Union of India v. Santamma Bhaskaran; Union of India v. AV Thampi (W.A. Nos. 675 of 2019 & 719 of 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 TUESDAY, THE 20TH DAY OF SEPTEMBER 2022 / 29TH BHADRA, 1944 WA NO. 675 OF 2019 [AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE IN WP(C) NO.19452/2013 DATED 09.07.2018] ## APPELLANT/1ST RESPONDENT: UNION OF INDIA, REPRESENTED BY ITS DEPUTY SECRETARY, MINISTRY OF HOME AFFAIRS, (FFR DIVISION), 2ND FLOOR, NDCC-2 BUILDING, PARLIAMENT STREET, NEW DELHI-110 003. BY ADV. SRI.JAISHANKAR V. NAIR, CGC ## RESPONDENT/WRIT PETITIONER: SANTHAMA BHASKARAN, W/O. LATE K.K. BHASKARAN, KALLOOCHIRAYIL, KALAVOOR P.O., ALAPPUZHA-688003. BY ADV. SRI. K. K. SATHEESH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2022, ALONG WITH WA.NO.719/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.As. 675 & 719 of 2019 -:2:- IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 20TH DAY OF SEPTEMBER, 2022 / 29TH BHADRA, 1944 ## WA NO. 719 OF 2019 [AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 11.07.2018 IN WP(C) 10064/2013] ## APPELLANT/RESPONDENT: UNION OF INDIA, REPRESENTED BY ITS DEPUTY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, (FFR DIVISION), 2ND FLOOR, NDCC-2 BUILDING, PARLIAMENT STREET, NEW DELHI-110 003. BY ADV. SRI. JAISHANKAR V. NAIR, CGC ## RESPONDENT/WRIT PETITIONER: A.V.THAMPI, ARYANPARAMBU, VATTAYAL WARD, THIRUVAMBADY P.O., ALAPPUZHA-688 002. BY ADV. SRI.K.K.SATHISH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2022, ALONG WITH WA.NO. 675/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.As. 675 & 719 of 2019 -:3:- ## **JUDGMENT** ## **S. MANIKUMAR, CJ** Instant writ appeals are filed by the Union of India, represented by Deputy Secretary to the Government, Ministry of Home Affairs, Freedom Fighter's Division, New Delhi, respondent in the writ petitions, challenging the judgments passed in W.P.(C) No.19452/2013 dated 9.7.2018 and W.P. (C) No.10064/2013 dated 1.7.2018 respectively. 2. By the impugned judgments, learned single Judge directed the appellant to grant Swatantrata Sainik Samman Pension (freedom fighter's pension), to the respective writ petitioners along with arrears thereon, within a time frame. ## 3. Relevant portions of the judgment impugned in W.A. No.675/2019 are extracted hereunder: “13. These claimants have been pursuing the matter for quite a long time and claimants have participated in the Punnapra Vayalar movement that took place in October, 1946. Long years have elapsed after the said historic event. Therefore, this Court is fully inclined to accept the reasonings rendered by this Court in the judgment dated 30.5.2018 in W.P.(C).No. 14070/2013 and would follow the said directions, which had allowed the claim on merits. It should also be borne in mind that the present generation is able to enjoy the oxygen of freedom and liberty only because of the sufferings of the freedom fighters, who took part in the historical struggle for making India free from colonial rule. Therefore, this Court is of the considered view that again making a remit W.As. 675 & 719 of 2019 -:4:- would be unjust and would unnecessarily prolong the matter. Therefore, going by the reasonings and the line of directions issued by this Court in W.P.(C).No. 10470/2013, it is ordered that the respective impugned orders in these three cases issued by the respondent Union Government authorities will stand set aside. It is further ordered and declared that the petitioners/ claimants concerned herein in these 3 cases are entitled for grant of Central SSS Pension in accordance with the Central scheme. The petitioner will be entitled for grant of pension and its arrears from the respective dates of issuance of the present rejection orders passed by the respondent Union Government, which have now been quashed. So the petitioners in W.P.(C).No.19452/2013, W.P. (C).No. 13863/2013 and W.P.(C).No. 2470/ 2014 will be entitled for grant of freedom fighters' pension and its arrears from 25.6.2013, 11.2.2013 and 15.1.2014 respectively. The pension and arrears of pension should be released to the respective petitioners concerned in these three cases within three months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petitions (Civil) stand finally disposed of.” ## 4. Relevant portions of the judgment impugned in W.A. No.719/2019 ## are extracted hereunder: “6. The learned Assistant Solicitor General has placed reliance on para 53 of Ext.P-10 judgment of the Division Bench of this Court and has contended that the respondentUnion Government authorities have the discretion to refuse to grant the pension under Central Scheme even if there is a positive letter of recommendation issued by the State Government, so long as it is satisfied about such aspects based on the requisite enquiry on facts. Therefore, it is contended by the learned Assistant Solicitor General that the issue as to the reliability of the contents of Ext.P-5 Personal Knowledge Certificate issued by Sri.T.F.Yohannan, is still open for consideration by the respondent Union Government and therefore, the reiteration of the said view in para 6 of Ext.P-13 rejection order cannot be faulted. True that the W.As. 675 & 719 of 2019 -:5:- Central Government has the discretion to refuse the grant of pension under the Central Scheme even if, there is a positive letter of recommendation by the State Government. But in a case like this, where the matter in issue was already judicially overruled by this Court, it cannot be open to the Union Government authorities to again reiterate a ground of rejection, which has already been overruled judicially by this Court and such findings have attained finality and conclusiveness. Even if, it is assumed otherwise, this Court is of the considered view that merely because the petitioner had come out of underground before the attainment of Independence, is no ground to disbelieve the version that he had remained underground, which fact has been certified by an eligible certifier in terms of the central scheme. In a case like this, where the claim is based on having remained underground, it is virtually impossible for the claimant to produce any direct evidence and therefore the only material on which he could place reliance would be a Personal Knowledge Certificate and therefore, following the very same reasoning given by this Court in para 3 of Ext.P-7 judgment, this Court would overrule the said objection raised on behalf of the respondent. 