Union of India v. PV Yesoda Amma & Others (WA No.1688/2019)

## **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 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** **WA.No.1688 OF 2019** **AGAINST JUDGMENT DATED 24.07.2018 IN WP(C) NO.22751/2015(T) OF HIGH COURT OF KERALA** ## **APPELLANT/1ST RESPONDENT:** **UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, 2ND FLOOR, NDCC-II BUILDING, PARLIAMENT STREET, NEW DELHI-110003.** **BY ADVS. SMT.SREEKALA K.L., CGC SRI.P.VIJAYAKUMAR** ## **RESPONDENTS/PETITIONER/RESPONDENTS 2 TO 5:** **1 P.V.YESODA AMMA, W/O.T.KRISHNAN NAMBIAR, PULLAMNGOIDEN HOUSE, POST MAMBA- 670611, KANNUR DISTRICT, KERALA. 2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001. 3 COMMANDANT, MALABAR SPECIAL POLICE (MSP), OFFICE OF THE COMMANDANT, M.S.P., MALAPPURAM.** - **4 THE DISTRICT COLLECTOR, KANNUR DISTRICT, KANNUR. 5 THE TAHSILDAR, TALUK OFFICE, KANNUR. R1 BY ADV. SRI.N.JAMES KOSHY R2 TO R5 BY SR.GOVERNMENT PLEADER MR. ARAVINDA KUMAR BABU** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No.1688/2019 2 ## **JUDGMENT** Dated this the 10[th] day of February, 2020 ## S. Manikumar, CJ Instant writ appeal is filed against judgment dated 24.07.2018 in W.P. (C) No.22751 of 2015, by which the writ court ordered thus: “11. Sri.N.James Koshy, learned counsel for the petitioner submits that in a case like this, the petitioner is entitled to get pension and its arrears from the date of application, ie., 30.6.2006. This Court is not making any final pronouncement on that aspect of the matter and would only direct that the petitioner should be granted pension and it is to be ordered at least from 1.12.2014 (date of issuance of Ext.P-9). The pension and the above said arrears shall be disbursed to the petitioner within a period of 2 months from the date of production of a certified copy of this judgment. Thereafter, the competent authority of the 1[st] respondent-Union Government should consider as to whether the petitioner could be given arrears of pension from the date of her application (viz, 30.6.2006) onwards and if a decision is so taken by the 1st respondentUnion Government should be duly communicated to the petitioner within 2 months thereafter. If the decision in that regard is in favour of the petitioner, then further arrears of pension should also be disbursed to the petitioner in that regard. If the decision in that regard is against the petitioner, she will be at liberty to work out her remedies in accordance with law. W.A. No.1688/2019 3 The Registry will forward a certified copy of this judgment to the 1[st] respondent-Union Government by registered speed post at the cost of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.” 2. Shorts facts leading to the appeal are that,- husband of the writ petitioner/1[st] respondent, Sri.T.Krishnan Nambiar, was employed as a Police Constable in the services of Malabar Special Police (MSP) (respondent No.3) as EAF PC No.1361. In 1946, he participated in the MSP Mutiny, which was organized as an expression of solidarity of the participants in the said Mutiny with the National Freedom Struggle Movement. Consequently, about 645 MSP personnel were dismissed from service vide proceedings dated 18.05.1946 issued by the competent authority of MSP. Thereafter, he was never employed in the service of the Union Government or State Government, or in any local authority, or any other employer. 3. On account of his participation in MSP Mutiny, writ petitioner’s husband was granted freedom fighters' pension under the State Pension Scheme (Kerala Freedom Fighters Pension Scheme). As per G.O.(Ms) No.192/74/PD dated 21.8.1974 (Exhibit-P1), State Government ordered that mutineers, who had participated in the MSP Mutiny in 1946 and who lost their jobs on account of such participation, are eligible for the grant of freedom W.A. No.1688/2019 4 fighters' pension under the State Scheme. Pursuant thereto, writ petitioner’s husband was granted the benefit of freedom fighters' pension under the State Scheme vide Exhibit-P8 pension payment order 31.03.1991. 4. Exhibit-P2 is the copy of Central (SSS) Pension Scheme, 1980, notified on 15.08.1981, in supersession of the earlier Central Scheme. Clause 3(f) of the explanation appended to Exhibit-P2 scheme provides that, “a person, who lost his job (Central or State Government) and thus means of livelihood for participation in National Movement, is also eligible for grant of pension under the Central Scheme”. The petitioner has contended that there was lack of clarity as to whether participation in the MSP Mutiny would amount to participation in the national freedom movement. Thereafter, Union Government in the Ministry of Home Affairs issued proceedings dated 20.01.1998 (Exhibit-P3), wherein it has been ordered that participants for the six enumerated movements mentioned therein would also be eligible for grant of pension under the Central Scheme. 5. Clause (f) speaks about movements like Malabar Special Police Strike (MSP Strike). In Exhibit-P3, it has been ordered that Union of India has recognized the above said six movements, which had taken place in the State of Kerala during freedom struggle, for the purpose of granting pension under the Central Scheme, i.e. from the date of issue of that order, viz., 20.01.1998. W.A. No.1688/2019 5 Thereafter, writ petitioner/1[st] respondent had submitted an application for grant of pension under the Central Scheme in the year 2006. Exhibit-P4 is the certificate dated 16.06.2005 issued by the Commandant of Malabar Special Police, respondent No.2, wherein it has been certified that writ petitioner’s husband was discharged from MSP w.e.f 16.4.1946 as per D.O.No.449/46 dated 18.5.1946. The main heading was noted as “Dismissal” and sub heading “Disbanded”. 