W.P.(C).Nos.16341/2013 & 22770/2014

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** **WP(C).No. 16341 of 2013** ## **PETITIONER(S)** **1 K.M.KUNHI KANNAN NAMBIAR, RESIDING AT HARI SREE NILAYAM, AYYAPPA NAGAR, KUDLU.P.O., KASARAGOD.** **2 K.V.NARAYANAN, RESIDING AT NILANGARA, KANHANGAD VILLAGE AND POST OFFICE, HOSDURG TALUK, KASARAGOD DISTRICT.** - **3 KAMALA** **W/O.K.KRISHNANKUTTI, RESIDING AT KODUNGUKUDY, THRISSILERY.P.O., KATTIKULAM, MANANTHAWADY, WAYANAD.** **4 SMT.V.THAMBAI, W/O.LATE SRI.H.KUNHAMBU, RESIDING AT NITTADUKKAM HOUSE, BALLA.P.O., HOSDURG, KASARAGOD.** **5 KARTHIYAYANI, W/O.LATE PALORAMMAL UNNI, MENHANNIAM.P.O., PERAMBRA, KOYILANDY, KOZHIKODE.** **6 K.KAUSU, W/O.LATE K.KUMARAN, RESIDING AT KAVLIERI KUNIYIL HOUSE, P.O.CHAMPAD, PANOOR, KANNUR.** - **7 KALYANIKUTTY AMMA, W/O.LATE M.DAMODARAN NAIR, RESIDING AT VELUTHEDATH HOUSE, PALATH.P.O., KOZHIKODE-673 611.** - **8 JANAKI.P.,** - **W/O.LATE A.K.SANKARA MENON, RESIDING AT VALAPPIL HOUSE, PANTHALAYANI, KOYILANDY.P.O., KOZHIKODE-673 305.** - **9 C.DEVI AMMA,** **W/O.LATE T.V.NARAYANAN NAIR, RESIDING AT GANGA, KARINAKALKUZHY, KOLACHERY.P.O., KANNUR-670 601.** **10 K.MANIKKAM, W/O.LATE A.V.AMBADY, NEAR V.C.TEMPLE, KANHANGAD.P.O., KASARAGOD.** - **11 K.DEVI W/O.LATE GOVINDAN, RESIDING AT KONNANATTU HOUSE, POZHUTHANA.P.O., WAYANAD DISTRICT.** **..2/-** **..2..** **WP(C).No. 16341 of 2013** ## **12 KISHORE KUMAR** - **S/O.LATE H.VAMANAN, ALAMIPALLI, P.O.KANHANGAD, KASARAGOD.** ## **13 DAYANANDA.H.V,** - **S/O.LATE H.VAMANAN, ALAMIPALLI, P.O.KANHANGAD, KASARAGOD.** **BY ADV.SRI.P.C.SASIDHARAN** ## **RESPONDENT(S):** ## **1. UNION OF INDIA,** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, 2ND FLOOR, NEW DELHI CITY CENTRE-II, PARLIAMENT STREET, NEW DELHI-110 001.** ## **2. DEPUTY SECRETARY TO GOVERNMENT,** **MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, 2ND FLOOR, NEW DELHI CITY CENTRE-II, PARLIAMENT STREET, NEW DELHI-110 001.** ## **3. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **R1 TO R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV. SRI.S.KRISHNAMOORTHY, CGC R3 BY GOVERNMENT PLEADER SRI.JESTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2018, ALONG WITH W.P.(C)NO. 22700 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **02.08.2018** **WP(C).No. 16341 of 2013 (P)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **P1: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 1ST PETITIONER. P2: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 2ND PETITIONER. P3: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 4TH PETITIONER. P4: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 5TH PETITIONER. P5: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 6TH PETITIONER. P6: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 7TH PETITIONER. P7: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 9TH PETITIONER. P8: TRUE COPY OF THE STATE PENSION SANCTIONING ORDER ISSUED TO THE 12TH PETITIONER. P9: TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 25368/2005. P10: TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 37460/2007. P11: TRUE COPY OF THE JUDGMENT IN W.A.NO.148/2011. P12: TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 1ST PETITIONER. P12(A): TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 2ND PETITIONER. P12(B): TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 3RD PETITIONER. P12(C): TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 4TH PETITIONER. P12(D): TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 5TH PETITIONER. P12(E): TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 6TH PETITIONER. P12(F): TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO THE 7TH PETITIONER.** **WP(C).No. 16341 of 2013** |**P12(G):**|**TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO**| |---|---| ||**THE 8TH PETITIONER.**| |**P12(H):**|**TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO**| ||**THE 9TH PETITIONER.**| |**P12(I):**|**TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO**| ||**THE 10TH PETITIONER.**| |**P12(J):**|**TRUE COPY OF THE PENSION SANCTIONING ORDER ISSUED TO**| ||**THE 11TH PETITIONER.**| ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 02.08.2018** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).Nos.16341/2013 & 22770/2014 ================== Dated this the 25[th] day of July, 2018 ## **J U D G M E N T** The issues raised in these two Writ Petition (Civil) are common and hence these cases are disposed of on the basis of this common judgment. 2. The 13 petitioners in W.P(C)No.16341/2013 and the 2 petitioners W.P(C)No.22700/2014 state that they are freedom fighters, their widows or legal representatives, who belong to State of Kerala and who had actively participated in the Goa Freedom Movement (Phase-II), that took place in the year 1954-1955. The 3[rd] respondent-State Government, had from the commencement of the Kerala Freedom Fighters’ Pension Rules, 1971, as per Rule.6 thereof had ordered that the Goa Liberation Movement as one of the recognized movements for grant of Freedom Fighters’ Pension under the State Scheme. It is the case of the petitioners that the freedom fighters concerned in these cases were duly granted freedom fighters’ pension under the State Scheme by the 3[rd] respondent-Government of Kerala during various periods in 1970's to early 1980's. The Goa Freedom struggle was not recognized as an eligible movement in the _W.P.