7. In the light of these aspects, this Court has no hesitation to hold that the impugned rejection order Ext.P-13 is illegal and improper and requires interdiction and the same will stand quashed. Accordingly, it is declared and ordered that the petitioner is eligible and entitled for the grant of the freedom fighters’ pension under the SSS Pension Scheme, 1980 and Freedom Fighters’ Pension and arrears of pension shall be disbursed to the petitioner by the competent authority of the respondent, with effect from the date of Ext.P-11 order (dated 28.09.2012) and the amounts in this regard shall be disbursed to the petitioner within 3 months from the date of production of the certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ” 5. W.P.(C) No.19452/2013 has been filed by the respondent in W.A. No.675/2019 seeking the following reliefs: W.As. 675 & 719 of 2019 -:6:- - “i) declare that the petitioner is entitled to get the benefit of “Swatantrata Sainik Samman Pension” (SSS Pension) due to her late husband. - ii) call for the records leading to the issue of Exhibit P13 and quash its original by the issuance of a writ of certiorari. - iii) issue a writ of mandamus or other appropriate writ, direction or order, compelling the respondent to grant the benefit of SSS Pension to the petitioner with the actual arrears due to her within a stipulated time. - iv) Issue any other appropriate writ, direction or order as this Hon'ble Court deems fit and proper in the nature and circumstances of the case.” 6. W.P.(C) No. 10064/2013 was filed by the respondent in W.A. No.719/2019 seeking the following reliefs: - (i) declare that the petitioner is entitled to get the benefit of “Swatantrata Sainik Samman Pension” (SSS Pension); - (ii) call for the records leading to the issue of Ext.P13 letter dated 13.03.2013 issued by the Deputy Secretary to the Government of India, Ministry of Home Affairs, and quash its original by issuance of a writ of certiorari; - (iii) Issue a writ of mandamus or other appropriate writ, direction or order, compelling the 1[st] respondent to grant the benefit of dependent family pension under the SSS Pension Scheme to the petitioner wit the actual arrears due to him, within a stipulated time. 7. W.P.(C) No.19452/2013 has been instituted by the writ petitioner seeking for a direction to grant her Swatantrata Sainik Samman Pension. By the impugned judgment, writ court directed the appellant – Union of India, to grant SSS pension to the writ petitioners, which according to the appellant, is without properly considering the provisions of Swatantrata W.As. 675 & 719 of 2019 -:7:- Sainik Samman Pension Scheme (SSS Scheme) and without properly appreciating the evidence on record. 8. Brief facts leading to the filing of W.P.(C) No.19452/2013 is that; the husband of the writ petitioner had applied for Swatantrata Sainik Samman Pension in the year 1976. However, the same was rejected by the Ministry on 05.10.1992, for the reason that at the relevant time, PunnapraVayalar movement in which her husband had claimed participation, was not recognised under the scheme. Being aggrieved, husband of the writ petitioner filed W.P.(C) No.19669/2001, which was disposed of by this Court by judgment dated 21.06.2002, with a direction to the Government of Kerala, to furnish its verification report to the Central Government. On receipt of the report from the State Government, claim of the petitioner's husband was considered and rejected by the Union Ministry vide order dated 10.10.2002, as he was not found eligible for pension under the SSS Pension Scheme. 9. The grounds of rejection were that husband of the petitioner had not produced documentary evidence in support of his claim of underground suffering and that he has not produced Non-availability of Records Certificate (NARC). It was also found that the Personal Knowledge W.As. 675 & 719 of 2019 -:8:- Certificate (PKC) produced by the petitioner's husband from the certifier Shri P. K. Sukumaran was a misleading one since the certifier had stated that the petitioner's husband had stayed underground and was ordered to be externed from the district or interned in your home for a period from 7.3.1122 ME to 06.10.1122 ME. It was also contended that the State Government has not recommended the case of the petitioner's husband. 10. Writ petitioner has further stated that aggrieved by the above rejection order, though she had filed several writ petitions and writ appeals, the claim submitted by her husband was rejected saying that her husband failed to satisfy the criteria as laid down in the scheme. It was submitted that the claim of the writ petitioner as per the application of her husband was that he went underground since an arrest warrant was issued against him. According to the appellant, merely because an arrest warrant was issued does not entitle him for the claim of underground suffering. That apart, no award was issued against the husband of writ petitioner. 11. Though the appellant has reconsidered the claim of the writ petitioner, in terms of fresh verification-cum-entitlement report dated 31.12.2012, and based on Exhibit-P11 judgment dated 13.02.2012 in W.A.No.382/2010 and other connected cases, the same was again rejected W.As. 675 & 719 of 2019 -:9:- by the Ministry vide its order dated 25.06.2013, for the reason that after examining the claim, it was found that the writ petitioner was not eligible for grant of SSS Pension. It was also found that perusal of the recommendation letter would show that the State Government has pointed out numerous discrepancies and shortcomings, and without giving any explanation, it has simply recommended the case of the writ petitioner, which according to the appellant is not acceptable and reliable. 12. It was in the above circumstances, W.P.(C) No.19452/2013 has been filed by the respondent/writ petitioner, for the reliefs stated supra. 13. According to the appellant, similar is the fact situation as regards W.P.(C) No.10064/2013, wherein the State Government vide letter dated 17.03.2006 has forwarded the claim of writ petitioner for SSS Pension, with the relevant documents to the appellant, with a negative recommendation. However, no evidentiary document was produced by the writ petitioner in support of his claim. Hence, the application of the writ petitioner was considered and rejected by the appellant vide letter dated 04.10.2006, which according to the appellant is passed in accordance with law. 14. Being aggrieved, the writ petitioner approached this Court by filing a writ petition, which was disposed of vide judgment dated W.As. 675 & 719 of 2019 -:10:- 23.07.2008, wherein the State Government was directed to issue fresh verification-cum-entitlement report. Pursuant to the said judgment, the claim was reconsidered by the appellant, based on the recommendation letter issued by the State Government and rejected vide order dated 10.02.2009, on the ground that NARC was not in the prescribed format and hence, PKC cannot be considered. 