6. District Collector, Kannur (respondent No.4), has sent a report dated 22.11.2006 (Exhibit-P5), stating that writ petitioner’s husband was dismissed from MSP service in the year 1946, on account of his participation in MSP Mutiny and thereafter, he was not employed either in the services of Central, State, or local authorities or District Boards or any other employer, etc. and further stated that, the claimant and his widow are getting freedom fighters' pension under the State Scheme. The State Government issued a letter of recommendation dated 14.02.2007 (Exhibit-P6), whereby the case of the writ petitioner for grant of pension under the Central Scheme was positively recommended by the State Government to the Union Government. In spite of the positive recommendation issued by the State Government, no further action was forthcoming from the part of the Union Government. 7. Writ petitioner/1[st] respondent again approached the authorities W.A. No.1688/2019 6 concerned, which led the District Collector to forward Exhibit-P7 letter dated 1.3.2014 to the State Government. Thereafter, the State Government as per the letter No.90248/FFPA1/13/GAD issued a verification and entitlement report entitling the writ petitioner for grant of pension under the Central Scheme. In spite of this, Union Government has rejected the writ petitioner's claim under the Central Scheme as per order dated 01.12.2014 (Exhibit-P9). It was thus challenging Exhibit-P9 proceedings, W.P.(C) No.22751 of 2015 was filed for the following reliefs: - “i) Issue a writ of certiorari or other appropriate writ, order or direction to quash Exhibit-P9 order issued by the appellant/1[st] respondent therein; - ii) Issue a writ of mandamus or any other appropriate Writ, order or direction, directing the Union of India to grant "SWATANTRATA SAINIK SAMMAN PENSION" to the writ petitioner on the basis of Swatantrata Sainik Samman Pension Scheme, 1980 (Exhibit-P2) forthwith; - iii) Issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing the respondents 2 and 3 to report further details, if any, required to the Union of India for the grant of SSS Pension to the writ petitioner immediately; - iv) Issue a writ of mandamus or any other appropriate writ, order or direction directing Union of India, 1[st] respondent therein, to grant to the writ petitioner, SSS Pension and arrears of pension payable with effect from 30.06.2006 on the basis of Exhibit-P2 scheme;” W.A. No.1688/2019 7 8. Before the writ court, Under Secretary, Ministry of Home Affairs, Freedom Fighter's Division, New Delhi, 1[st] respondent/appellant, has filed a counter affidavit contending that,- the claims for grant of Samman Pension can be considered by the Central Government only when they are duly verified and recommended by the State Government/U.T.Administrations concerned and the basis of such recommendation should be in accordance with the provisions of the Scheme. He further contended that no action is, therefore, possible on the applications sent directly to the Central Government without routing through the State Government/U.T.Administration concerned. As per the provisions of the Scheme, verification and recommendation report is mandatory in view of the fact that documents and other evidences of the claims are in possession of the State Governments/U.T. Administrations and not of the Central Government. Verification-cum-entitlement to pension report of State Government is a mandatory requirement to grant central pension. 9. The appellant has further contended that MSP Strike, 1946 was approved in January, 1998 for grant of Samman pension under the SSS Pension Scheme, 1980. The personnel who took part in the strike were placed under four categories, namely 'resigned', 'dismissed', disbanded' and 'removed'. The list contained duplication in some of the cases. Most of the categories of personnel were issued certificates by the commandant, MSP or W.A. No.1688/2019 8 some other functionary, under the category of 'dismissed'. Those personnel started claiming Samman pension by submitting copies of the certificates without producing the original. However, the copies produced by them have been attested by a wide range of functionaries, like Assistant Public Prosecutors, Grade II to Medical Officers of PHCs and the certificates mostly pertain to 1980s. ## 10. According to the appellant, the eligibility criteria involved, based on which Samman pension is being claimed, is 'loss of job'. Therefore, the essential ingredients inherent in the claims are:- - That the loss of job [on account of 'resigned', 'dismissed', 'disbanded' and 'removed'] is due to participation in the freedom struggle [and not due to reasons of excess, administrative indiscipline, etc., unconnected with the freedom struggle]; - The basic primary evidence, i.e., the Commandant's Certificate, is duly verified to be genuine and authentic; and, - The State Government's mandatory recommendation is duly made. 11. Under Secretary, Ministry of Home Affairs, Freedom Fighter's Division has further contended that granting of pension to the personnel included in the 'disbanded' category was examined in the Ministry and it was decided to grant pension to the personnel, provided it is confirmed by State Government that the disbanding was due to participation in the freedom W.A. No.1688/2019 9 struggle and not due to reasons of excess, etc. This decision was conveyed to the State Government on 26.05.2005. The Commandant's report and the basis on which the Commandant is submitting his report, have to be appropriately examined by the State Government, and the State Government, after satisfying itself of the same, have to unequivocally verify the genuineness or otherwise of the Commandant's Certificate. The Commandant is a State Government functionary and the relevant records are records of the State Government. Therefore, appropriate enquiry, if and as necessitated, and an unequivocal verification of the genuineness or otherwise, are required to be ensured by the State Government. As per the provisions of the Swatantrata Sainik Samman Pension Scheme, 1980, State Government is required to give its categorical, speaking recommendation apropos the claim (for or against). 