideration. Needless to say, in cases where NARC, in accordance with the scheme, is already issued, there is no room for fresh consideration of the matter by the State Government. Wherever NARC is not available, as per the Scheme, they have to insist on NARC in all such cases. The Central Government may take suitable action within a period of three months from the date of receipt of a copy of this judgment. We also make it clear that the State authority or the Centre, while considering the applications for pension, shall not be persuaded or influenced by earlier opinion of the authorities, if any, and they have to consider the applications afresh by going through the materials placed before them as per the Scheme. (sd/-) **(MANJULA CHELLUR, ACTING CHIEF JUSTICE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr 23/06/2012 //True Copy// PA to Judge W.A.314 of 2011 & conn.cases 7 W.A.314 of 2011 & conn.cases 8 W.A.314 of 2011 & conn.cases 9