15. Writ petitioner thereafter preferred W.P.(C) No.10623/2009, which was disposed of by order dated 28.02.2012, in terms of the decision in a Hon'ble Division Bench judgment in W.A. No.382/2010 and connected cases dated 13.02.2012, directing the State Government to issue necessary certificates. In terms of the said judgment, State Government has forwarded the recommendation as per letter dated 25.10.2012. However, the appellant again rejected the application by an order dated 13.03.2013. 16. Refuting the averments contained in the writ petitions, the appellant herein has filed counter affidavits before the writ court. Learned single Judge, after considering the rival contentions raised by both the parties, disposed of the subject writ petitions directing the appellant – Union of India, to grant SSS pension to the respective writ petitioners/respondents herein, as extracted above. W.As. 675 & 719 of 2019 -:11:- 17. Being aggrieved, instant writ appeals are filed basically contending that the writ court ignored the vires of the scheme, which provides that the appellant is the final authority to decide as to whether the claimant is entitled to the pension or not. Hence, it is submitted that appellant is not bound by the recommendation of the State Government. 18. Appellant has further contended that the writ court failed to consider the fact that there are numerous discrepancies in the applications of the writ petitioners/respondents herein, which were pointed out by the State Government. Despite the discrepancies, the State Government, merely to comply with the order of the learned single Judge, granted recommendation in favour of the respondents, which according to the appellant, is not a proper recommendation, and rightly rejected the respondents' application. 19. Appellant has further contended that they had passed reasoned/ speaking orders for rejecting the claim of the writ petitioners. According to the appellant, writ court did not consider the fact that the husband of the writ petitioner had nowhere stated that he remained underground on account of an award for arrest and neither he was a proclaimed offender nor any detention order was issued against him. In the absence of any specific pleading, writ petitioner was not eligible for grant of SSS Pension. W.As. 675 & 719 of 2019 -:12:- 20. Appellant has further contended that the underground suffering can only be considered for grant of SSS Pension, if the same was in lieu of any award on the persons' head or arrest, or the person was a proclaimed offender or one against whom detention order was passed. According to the appellant, merely because an arrest warrant was issued does not entitle one to the claim of the underground suffering. 21. Appellant has further contended that the State Government has not disclosed in their recommendation, as to what all agencies were approached by it for verifying the case of the respondents/writ petitioners and which all agencies had declared that the records of the case were not available. The recommendation merely states that they declare that the records are not available with all the agencies. Such a recommendation and verification report, according to the appellant, is not acceptable. 22. Based on the above, learned Central Government Counsel for the appellant made submissions. Further, relying on the decision of this Court in **Sainaba v. Union of India** reported in **AIR 2006 KER 269** , learned Central Government Counsel for the appellant submitted that the mere fact that the State Government has recommended an application or that the State Government has granted pension is not a ground to give the same under the Central Scheme. But, the applicant has to independently fulfill W.As. 675 & 719 of 2019 -:13:- the criteria laid down under the Central Scheme for grant of freedom fighter's pension, and the Central Government can alone decide as to whether the applicant has satisfied the eligibility criteria laid down under the SSS Scheme. 23. It is further submitted that no rule or regulation has been brought to their notice obliging the Central Government to follow the opinion expressed by the State Government. The learned counsel also submitted that the Central Government would, of course, give due weightage to the recommendation of the State Government, but that does not mean the Central Government is bound to accept the offer made by the State Government and vice versa. 24. Appellant has also placed reliance on the decision of the Hon'ble Supreme Court in **Asarabai v. Union of India and Ors.** [AIR 1993 SC 2127] and submitted that as regards the sufficiency of proof, the scheme itself mentions the documents which are required to be produced before the Government. It is also submitted that it is not possible for the Courts to scrutinize the documents, which according to the writ petitioners, they had produced in support of their claim and pronounce upon their genuineness. According to the appellant, it is the function of the Government to do so. That apart, referring to clause 1.5 of the Revised Guidelines issued as per W.As. 675 & 719 of 2019 -:14:- Order No.45/03/2014 FF(P) dated 6.8.2014, learned counsel for the appellant submitted that no pension can be sanctioned in the name of the freedom fighter after his/her death even if the matter was under consideration. He also submitted that the said clause also entails that no life time arrears or dependent pension shall be sanctioned to his/her spouse/daughter after the death of the freedom fighter. 25. Heard Mr. Jaishankar V. Nair, learned Central Government Counsel for the appellant; Mr. K. K.Sathish, learned counsel for the respondent, and perused the material on record. 26. Recommendation of the Secretary to Government, General Administration (FFP-A) Department, Thiruvananthapuram dated 31.12.2012 issued to the petitioner in W.P.(C) No.19452/2013, leading to W.A. No.675/2019, is extracted hereunder: “GOVERNMENT OF KERALA GENERAL ADMINISTRATIVE (FFP-A) DEPARTMENT No.40071/FFP-A2/2012/GAD Thiruvananthapuram Dated, 31.12.2012 From The Secretary to Government To The Secretary to Government of India Ministry of Home Affairs, (F.F. Division) 2[nd] Floor, NDCC-II Building, Parliament Street, New Delhi : 110 001. W.As. 675 & 719 of 2019 -:15:- Sir Sub:- Swatantrata Sainik Samman Pension-Judgment in WP(C) No.1637/2010 filed by Smt. Santhamma, W/o. Late K.K. Bhaskaran, Kalloochirayil, Kalavoor P.O., Alappuzha - reg. Ref:- 1. Judgment dated 28.02.2012 in WP(C) No. 1637/10. 