12. State Government was, therefore, instructed again vide Ministry's letters dated 5.8.2005 and 20.9.2005, that in all cases, whether in normal course or in compliance of court orders/judgments, State Government, while submitting its report, may inter alia, (i) Unequivocally verify the genuineness (or otherwise) of the Commandant's Certificate; and (ii) Give its categorical, speaking recommendation (for or against) 13. Accordingly, on receipt of the claim application along with supporting documents in respect of the writ petitioner from the State W.A. No.1688/2019 10 Government vide its letter No.90248/FFP-A1/2013/GAD dated 29.09.2014, the case of the petitioner was examined on merits, as per law, and having not found acceptable, rejected vide order dated 01.12.2014 (Exhibit-P9), since, neither the State Government nor the writ petitioner has stated the exact employment status of Late Sri.T.Krishnan Nambiar immediately after his dismissal from Malabar Special Police. However, it has been declared vide the said order that in future, if the Government of Kerala submits documentary proof of his unemployment and related issues, the claim would be reconsidered on merits. Thereafter, the writ petitioner or the State Government has not responded. However, the averments in paragraph 3 of the writ petition are admitted to the extent that dependent family pension under the SSS Pension Scheme, 1980 can be availed by the eligible dependents only if pension has been sanctioned to the deceased freedom fighter during his life time. Revised policy guidelines for disbursement of Central Samman Pension, issued vide Communication No.45/3/2014-FF(P) dated 06.08.2014 read as follows: ## “para 1.5 **. Sanction of pension after the death of** **Freedom Fighter** .- No pension shall be sanctioned in the name of the freedom fighter after his/her death even if his/her matter was under examination. This also entails that no life time arrears or dependent pension shall be sanctioned to W.A. No.1688/2019 11 his/her spouse spouse/daughter after the death of the freedom fighter.” 14. The appellant has further contended that in the case on hand, petitioner's husband did not apply for SSS Pension during the lifetime. It is further contended that after the issuance of Exhibit-P9 order, neither the petitioner nor the State Government has approached the 1[st] respondent/appellant and the writ petitioner's claim has not been received in the Ministry before 2014 through the State Government and hence, could not be considered previously. According to the appellant, the grant of State Freedom Fighters' Pension by Government of Kerala does not ipso facto entitles a freedom fighter to Samman Pension under the Swatantrata Sainik Samman Pension Scheme, 1980 as the schemes operated by the State Government and the Central Government are two separate scheme, having different eligibility criteria and evidentiary requirements. A Hon'ble Division Bench of this Court vide judgment dated 18.02.2005 in W.A. No.1676/2003 held that the mere fact that the appellant therein was granted pension under the State Scheme does not make him eligible for pension under the Central Scheme. The terms and conditions for grant of pension under the Central Scheme are totally different from those which are prescribed for grant of pension under the State Scheme. Based on the above contentions, the 1[st] W.A. No.1688/2019 12 respondent/appellant prayed for disposal of the writ petition with a direction to the writ petitioner to submit the required documents through State Government enabling the respondent to reconsider her claim. 15. After considering the rival contentions and the materials on record, writ court, by the impugned judgment, disposed of the writ petition by observing that the writ petitioner is entitled to be granted freedom fighter's pension under the Central Scheme on account of her deceased husband's participation in the MSP mutiny in the year 1946. 16. Being aggrieved, instant writ appeal is filed basically contending that,- writ court ought to have considered the provisions of SSS Pension Scheme that the claims of Samman Pension can be considered by the Central Government only when they are duly verified and recommended by the State Government/UT Administrations concerned along with the basis of such recommendations in accordance with the provisions of the Scheme; that the writ court has failed to appreciate the grounds and the stand taken by the appellant in their counter affidavit that the claim of the writ petitioner shall be reviewed by the Ministry on its merits, as and when the evidentiary documents indicating the unemployment status of the petitioner's late husband is received after due verification by the State Government; that the writ court has wrongly considered and relied on the certificate dated W.A. No.1688/2019 13 13.07.2015 issued by the Tahsildar, Kannur and issued directions to the respondent for granting pension, whereas, as per the provisions of the Scheme, concerned State Government has to submit their recommendations to the Central Government to examine such cases and decide on their merits. 17. It is further contended that appellant can grant Samman Pension only on favourable receipt of recommendation from the State Government. A Hon'ble Division Bench of the Madras High Court in W.P. No.7707 of 2000 (C.Santhanam v. State of Tamil Nadu and Others) held that “admittedly, there are two distinct schemes, and one can be eligible to get pension on fulfilling the conditions prescribed in each scheme. Petitioner can be entitled for Central Government pension, only on satisfying the facts which are required as per the scheme”. This fact was upheld by a Hon'ble Division Bench of this Court vide judgment dated 18.02.2005 in W.A. No.1676 of 2003 (against judgment dated 19.06.2003 in OP No.1366/2001) Sri.K.Gopinathan Pillai v. Union of India and Others, wherein it was held that “the mere fact that appellant was granted pension under the State Scheme does not make him eligible for pension under the Central Scheme. The terms and conditions for grant of pension under the Central Scheme are totally different from those which are prescribed for grant of pension under the Scheme”. W.A. No.1688/2019 14 18. It is also contended that Central Government has to scrutinize the application and the documents independently, to decide the entitlement of an applicant. Because the spirit of the scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made by the freedom fighter, it would be contrary to its spirit, to convert it into some kind of a measure of compensation. Further contention has been made that SSS Pension Scheme is a scheme introduced by the Government of India and not a statute/Act, as such the decisions related to the same shall be at the instance of Government of India and pension cannot be claimed as a matter of right contrary to the policy provided as such fundamental rights are not involved in the said scheme. 19. On the above grounds, learned Central Government Counsel made submissions. Heard learned counsel for the parties and perused the material available on record. 20. Exhibit-P1 order dated 21.08.1974 issued by the Deputy Secretary, Government of Kerala is extracted hereunder: ## “GOVERNMENT OF KERALA ## Abstract Kerala Freedom Fighters Pension Scheme - M S P Strike in 1946 treated as part of Freedom Movement and participants in the Stike declared eligible for Pension to Freedom Fighters - Last date for receipt of application fixed-Orders issued. ---------------------------------------------------------------------------------- W.A. No.1688/2019 15 PUBLIC (FREEDOM FIGHTERS PENSION) DEPARTMENT G.O.(Ms.) 192/74/PD. Dated, Trivandrum, 21.08.1974 Read:- 1. G.O.(P) 143/71/PD dated 22.5.1971 2. G.O.(P) 285/73/PD dated 30.10.1973. 3. Representation dated 9.5.1972 from the Kerala Ex. ## **ORDER** In the G.O. first cited, Government had sanctioned a Scheme for grant of pension to freedom fighters subject to the rules prescribed in Annexure I thereto. In the G.O. 2[nd] cited the last date for receipt of applications by the District Collectors under the Scheme was fixed as 1.11.1973. The request of the Ex.M S P Association, Badagara to give the Ex.M S P personnel who were in the strike in 1946, the status of these freedom fighters and also the question of granting them pension under the Kerala Freedom Fighters Pension Scheme have been under the consideration of Government for some time. The Cochin Police Strike of 1942 has already been recognized by both the State and Central Governments as a movement for the independence of the country and the participants there of have been sanctioned pension to freedom fighters. 2. Government have examined in detail the request of the Ex. M S P Association and have now decided to treat the M.S.P Strike as a part of the Freedom Struggle. Government are, therefore, pleased to order that those who had participated in the agitation of the M.S.P personnel in 1946 will be included in the category of Freedom Fighters eligible for the pension under the State Scheme. They will be granted the pension provided they satisfy the conditions of eligibility laid down in the Scheme. W.A. No.1688/2019 16 3. In partial modification of the orders contained in the G.O 2[nd] cited, Government are pleased to fix 30.9.1974 as the last date for receipt of applications by the District Collectors from the Ex. M S P personnel/their dependents, for grant of pension under the Kerala Freedom Fighters Pension Scheme. This extension of time upto 30.9.1974 will be applicable only to the Ex. M S P personnel/their dependents, since the question of their eligibility for pension to freedom fighters remained in doubt until after the last date fixed earlier was over. (By Order of the Governor) Sd/V.K.Kuttan Deputy Secretary” 21. Exhibit-P2 Swatantrata Sainik Samman Pension Scheme, 1980, formerly known as Freedom Fighters' Pension Scheme, 1972 reads thus: “INTRODUCTION During Twenty-fifth anniversary (Silver Jubilee year) of Independence a Central Scheme for the grant of pension to freedom fighters and their families from Central Revenues was introduced by the Government of India. The Scheme commenced from 15[th] August, 1972 and provided for the grant of pension to living freedom fighters and their families; if they are no more alive, and to the families or martyrs. The minimum quantum of pension sanctioned to a freedom fighter by Rs.200/- p.m. and in case of families varied from Rs.100/- to Rs.200/- in accordance with the size and number of eligible dependents in the family. Till 31[st] July, 1980 the Freedom fighters pension was admissible only to those who were in need of financial assistance on account of their meager annual gross income. Thus an annual income ceiling of W.A. No.1688/2019 17 Rs.5000/- was enforced for eligibility to pension. From 1.8.1980, the benefit of the pension scheme has been extended to all freedom fighters as a token of SAMMAN to them. ## 2. ENHANCED RATE OF PENSION: Note only the income ceiling has been removed from 1st August, 1980 but quantum of monthly pension has also been raised. The monthly pension has thus been increased from Rs.200/to Rs.300/- in case of living freedom fighters and from Rs.100/- to Rs.200/- to the widow of the late freedom fighter with additional Rs.50 p.m. each for unmarried daughter upto a maximum limit of Rs.300/- per month. ## 3. WHO ARE ELIGIBLE DEPENDENTS: For the purpose of grant of Samman pension, family includes (if the freedom fighter is not alive) mother, father, widower/widow if he/she has not since remarried, unmarried daughters. Not more than one eligible dependent can be granted pension and in the event of availability of more than one dependent the sequence of eligibility will be widow/widower, unmarried daughters, mother and father. ## 4. WHO IS ELIGIBLE? For the purpose of grant of Samman pension under the scheme, a freedom fighter is:- (a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex- INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. The minimum period of actual imprisonment for eligibility of pension has W.A. No.1688/2019 18 been reduced to three months, in case of women and SC/ST freedom fighters from 01.08.1980. ## EXPLANATION 1. Detention under the orders of the competent authority will be considered as imprisonment. 2. Period of normal remission upto one month will be treated as part of actual imprisonment. 