2.Representation dated 24.10.2012 submitted by Smt. Santhamma. I am directed to invite your attention to the reference cited. As per the judgment, the Hon'ble High Court of Kerala has directed the State Government that “....... State Machinery has to first look into the applications admitted by the writ petitioners along with the documents and if any defects are found, they must intimate the concerned persons to rectify or cure the defects within a reasonable time, thereafter from the date of rectification of the defects within next three months, the State shall consider and forward the applications in accordance with the procedure contemplated under the Scheme, including issuance of non-availability of Records Certificate. “ The petitioner produced a copy of Personal Knowledge Certificate of Kunjan Sukumaran and Narayan Ramankutty, copy of Non-availability of Records Certificate from Superintendent of Police, Alappuzha. The following defects were found in the above documents: i) The petitioner has not produced the originals of the above documents. ii) No jail extracts of the certifiers are produced. iii) The District Collector, Alappuzha has reported that Kerala Freedom Fighters Pension has been sanctioned to the petitioner on the basis of claimed jail sufferings of her late husband for 9 months from 29.12.1123. But as per the SSSP application, the petitioner claimed underground sufferings of her late husband for 7 months from 7.3.1122 to 6.10.1122. Thus, the claims in the two applications were different. The petitioner was directed to rectify the above defects. Accordingly he has submitted a representation W.As. 675 & 719 of 2019 -:16:- dated 24.10.2012. He has not produced the original of the PKC issued by Sri. Kunjan Sukumaran. The original of the PKC issued by Sri. Narayanan Ramankutty has already been received in Government. But the petitioner has not produced the original of the NARC from Superintendent of Police, Alappuzha. As directed by the Government to rectify the defects as mentioned in item No.iii the petitioner has explained that on account of the participation in the Punnapra Vayalar Struggle an arrest warrant was issued against her husband in case No.PE7/1122. Due to this he had gone underground for 7 months. Thereafter, he was arrested by the Police and detained in the defunct Police Station lock up at Alappuzha for 9 months from 29.12.1123 onwards. In the Personal Knowledge Certificate issued by Sri. Narayanan Ramankutty, the certifier has certified that the petitioner's husband remained underground for more than six months from 7.3.1122 ME to 6.10.1122 ME. As per the copy of the convict Register of the certifier the date of sentence is 31.10.1124 (1949) to 26.1.1955. The concerned Government agencies have reported that the records related to PE7/1122 ME are not available at their office. Therefore, it is certified that “All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.” In this circumstances, the Swatantrata Sainik Samman Pension application in respect of Smt. Santhamma, W/o. Late K. K. Bhaskaran is recommended. A copy of the reference 2[nd] cited is enclosed herewith for further necessary action at your end. The direction contained in the judgment in WP(C) No.1637/10 is thus complied with. Yours faithfully, Sd/- K.R. JYOTHILAL Secretary to Government” 27. Recommendation of the Secretary to Government, General Administration(FFP-A) Department, Thiruvananthapuram dated 24.12.2012 W.As. 675 & 719 of 2019 -:17:- ## issued to the writ petitioner in W.P.(C) No.10064/2013, leading to W.A. No.719/2019, is extracted hereunder: ## “GOVERNMENT OF KERALA GENERAL ADMINISTRATIVE (FFP-A) DEPARTMENT No.40071/FFP-A2/2012/GAD Thiruvananthapuram Dated, 24.12.2012 From The Secretary to Government To The Secretary to Government of India Ministry of Home Affairs, (F.F. Division) 2[nd] Floor, NDCC-II Building, Parliament Street, New Delhi : 110 001. Sir, Sub:- Swatantrata Sainik Samman PensionJudgment in WP(C) No.10623/2009 filed by Sri. A. V. Thampi, Arayanparambu, Vattayal Ward, Thiruvampady P.O., Alappuzha - 688002 - reg. Ref:- 1. Judgment dated 28.02.2012 in WP(C) No. 10623/09. 2. Government of India letter No.52/CC/K/41/2009/F F(SZ) dated 16.5.2012 3. Representation dated 25.10.2012 submitted by Sri. A.V. Thampi. I am directed to invite your attention to the reference cited. As per the judgment 1[st] cited the Hon'ble High Court of Kerala has directed the State Government that “....... State Machinery has to first look into the applications admitted by the writ petitioners along with the documents and if any defects are found, they must intimate the the concerned persons to rectify or cure the defects within a reasonable time, thereafter from the date of rectification of the defects within next three months, the State shall consider and forward the applications in accordance with the procedure contemplated under the W.As. 675 & 719 of 2019 -:18:- Scheme, including issuance of non-availability of Records Certificate.” In support of the claim the petitioner produced copy of Non-availability of Records Certificate from Superintendent, Sub Jail, and CJM Court, Alappuzha, copy of Personal Knowledge Certificate issued by T.F.Yohannan and H.K.Chakrapani. Pursuant to the Judgment the petitioner was directed to submit the originals of the above documents. As directed by the Government the petitioner has produced the originals of the Non-availability of Records Certificate from CJM Court, Alappuzha, Superintendent of Police, Alappuzha, and Personal Knowledge Certificates from H.K.Chakrapani and T.F.Yohannan. It is submitted that the claim of the petitioner is underground suffering from 24.10.1946 to 15/6/1947 in connection with Punnapra Vayalar Struggle. As per the Personal Knowledge Certificates the case No. is PE 7/1122. It is certified that “All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.” In this circumstances, the Swatantrata Sainik Samman Pension application in respect of Sri.A.V.Thampi is recommended. A copy of the representation 3[rd] cited along with other available documents are enclosed herewith for further necessary action at your end. The direction contained in the judgment 1[st] cited is thus complied with. Yours faithfully, Sd/- K.R. JYOTHILAL Secretary to Government” 28. Order in F.No.52/CC/K/25/2010-FF(SZ) dated 18.06.2013 issued by the Deputy Secretary to the Government of India, Ministry of Home W.As. 675 & 719 of 2019 -:19:- ## Affairs (Freedom Fighters Division), rejecting the claim of the respondent in ## W.A. No.675/2019 is extracted hereunder: “F. No.52/CC/K/25/2010-FF(SZ) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya (Freedom Fighters Division) 2[nd] Floor, NDCC-II Building, Parliament Street, New Delhi-110 003, Dated the 18[th] June, 2013. To Shri Jyothilal K.R., Secretary, Government of Kerala, General Administration (FFP-A) Department, Thiruvananthapuram, Kerala. Subject:- Swatantrata Sainik Samman Pension- implementation of Judgment dated 28.02.2012 of the Hon'ble High Court of Kerala, Ernakulam in W.P(C) No. 1637 of 2010 filed by Smt. Santhamma, W/o Late K.K. Bhaskaran against UOI, seeking direction of the Hon'ble High Court to the respondents for grant of pension under the SSS Pension Scheme, 1980. Sir, I am directed to refer to your Office Letter No. 40071/FFPA2/2012/GAD dated 31.12.2012 forwarding the report in respect of Smt. Santhamma, W/o Late KK. Bhaskaran against UOI for grant of pension under the SSS Pension Scheme, 1980. In compliance of the judgment in W.A. No. 382 of 2010 and connected cases dated 13.02.2012, the State Government has forwarded the verification cum entitlement to pension report in respect of the petitioner with positive recommendation. In the said letter it has been stated that,- “.......The petitioner produced copy of Personal Knowledge Certificate of Kunjan Sukumaran and Narayanan Ramankutty, copy of Non-availability of Records Certificate from Superintendent of Police, Alappuzha. The following defects were found in the above documents; i) The petitioner has not produced the originals of the above documents. W.As. 675 & 719 of 2019 -:20:- ## ii) No jail extracts of the certifiers are produced. iii) The District Collector, Alappuzha has reported that Kerala Freedom Fighters Pension has been sanctioned to the petitioner on the basis of claimed jail sufferings of her late husband for 9 months from 29.12.1123. But as per the SSSP application the petitioner claimed underground sufferings of her late husband for 7 months from 7.3.1122 to 6.10.1122. Thus the claims in the two applications were different. The petitioner was directed to rectify the above defects. Accordingly he has submitted a representation dated 24.10.2012. He has not produced the original of the PKC issued by Sri. Kunjan Sukumaran. The original of the PKC issued by Sri. Narayanan Ramankutty has already been received in Government. But the petitioner has not produced the original of the NARC from Superintendent of Police, Alappuzha. .............as mentioned in item No.iii the petitioner has explained that on account of the participation in the Punnapra Vayalar Struggle an arrest warrant was issued against her husband in case No.PE7/122. Due to this he had gone underground for 7 months. Thereafter he was arrested by the Police and detained in the defunct Police Station lock up at Alappuzha for 9 months from 29.12.1123 onwards. In the Personal Knowledge Certificate issued by Sri. Narayanan Ramankutty the certifier has certified that the petitioner's husband remained underground for more than six months from 7.3.1122 ME to 6.10.1122 ME. As per the copy of the convict Register of the certifier the date of sentence is 31.10.1124 (1949) to 26.1.1955. The concerned Government agencies have reported that the records related to PE7/1122 ME are not available at their office. Therefore, it is certified that "All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available." In the circumstance, the Swatantrata Sainik Samman Pension case of Smt. Santhamma, W/o. late K. K. Bhaskaran is recommended. A copy of the reference 2 cited is enclosed herewith for further necessary action at your end. W.As. 675 & 719 of 2019 -:21:- The direction contained in the Judgment in WP(C) No.1637/10 is complied with." 3. In this connection it is to state that on examination of the SSS Pension case and the above mentioned recommendation letter of the State Government it is found that the claim does not meet the evidentiary requirements, and eligibility criteria of the SSS Pension Scheme, 1980 due to the following shortcomings: - (i) The Government of Kerala vide their letter dated 31.12.2012 has stated that when the petitioner was directed to rectify the defects he has not produced the original of the PKC issued by Sri. Kunjan Sukumaran. As such this PKC cannot be treated as a valid proof. - (ii) While rectifying the defects the petitioner has explained that on account of the participation in the Punnapra Vayalar Struggle an arrest warrant was issued against her husband in case No.PE7/122. Due to this he had gone underground for 7 months. Thereafter he was arrested by the Police and detained in the defunct Police Station lock up at Alappuzha for 9 months from 29.12.1123 onwards. The petitioner herself has mentioned in her representation that since there was no evidence to substantiate the jail sufferings in the defunct Police station her husband had claimed only his underground sufferings in his pension application. As such only the underground suffering can be considered in this case. As regard underground suffering, as per the provisions of the Scheme, going underground against warrant of arrest does not make someone eligible for grant of pension unless he/she is proclaimed offender or an award on his/her head was announced or he/she is one for whose detention an order of arrest was issued but not served. The petitioner has not established that any of these conditions preceded the issuance of arrest warrant. The aforesaid view has been upheld by the Hon'ble Supreme Court in judgment dated 22.4.2007 in SLP No. 22520/2005UOI vs K. Indrasena Reddy and another. - (iii) Government of Kerala has mentioned in their aforesaid letter that the Petitioner has not produced the original of the NARC from Superintendent of Police, Alappuzha. - (iv) Government of Kerala had vide the aforesaid letter dated 31.12.2012 recommended the claim application, without specifying any reason/basis for the positive recommendation just in compliance of direction of the Hon'ble High Court vide Judgment dated 28.02.2012 in W.P. (C) No.1637 of 2010 filed by the petitioner. Hence, it is not acceptable. W.As. 675 & 719 of 2019 -:22:- 4. The claims of Samman Pension can be considered by the Central Government only when these are duly verified and recommended by the State Government/U.T Administrations concerned along with the basis of such recommendations in accordance with the provisions of the Scheme. 