3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered. 4. Broken period of imprisonment will be totalled up for computing the qualifying period. (b) A person who remained underground for more than six months provided he was: 1. a proclaimed offender; or 2. one on whom an award for arrest/head was announced; or 3. one for whose detention order was issued but not served. (c) A person interned in his home or externed from his district provided the period of internment/externment was six months or more. (d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle. (e) A person who became permanently incapacitated during firing or lathi charge. (f) A person who lost his job (Central or State Government) and thus means of livelihood for participation in national movement. A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British. W.A. No.1688/2019 19 ## WHAT ARE THE MOVEMENTS/MUTINIES CONNECTED WITH NATIONAL FREEDOM STRUGGLE 5. Apart from the mainstream of the liberation struggle the movements/mutinies which were directed against the British (French in case of Pondicherry and Portuguese in case of Goa) with freedom of the country as its ultimate goal are also treated as part of National Freedom Struggle for the purpose of grant of pension unless any movement(s) is specifically decided as not qualifying for the grant of Samman pension. The Movements for merger of erstwhile Princely States within the Indian Union after 15[th] August, 1947 and the freedom struggle in the former French and Portuguese possession in India (Colonies) are considered as part of the National Freedom Movement for the purpose of grant of Samman Pension under Scheme. ## 6. HOW TO APPLY? Persons who consider themselves eligible for Samman Pension under the Scheme should apply in duplicate on the prescribed application form. One form duly filled and supported by required documents as proof of claim of suffering should be sent to the Chief Secretary to the State Government/Union Territory Administration concerned. The second copy should be sent to the Deputy Secretary to the Government of India, Freedom Fighters Division, Ministry of Home Affairs, First Floor, Lok Nayak Bhawan, New Delhi – 3 as an advance copy. ## 7. AVAILABILITY OF APPLICATION FORMS Application forms can be obtained from either of two officers, W.A. No.1688/2019 20 i.e., State Government/UT concerned or Freedom Fighters’ Division, Ministry of Home Affairs, 1st Floor, Lok Nayak Bhawan, New Delhi free of cost. All State governments/UT Administrations have been instructed to make available the prescribed application forms in sufficient number at all levels including Block / Tehsil level. ## 8. LAST PRESCRIBED DATE FOR SUBMITTING APPLICATIONS The last date for receipt of applications invited in 1972 was fixed as 31.03.1974. As a result of liberalization of pension scheme from 01.08.1980 to 31.07.1981 was given for filling applications for Samman pension. The persons who could not apply earlier due to any reason or who were not sanctioned pension even though they were eligible may submit their applications immediately but before 31st July, 1981. This date was extended. The receipt of applications has since been stopped after 31.03.1982. ## 9. HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents indicated below whichever is applicable:- ## (a) IMPRISONMENT/DETENTION ETC. Certificate from the concerned jail authorities, District Magistrates or the State Government in case of non-availability of such certificates co-prisoner certificates from a sitting MP or MLA or Ex-MP or ex-MLA specifying the jail period (Annexure-I in the application form.) ## (b) REMAINED UNDERGROUND: (i) Documentary evidence by way of Court’s/Government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention. W.A. No.1688/2019 21 (ii) Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their nonavailability. ## (c) INTERNMENT OR EXTERNMENT (i) Order of internment or externment or any other corroboratory documentary evidence. (ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. (Annexure II in the application.) Note:- The Certifier veteran freedom fighters in respect of underground suffering, internment/externment and the applicant should belong to the same administrative unit before the reorganization of States and their area of operation must be the same. ## (d) LOSS OF PROPERTY, JOB, ETC. Orders of confiscation and sale of property, Orders of dismissal or removal from service. ## 10. ISSUE OF SANCTION ORDER The receipt of advance copy of application form is acknowledged. The claim of the applicant will be scrutinized in the State Government/Union Territory administration in consultation with State Advisory Committee on the basis of copy of application submitted to them. After receipt of State verification and entitlement to pension report, the claim of the applicant is scrutinized and if found eligible Pension is granted. Sanctions are issued as applications are scrutinized and conveyed to the Accountant General of the areas with copies to the Chief Secretary W.A. No.1688/2019 22 of the State Government/UT Administration and the Collector/DC of the District concerned. Simultaneously, a communication conveying sanction of pension as also the amount of pension is issued to each grantee. Applicants whose applications are not approved are duly informed. ## 11. HOW TO RECEIVE PENSION (MODE OF PAYMENT) On receipt of sanction order, the Accountant General concerned will issue PPO authorizing the Treasury/Sub-Treasury officer concerned to make payment of the pension on production of identification documents which will consist of:- 1. Photograph. 2. Two prominent identification marks. 3. Specimen signature or left hand thumb and finger impressions duly attested by a competent authority, in the case of freedom fighters who are not literate enough to sign their names. 4. Date of birth. On furnishing these, the Treasury Officer/Sub-Treasury Officer will commence payment of pension. RULES PERMIT DRAWAL OF PENSION 1. Either in person from the Treasury or the Sub-Treasury, or 2. By Money Order:- - (a) at the cost of the Government if the amount of monthly pension does not exceed Rs.250/- - (b) on payment of money order commission if the amount of pension exceeds Rs. 250/-. 