5. The Division Bench of the Hon'ble High Court of Kerala, Ernakulam Bench vide Judgment dated 22.06.2012 in the W.A.314 of 2011 heard with other W.A.s and W.P.s has observed as under: "Para.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." 6. The Division Bench of the Hon'ble High Court of Kerala, Ernakulam Bench vide Judgment dated 17.08.2012 in the W.A.1017 of 2012 has observed as under: "Para 8. As per the scheme which came into force in 1981, the State machinery i.e. General Administration (FFP.B) has to do the ground work with reference to the documents and then forward the application along with the report which is called verificationentitlement-pension report and thereafter the Central Government has to verify the documents in detail and then proceed to deal with the application as per the procedure contemplated. There is no compulsion or duty cast that with the recommendation of the State Government, the Central Government has to sanction the pension. The authority which deals with the application must have the subjective satisfaction of the material forthcoming from the application and the documents.....” 7. As regard sanctioning of State FF Pension to the petitioner on the basis of claimed jail sufferings of the late husband of the petitioner it may be stated that the State Pension Scheme and the SSS Pension Scheme of UOI are two separate Schemes with different eligibility criteria being implemented by the two different authorities. The receipt of pension under the State Scheme does not automatically entitle a person for pension under the Central Scheme. For getting pension under the SSS Pension Scheme, 1980 a person has to fulfill the prescribed eligibility criteria of the Scheme and submit the necessary documentary evidence in support of the claim. W.As. 675 & 719 of 2019 -:23:- 8. On this matter, it is pertinent to mention here that the Hon'ble Supreme Court in the case of M. L. Bhandari & Ors. Vs. Union of India (AIR 1993 SC 2127) has held that- "The petitioners would undoubtedly be entitled to the benefit of the Scheme provided. of course, they produce the relevant material in support of their claim." "As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly." "The pension should, of course, be sanctioned only after the required proof is produced."; 9. The Division Bench of the Hon'ble High Court of Kerala, Ernakulam Bench has vide Judgment dated 13.02.2012 in W.A.382/2010 heard with other Writ Appeals and Writ Petitions has also referred to various Judgments of the Hon'ble Supreme Court of India on this matter and ratified the requirement of fulfillment of evidentiary requirement and eligibility criteria of the SSS Pension Scheme, 1980. 10. Since, the claim does not meet the evidentiary requirements and eligibility criteria of the SSS Pension Scheme, 1980, it is regretted that claim of Smt. Smt. Santhamma, W/o late K.K. Bhaskaran, for grant of pension cannot be accepted and the claim is hereby rejected. This decision may please be communicated to the petitioner under intimation to this Ministry. Yours faithfully, (D.K. Goel) Deputy Secretary to the Government of India” 29. Likewise, after considering the judgment dated 28.02.2012 in W.P.(C) No.10623/2009 filed by the writ petitioner, the facts, and provisions of S.S.S.Pension Scheme, 1980, the Deputy Secretary to the Government of India, Ministry of Home Affairs [Freedom Fighters Division (SZ)] vide order No.52/CC/K/41/2009-FF(SZ) dated 13.03.2013 rejected W.As. 675 & 719 of 2019 -:24:- ## the claim of the respondent in W.A. No.719/2019, the relevant portion of ## which, is extracted hereunder: “4. As per the provisions of the S.S.S. Pension Scheme, 1980, any applicant who claims underground suffering is eligible for grant of Samman pension provided the following conditions are fulfilled: **Underground suffering** :- A person who on account of his participation in the freedom struggle remained underground for more than six months provided he was: (a) a proclaimed offender; or (b) one on whom an award for arrest/on head was announced; or (c) one for whose detention, order was issued but not served. Voluntary underground suffering or self-exile for party work under the command of party leaders is not covered as eligible suffering for pension under the Scheme. **(i) Primary evidence** :- Documentary evidence by way of Court's/Government's orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention. According to the Swatantrata Sainik Samman Pension Scheme, 1980, absconsion on issue of warrant of arrest is not an eligible suffering for grant of Samman pension, unless the same is followed by the order of proclaimed offender/or award for arrest/on head or detention order. **(ii) Secondary evidence** :- In the absence of primary recordbased evidence, a Non-availability of Records Certificate (NARC) from the concerned State Government/Union territory Administration along with a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be front the same administrative district can be submitted as supporting evidence to the claim. Where records of the relevant period are not available, a NonAvailability of Record Certificate (NARC) from the concerned authority could be considered as secondary evidence. The NARC should not be general or vague and should be in accordance with the instructions issued by the Government of India, Ministry of Home Affairs. The instructions, inter alia, require the State Governments to issue NARC only after due verification from all sources. The NARC is treated valid only when it is furnished by W.As. 675 & 719 of 2019 -:25:- the State Government in the following manner:- "All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available." The claims of Central Samman Pension can be considered by the Central Government only when these are duly verified and recommended by the State Governments/Union Territory Administrations concerned, in accordance with the provisions of the Scheme. As per the Scheme, the verification and recommendation report of the State Government is mandatory in view of the fact that the documentary evidence of the claims are in the possession of the State Governments/Union Territory Administrations and not of the Central Government. However, it is also mentioned that the Central Government has to keep all documents/reports/evidence in view and to take a decision strictly in accordance with the eligibility criteria and evidentiary requirements in the Central Scheme. A positive recommendation of the State Government is, therefore, not binding on the Central Government (if the claim does not satisfy the eligibility criteria and evidentiary requirements prescribed Scheme). 5. The petitioner had submitted an application for Swatantrata Sainik Samman Pension claiming underground suffering from 2410-1946 to 15-06-1947 to evade arrest in connection with Punnapra Vayalar Struggle in case No. PE 7/1122. In order to prove the claim, in the absence of Primary evidence, he had produced original PKCs issued by Sri.H.K.Chakrapani and Sri.T.F.Yohannan and their copy of jail extract, copy of SSSP sanctioning order and copy of rejection order issued by CJM Court Alappuzha in case No. PE 7/1122. He has not submitted any additional fresh documents. 6. State Government has issued NARC and also recommended the case of petitioner for grant of SSSP. Although State Government has issued NARC, it appears to be more in compliance of High Court order than based on official records. In his application dated 09-11-2005 the petitioner himself claims that he came out from his underground life before independence. It leads to reasonable doubt about his underground suffering to evade arrest in connection with the freedom struggle. State Government has also mentioned it in their letter dated 16-10-2008. Moreover, the Punnapra Vayalar Struggle was recognized for grant of SSSP on 20-01-1998; however the petitioner had applied for Pension only on 09-11-2005. The time lag of more than 7 years that had occurred in the submission of application raises doubt on the genuineness of the claim. W.As. 675 & 719 of 2019 -:26:- 7. The PKC given by Sri. H.K. Chakrapani is not acceptable, firstly, because he has been misusing his status of a freedom fighter and issuing the PKCs indiscriminately and secondly, he was given pension in 2002 by giving benefit of doubt. As such PKC issued by him cannot be relied upon. The secondary evidence should be reliable enough to induce a reasonable belief that the applicant fulfills the conditions of the scheme. In other words, PKC cannot be taken as genuine or conclusive proof as it can be obtained without much effort. 8. Though the positive recommendation of the State Government is mandatory, the recommendation of the State Government is not binding on the Central Government, if the conditions necessary for the grant of pension are not fulfilled. The Hon'ble Division Bench of the High Court of Kerala has vide judgment dated 16.1.2006 in WA No. 2569 of 2005 (against judgment dated 18.5.2005 in WP(C) No. 10812/2004) - Sri. A.R. Parameswaran Vs Union of India & Others upheld as follows: "5. We have already indicated criteria to be adopted while considering the application under the State Rules and Central Schemes are different. The mere fact that an application has been recommended by the State Government or that the State Government has granted pension is not a ground to grant pension under the Central Scheme. Applicant has to independently fulfill the criteria laid down under the Central Scheme for the grant of freedom fighter's pension and the Central Government can independently decide as to whether the applicant has satisfied the eligibility criteria laid down under the SSS Pension Scheme. No rule or regulation has been brought to our notice obliging the Central Government to follow the opinion expressed by the State Government. Central Government would of course give due weight to the recommendation given by the State Government, but that does not mean the Central Government is bound to accept the recommendation made by the State Government and vice versa. 9. The Hon'ble Supreme Court vide Judgment dated 29[th] May, 2012 in Civil Appeal No. 4684 of 2006 filed by UOI vs. Pilli Ramachandraiah has stated as follows: "In our view, the recommendation made by the State Government is not binding on the Central Government and it is open to the Central Government to make further enquiry, if so advised." W.As. 675 & 719 of 2019 -:27:- 10. In view of the above, the claim of Sri A.V. Thampi does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. It is, therefore, regretted that Sri A.V. Thampi is not eligible for grant of SSP under the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, his claim is, hereby, rejected. 11. It is requested that this decision may please be communicated to Sri.A.V.Thampi under intimation to this Ministry. 12. This issues with the approval of the competent authority. ## Yours faithfully, (D.K. Goel) Deputy Secretary to the Government of India” 30. Insofar as the reason for declining SSS Pension to Smt. Santhama Bhaskaran, respondent in W.A. No.675/2019 is concerned, it is stated in the order impugned before the writ court that she has failed to produce the original of Non-availability of Records Certificate (NARC) from the Superintendent of Police, Alappuzha and further that, Government of Kerala vide letter dated 31.12.2012 has recommended the claim application without specifying any reason for the positive recommendation. So far as the production of NARC and PKC are concerned, they revolve around paragraph 2.4 of the Pension Scheme, 1980, which clearly specifies that a person, on account of participation in the freedom struggle, was interned in his home or externed from his district for a minimum period of 6 months, is eligible subject to furnishing of order of internment or externment issued by the competent authority, from official records. It also W.As. 675 & 719 of 2019 -:28:- specifies that in the absence of officials records, NARC from the State Government/UT Administration concerned, along with a certificate from prominent freedom fighter, who had proven jail sufferings of at least two years; who belonged to the same administrative unit and whose area of operation was same as that of the applicant, should be furnished. 31. It is pertinent to note that the State Government in its letter dated 31.12.2012 has clearly stated that in the Personal Knowledge Certificate issued by Mr. Narayanan Ramankutty, the certifier has recommended that the husband of Smt. Santhama Bhaskaran, remained underground for more than six months from 7.3.1122 ME to 6.10.1122 ME and as per the copy of the convict register of the certifier, the date of sentence is 31.10.1124 (1949) to 26.1.1955. It is further stated therein that some Government agencies have reported that the records related to PE7/1122 ME are not available at their office. Therefore, the Government certified that “all concerned authorities of the State Government, who could have relevant reports in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time not available”. 