3. Through a banker if the grantee has opened an account with a bank. In such case, the pensioner shall have to prepare a bill every month, present it to his banker who will collect his pension from the W.A. No.1688/2019 23 Treasury or the Sub-Treasury on his behalf and credit it to his account. 4. With effect from 01.08.1980, facilities for drawal of pension through Public Sector Banks has been extended to freedom fighters pensioners. ## 12. DURATION Except in the case of unmarried daughters, the pension is for the lifetime of the recipient. In the case of unmarried daughters, pension ceases immediately after they are married or become otherwise independent. In the case of death of a pensioner his/her heirs though otherwise eligible for pension will not automatically succeed to such a pension. They shall have to apply afresh with proof of the pensioner and their applications will be considered in terms of the Pension Scheme. ## 22. Exhibit-P3 order dated 20.1.1998 issued by the appellant is extracted hereunder: “New Delhi, the Jan 20, 1998 To The Principal Secretary, Government of Kerala, General Administration (FFP.B) Department,' Thiruvananthapuram. Subject: Recognition of six regional movements taken place in Kerala during the freedom struggle for the purpose of grant of Samman Pension under the Swatantrate Sainik Samman Pension Scheme, 1980 - reg. Sir, I am directed to refer to the Chief Minister of Kerala's D.O.No.81623/FFP.A1/96/GAD dated 8[th] November, 1996 W.A. No.1688/2019 24 addressed to the Union Home Minister and the State Government's letter No.81623/FFP.A1/96/GAD dated 5/2/1997 and wireless massage dated 11/7/1997 on the subject mentioned above. The State Government of Kerala have sent a proposal for recognition of the following six movements taken place in Kerala during the freedom struggle for the purpose of grant of Samman Pension:- - (a) Punnapra-Vayalar Movement - (b) Kayyur Movement - (c) Kavumbai Movement - (d) Karivelloor Movement - (e) Morazha Movement - (f) Malabar Special Police Strike (MPS Strike) 2. The Central Government has considered the said proposal. The decision of the Central Government is hereby conveyed with the approval of the Cabinet, recognizsing the above said six movements taken place in Kerala during the freedom struggle for the purpose of grant of Samman Pension under the Swatantrata Sainik Samman Pension Scheme prospectively, i.e. from date of issue of this order. 3. In view of the above, State Government, are therefore, requested to inform their field agencies and applications submitted by the participants of the movements may be sent after verification of documents adduced in support of the claimed sufferings along with the specific recommendation of State Government about entitlement of pension or otherwise strictly in accordance with the provisions of Swatantrata Sainik Samman Pension Scheme, 1980. Yours faithfully, Sd/(SHISHIR JHA) DEPUTY SECRETARY TO THE GOVT. OF INDIA” W.A. No.1688/2019 25 23. Exhibit-P4 is the certificate dated 16.06.2005 issued by the Commandant, MSP, Malappuram (respondent No.3), recommending grant of SSS Pension to the 1[st] respondent. Said certificate is extracted hereunder: ## “ **CERTIFICATE** Certified that Sri.Krishnan Nambiar EAF PC 1361 of MSP was discharged from MSP with effect from 16-04-1946 as per DO No.449/46 dated 18.5.1946, the main heading which was noted as “Dismissal” and sub heading “Disbanded”. Sd/- Commandant, MSP” 24. Exhibit-P5 is the report of the District Collector, Kannur dated 22.11.2006 to the Principal Secretary to Government of Kerala and the same is extracted hereunder: “No.40477/04 The Principal Secretary, General Administration (FFPA) Thiruvananthapuram. Sub:- SSS Pension, application of P.V.Yesodamma Ref:- Government Letter No.49634/FFPAI/2006/GAC-Letter dated 7/7/06. As per the request referred above, conducted the enquiry and came to know that Late Krishnan Nambiar, husband of P.V.Yesodamma was not reinstated or employed in any Union, Local Self Government Institutions or any district board institutions. It is also came to know that after the death of her husband, P.V. Yesodamma is receiving State pension. Yours faithfully Secretary (General)” W.A. No.1688/2019 26 25. Based on Exhibit-P4 certificate and Exhibit-P5 report, State Government by letter dated 14.02.2007 (Exhibit-P6) has recommended to the appellant, to grant SSS Pension to the writ petitioner. Exhibit-P6 reads thus: “GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP A) DEPARTMENT No.49634/FFP-A1/2006/GAD Thiruvananthapuram Dated:14.2.2007. From The Additional chief Secretary to Govt. To The Secretary to Government of India, Ministry of Home Affairs, Lok Nayak Bhavan, Khan Market, New Delhi. Sir, Sub:- Swatantrata Sainik Samman Pension case of Smt.P.V. Yesoda Amma, W/o. late T. Krishnan Nambiar -reg. Ref: Swatantrata Sainik Samman Pension application of the petitioners dated 30.6.2006. The petitioner P.V. Yesoda Amma, W/o. late T.Krishnan Nambiar had submitted an application for Swatantrata Sainik Samman Pension on 30.6.2006 for her late husband's participation in MSP Strike in 1946. Shri T. Krishnan Nambiar belongs to 'Disbanded' category (P.C. No.1361). Government of India as per order dated 20.1.1998 recognised MSP Strike as freedom struggle for granting Swatantrata Sainik Samman Pension. District Collector, Kannur has reported that the petitioner's late husband Shri T.Krishnan had lost his job due to his participation in MSP Strike in 1946. He wasn't reemployed in Government, Semi- W.A. No.1688/2019 27 Government or local bodies and had not received any pay or allowances within two years of his loss of job in MSP. Based on the certificate of MSP Commandant, District Advisory Committee have also recommended the case for Swatantrata Sainik Samman Pension. No grounds are seen to doubt the genuineness of the Certificate of the Commandant, MSP. The MSP Commandant has also reported that Shri T. Krishnan Nambiar (EAF PC 1361) was not re-employed in MSP after his loss of job. No information regarding his re-appointment is seen received. In the above circumstances, a categorical speaking recommendation is hereby given as required by you contained in the relevant records based on