32. In our view, the Union Government has declined the recommendation made by the State Government on the basis firstly that, W.As. 675 & 719 of 2019 -:29:- in the application, the date of underground suffering caused by the writ petitioner has not tallied with the date mentioned by the State Government in its recommendation. In our view, merely because there is a difference in the dates mentioned in the application submitted by the writ petitioner, that by itself cannot turn out to be a ground for rejecting the application for the grant of SSS Pension. We are also of the opinion that the Union Government cannot simply ignore the recommendation made by the State Government, without assigning appropriate reasons. 33. On a perusal of the impugned judgments, we are convinced that the learned single Judge has taken into account the entire aspect of the matter and noted that the PKC issued by Mr. Kunjan Sukumaran has been duly acknowledged by the State Government authorities and letter of recommendation has also been issued; and therefore, even if it is assumed for a movement that the PKC of Mr. Kunjan Sukumaran is not acceptable, the writ petitioner in W.P.(C) No.19452/2013 is mainly placing reliance on the PKC issued by Mr. Narayanan Ramankutty. However a conclusive finding is rendered by the learned single in the judgment in W.P.(C) No.10470/2013 dated 30.05.2018 that the non-consideration of PKC issued by Mr. Narayanan Ramankutty is unreasonable and arbitrary . Apart from that, the various pros and cons of the issues were considered by the W.As. 675 & 719 of 2019 -:30:- learned single Judge before arriving at the definite and final conclusion in respect of the writ petition filed by Smt. Santhama Bhaskaran. 34. In so far as the claim of Mr. A.V. Thampi, which is the subject matter of W.A. No.719/2019 is concerned, the Central Government has rejected his application, basically relying on the decision of the Hon'ble Supreme Court in Civil Appeal No. 4684 of 2006 [UOI v. Pilli Ramachandraiah] and held that the claim of Mr. A.V. Thampi does not meet the eligibility criteria and evidentiary requirements of SSS Pension Scheme, 1980. 35. However, the State Government, in the recommendation dated 24.12.2012, has stated in categorical terms that pursuant to the judgment in W.P.(C) No.10623/2019 dated 28.02.2012, Mr. A.V.Thampi, the writ petitioner, was directed to submit the originals of Non-availability of Records Certificate (NARC) and Personal Knowledge Certificate (PKC), and as directed by the Government, he has produced the originals of NARC from CJM Court, Alappuzha as well as Superintendent of Police Alappuzha. and PKCs issued by two certifiers, viz., H.K.Chakrapani and T.F. Yohannan. 36. Therefore, it was unequivocally certified that all concerned authorities of the State Government, who could have relevant records in W.As. 675 & 719 of 2019 -:31:- respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available. However, the Union Government has chosen to decline the claim of the writ petitioner basically stating that the PKC given by Mr. H.K.Chakrapani is not acceptable firstly because, he has been misusing his status of a freedom fighter and issuing the PKCs indiscriminately; secondly, he was given pension in 2002, by giving benefit of doubt; and therefore, the PKC issued by Mr. H.K. Chakrapani cannot be relied on. It is also stated in the rejection order by the Central Government that the secondary evidence should be reliable enough to induce a reasonable belief that the applicant fulfills the conditions of the scheme, and concluded that the PKC cannot be taken as a genuine or conclusive proof as it can be obtained without much effort. It is also pointed out that the positive recommendation of the State Government is not binding on the Central Government, if the conditions necessary for the grant of pension are not fulfilled. Accordingly, the claim of Mr. A.V.Thampi was rejected holding that he is not eligible for SSS Pension as per the Scheme, 1980. 37. In our considered opinion, if the certificate issued by Mr. H.K. Chakrapani was not acceptable, it is clear from the recommendation made by the State Government that the certificate issued by Mr. T.K.Yohannan W.As. 675 & 719 of 2019 -:32:- was taken into account by the State Government. 38. Clause 2.4 of the Scheme, 1980 dealing with internment or externment, discussed above, requires only one certificate of a certifier. In that view of the matter also, the rejection made by the Union Government on the ground that the certificate issued by Mr. H.K.Chakrapani is not acceptable, cannot be sustained because, there was a valid certificate issued by Mr. T.K.Yohannan and it was totally ignored by the Central Government for reasons best known to them. 39. In fact, the entire aspect of the matter was considered by the learned single Judge while passing the impugned judgment and directions were issued taking into account the provisions of Scheme, 1980, as well as the parameters required for the grant of SSS Pension to the eligible persons. It was also taking into account all aspects of the matter, which were vital for consideration, learned single Judge has rendered the impugned judgment, insofar as the claim made by Mr. A.V.Thampi is concerned. However, from the order passed by the Government of India, Ministry of Home Affairs, it is clear that the consideration made by it confined only to the certificate issued by Mr. H.K.Chakrapani. We could not find any reason in the order passed by the Central Government rejecting the claim of Mr.A.V. Thampi, regarding the certificate issued by a qualified W.As. 675 & 719 of 2019 -:33:- certifier, Mr. T.K.Yohannan. 40. In sum and substance, the issues were elaborately considered by the learned single Judge and we are of the clear opinion that there is no reason to interfere with the observations and findings made by the learned single Judge in the impugned judgments. 41. On a totality of the facts and circumstances, we have no hesitation to hold that the appellant has not made out a case of jurisdictional error or other legal infirmities, justifying interference in the judgments under appeals, dated 09.07.2018 and 11.07.2018 of the learned Single Judge. Needless to say, appeals fail and accordingly, they are dismissed. Sd/S. Manikumar Chief Justice Sd/Shaji P. Chaly Judge krj //TRUE COPY// P.A. TO C.J.