the genuineness of Commandant's Certificate and re-employment status. Based on the above facts, the Swatantrata Sainik Samman Pension application of the pensioner is recommendable. The Swatantrata Sainik Samman Pension application (in original) together with the enclosures are forwarded herewith recommending the case for Swatantrata Sainik Samman Pension. THOMAS C. GEORGE ADDITIONAL CHIEF SECRETARY TO GOVT.” 26. After 9 years of submission of writ petitioner's application for pension, duly recommended by the authorities concerned, including State Government, appellant passed an order dated 1.12.2014 rejecting the claim of the writ petitioner under the Central Scheme. The main grounds on which the claim of the writ petitioner has been rejected are dealt with in para 8 of the abovesaid order and the same is reproduced: W.A. No.1688/2019 28 “8. On receipt of the said verification report dated 14.07.2007, the claim has been examined on the basis of documents on record, mandatory verification cum entitlement to pension report of the Government of Kerala and applicable provisions of the Scheme and it is found that the claim of the petitioner does not meet the eligibility criteria and evidentiary requirement, stipulated under the SSSP Scheme on the following grounds:- (i) The Government of Kerala has recommended the case for pension. But positive recommendation of the State Government is based on the Certificate issued by the Commandant MSP and report of the District Collector. In his letter no.A6-6109/2014/M dated 07-04-2014, the Commandant has, inter alia, stated as under:- _“By verifying the certificate No.A6-8478/2005/M Dated 16.05.2005, it is clear that the certificate is genuine. And the copy of the extract of D.O.No.449/46 dated 18.05.1946 is enclosed herewith in which the name and the General No. of the incumbent is denoted against Sl.No.25 in page No.7......”_ It is evident from the above that the Office of Commandant does not have sufficient documentary evidence (except D.O.No.449/46 dated 18.05.1946) to state unequivocally that Sri.Nambiar was dismissed from MSP due to his participation in the MSP Strike. He may have been dismissed for reasons other than the claimed participation in the MSP strike. Mere dismissal from the MSP does not lead to conclusive proof of his participation in the MSP Strike. W.A. No.1688/2019 29 (ii) The State Government has in para 3 of its letter No.49634/FFP A1/2006/GAD dated 14.02.2007 stated as under:- _“He was not reemployed in Government, SemiGovernment or local bodies and had not received any pay or allowances within two years of his loss of job in MSP.”_ Further in para 4 of the same letter dated 14.02.2007, it has been stated as follows:- _“No information regarding his reappointment is seen received.”_ Thus the State report in respect of employment status of Shri Nambiar, after his dismissal from MSP is contradictory and hence cannot be relied upon. (iii) On this matter, Para 3 of this Ministry's Circular No.58/74, issued from file No.8/1/74-ff(P) dated 6[th] June, 1974 reads as under:- _para 3_ . It has also been decided that the following categories of Freedom Fighters should not be made eligible for grant of pension:- (c) Persons who are dismissed/removed/resigned from service and later reinstated/reemployed and/or given benefits including arrears of pay and pension. (d) Persons whose property was confiscated or attached, but later restored to them. It is hard to believe that the petitioner's husband remained unemployed after his dismissal from MSP. If he was not gainfully employed, what was his source of livelihood. Government of Kerala has not clarified as to what type of office records has been maintained to certify that the petitioner's late husband remained W.A. No.1688/2019 30 unemployed for two year immediately after his dismissal. Even after two years if the petitioner's late husband got employed having pensionary benefits, it must have been passed on the petitioner rendering her ineligible for the benefits under the provisions of SSS Pension Scheme, 1980. xxx xxx xxx” 27. The Commandant, MSP, vide report dated 10.8.2000 (Exhibit-P13) addressed to the District Collector, Kozhikode, has stated that all 646 personnel recipients of the discharge certificates were participants of MSP Strike, and who were terminated due to participation in MSP Strike, lost their employment. Said report is extracted hereunder: “No.A6-8261/99 M Office of the Commandant Malabar Special Police, Malappuram, Dt. 10.8.2000 From The Commandant M S P, Malappuram To The District Collector, Kozhikode. Sir, Sub:- SSS Pension from Central revenues – MSP strike 1946 Clarification of furnishing of. Ref:- 1. Govt. Lr. No.41273/FFP. A2/2000/GAD dtd. 16.5.2000 to Dist. Collector, Kannur, copy......... 2. Lr. No.C3-32422/2000 dt. 29.6.2000 of Dist.Collector Thrissur. 3. Lr. No.M5.20364/2000 dt. 26.6.2000 of Dist.Collector Kozhikode. 4. Lr. No.C3.32572/2000 dt. 4.7.2000 of Dist.Collector Thrissur. 5. Lr. No.M5.23871/2000 dt. 26.6.2000 of Dist.Collector Kozhikode. W.A. No.1688/2019 31 With reference to the letters cited, I have to state the following. As per this office D.O. No.449/46 dtd.18.5.46 (Copy enclosed), 646 persons had left MSP. Details are as follows: Number dismissed – 193 Number removed from service - 5 Number disbanded/ discharged – 228 Number resigned - 220 -------Total - 646 ====== In this office order No.449/46 dtd. 18.5.46, it was ordered that “The following persons have left the MSP from the dates noted against them”. Later, there was a movement in 1957 for reinstating those personnel who lost employment as a result of MSP strike in 1946. In G.O(MS) 215/Home dtd. 4.3.1958 it was ordered that 50% of the vacancies arising in future in the Armed Reserve units including the MSP shall be reserved for re-employment of the Ex. MSP personnel below 40 years of age according to their service seniority subject to medical fitness.” In G.O(Rt) 826/59 PD dtd. 17.4.59, orders were issued for the appointment of those Ex-MSP personal who were above 40 years in suitable posts in the various departments as full time contingent employees. Subsequently, in the HO(MS) 695/59/Home dtd.26.9.59 orders were issued cancelling GO(MS) 215/Home dtd.4.3.1958, as certain practical difficulties in the implementation of that order were brought to the notice of Govt. by the Inspector General of Police. In the GO(MS) No.159/69 Home (SS) Department dated 14.5.1969, Govt. ordered that Ex-MSP personnel below 40 years W.A. No.1688/2019 32 of age who lost employment as a result of the MSP Strike in 1946 may be appointed in part-time contingent posts. In the light of the above GO, directions were given to all Heads of departments by Govt. in letter No.52141/A1/71/Home dated 18.2.1972 for the re-appointment of the above personnel suitable posts as and when vacancies of part-time contingent employees arise in their respective department. But no information regarding their reappointment in any department is seen received in the office. Later, in GO(MS) 192/74/PD dtd. 21.8.74, Govt. decided to treat the MSP strike as part of the Freedom Struggle and participants in the strike were declared eligible for pension under the Kerala Freedom Fighters' Pension Rules. In order to consider their eligibility for the grant of pension under the scheme by the respective Dist. Collectors discharge certificates to the effect that they had participated in the MSP Strike in 1946 and that their services were terminated due to such participation in MSP Strike, were being issued from 1974 onwards. A copy of the office District Order No.449/46 was sent to the Under Secretary to Govt., Government of India, Ministry of Home Affairs, Lok Nayak Bhavan, Khan Market, New Delhi as per this office letter No.A6-8261/99M dated 16.11.99 in response to his letter No.52/K/71/99-FF (S2) dtd. 5.11.99. A copy of the same and copy of the list of 645 MSP personnel who lost employment as a result of the MSP Strike in 1946 were sent to the Secretary to Govt. Govt. of Kerala, General Administration (FFPA) Department, Thiruvananthapuram, as per this office letter No.A6-8261/99 M dtd. 18.1.2000 in response to his letter No.110569/FFP-A2/99/GAD dtd.21.12.1999. In GO(MS) No.192/74/PD dtd. 21.8.74, it was to the participants of MSP Strike in 1946 (ie who lost employment due to W.A. No.1688/2019 33 participation in MSP Strike) FFP was sanction. But in all correspondence it is being shown them as “MSP personnel dismissed from service in 1946”, as they are the participants of MSP Strike in 1946 who lost their employment due to participation in MSP Strike. It was with this meaning, discharge certificates with the words “Dismissed due to participation in MSP Strike in 1946 were issued to the Ex-MSP personnel. All the personnel who are the recipients of the discharge certificates of the above model are participants of MSP Strike who were terminated due to participation in MSP Strike and they had lost their employment due to participation of MSP Strike. Yours faithfully, **==> picture [24 x 10] intentionally omitted <==** For Commandant, MSP.” 28. From the materials available on record, it can be deduced that State Government have verified all the attendant facts and circumstances in order to identify the role played by the petitioner's husband in the MSP Mutiny, and found that the writ petitioner's husband was entitled to secure State freedom fighters' pension. The report given by the District Collector on various occasions, based on the directions issued by the Secretary concerned of the State Government, would convincingly establish that the writ petitioner's husband was a police personnel in MSP, he was discharged, and the camp was disbanded on account of the Mutiny. Therefore, when the State Government have arrived at such conclusions, after conducting due enquiry, W.A. No.1688/2019 34 the appellant is not entitled to brush aside the same on flimsy reasons and baseless findings. It is also convincing and explicit that the petitioner has sufficient qualification as the widow of the freedom figher to secure central pension also. 29. The learned single Judge has taken into account the various pros and corns in the matter for entering into the finding that it was after due enquiry that the State Government have recommended the Central Government for granting pension to the writ petitioner on account of her husband's participation in the MSP strike, which was recognised as a part of the freedom struggle. The letters issued by the State Government to the Secretary, Government of India, Ministry of Home Affairs would make it amply clear that a detailed enquiry was conducted before recommending that the writ petitioner is entitled to get freedom fighters' pension on account of Malabar Special Police strike, which was recognised by the Central Government as one for the purpose of securing freedom and the persons, who have participated in the said attack, were treated as freedom fighters. We are also of the considered view that the State Government have undertaken a threadbare enquiry and arrived at the conclusion that the husband of the writ petitioner has participated in the National Freedom Struggle and Government of India is duty bound to take into consideration the W.A. No.1688/2019 35 reports submitted by the State Government in that regard. Though a detailed counter affidavit has been filed before the writ court, the appellant has not made out any established circumstances, so as to convince the writ court that the report submitted by the State Government before Government of India is, in any manner, incorrect, illegal or arbitrary, justifying interference. Furthermore, it is evident from the report of the State Government that it has arrived at the conclusion after evaluating all the factual circumstances and documents referred to therein. In the light of the above discussions, we have no hesitation to hold that appellant has not made out a case warranting interference of this Court in the appeal filed under Section 5 of the Kerala High Court Act, since the learned single Judge has exercised the discretion in accordance with law, for arriving at the conclusions. Appeal fails and accordingly, it is dismissed. No costs. Sd/- ## **S.MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P.CHALY JUDGE** krj