(C).16341/13 & cc._ - : 2 :- Central Scheme, 1972 or in the subsequent liberalised scheme as per the Swatantrata Sainik Samman Pension Scheme (SSS Pension Scheme, 1980), to be eligible for grant of Freedom Fighters’ pension scheme under the said Central Scheme. Much later, that the Union Cabinet had taken a policy decision on 04.02.2003 to award freedom fighters’ pension under the Central Scheme to all those freedom fighters who had been granted Freedom Fighters’ Pension under the respective State Scheme for the participation in the Goa Freedom Movement (Phase-II). Pursuant thereto, the competent authority of the Government of India, Union Ministry of Affairs had issued proceedings dated 21.12.2004, para.2 of which reads as hereunder: _“……….......…Goa Liberation Movement was recognised for the purpose of grant of Swatantrata Sainik Samman Pension. Pension has been granted to the freedom fighters of the Goa Liberation Movement who fulfilled the conditions of the SSSP Scheme, 1980. However, there were demands to grant pension to the participants of the II Phase of the Goa Liberation Movement (1954-55) by relaxing the eligibility criteria as its participants were never arrested, tried and punished by the Portuguese Government and or by the Martial Law Court, but were physically pushed back from Goa into the adjoining Indian Territories. No authentic record in respect of such participants is available. A decision, with the approval of the Cabinet, was taken on 04.02.2003 for grant of pension to those freedom fighters who took part in Phase-II of Goa Liberation Movement and are already drawing the State Pension from the Government of Maharashtra, Madhya Pradesh, Goa, Haryana, Rajashthan and Uttar Pradesh as on 1.08.2002. Since, the freedom fighters from Kerala are not receiving pension from the State Government. I regret that it is not possible to consider them eligible for_ _W.P.(C).16341/13 & cc._ - : 3 :- _grant of central pension in terms of the Scheme approved by the Government of India for the Goa Liberation Movement Phase II.”_ 3. It appears that the 1[st] respondent Union Government authorities had requested the various State Government concerned to forward the names of participants in Goa Freedom Movement (Phase-II) who have been duly awarded Freedom Fighters’ Movement under the respective State Scheme, so as to consider them for grant of pension under the Central Scheme. Only 6 States, comprising of the State of Maharashtra, Madhya Pradesh, Goa, Haryana, Rajasthan and Uttar Pradesh had responded by furnishing the list of such eligible pensioners as on 01.08.2002. The other remaining States including the State of Kerala had not responded. Therefore, in these circumstances, the Union Government authorities had taken the stand that State like the State of Kerala who had not responded, may not have any eligible participants in the said movement who were granted pension under the State Scheme. Certain freedom fighters who hailed from the State of Kerala and who had duly participated in the Goa Freedom Movement (Phase-II) and who were also recipients of Freedom Fighters’ Pension under the Kerala scheme, on being aggrieved by their exclusion from consideration for grant of pension under the Central Scheme, had _W.P.(C).16341/13 & cc._ - : 4 :- approached this Court by filing W.P.(C)No.3506/2006, wherein this Court had rendered judgment holding that there is no reason to distinguish the freedom fighters from one State to another who had participated in the Goa Liberation Movement and on that basis, the Government of Kerala was directed to forward the applications made by the petitioners therein for grant of benefit of the pension under the Central Scheme. It appears that the 3[rd] respondent-State Government had rejected the claims of the petitioners on the ground that they did not meet the general eligibility criteria laid down in the Central Scheme for grant of Freedom Fighters’ Pension. The State Government had also informed in their letter addressed to the 1[st] respondent-Union Government that the latter may ascertain whether the claimants had participated in the Goa Liberation Movement etc. Thereafter, the Central Government had again rejected the claim on the ground that the State of Kerala is not included in the list of States for grant of pension to the freedom fighters who had participated in the Goa Liberation Movement (Phase-II) and that the petitioners did not meet the eligibility criteria and the evidenciary requirements of the SSS Pension Scheme, 1980. Later, the State Government had issued another communication requesting the Central Government to grant pension under the Central Scheme. Since no further steps were _W.P.(C).16341/13 & cc._ - : 5 :- taken, the petitioners had formed an association to defend their interest and the said association and some of the individuals had approached this Court by filing W.P(C)No. 37460/2007 and W.P(C)No.17194/2008, in which this Court had rendered Ext.P-10 judgment on 24.11.2010. In Ext.P-10 judgment, this Court had conclusively found that both the grounds of rejection cited by the 1[st] respondent-Union Government are untenable. In view of the earlier judgment in W.P.(C)No.3506/2006, it was already held that the exclusion of State of Kerala from the eligibility zone is arbitrary and further that in view of the special decision taken by the Union Government in the matter of grant of pension under the Central Scheme to the participants in the Goa Liberation Movement (PhaseII), such claimants were not required to meet the general eligibility criteria and the evidential requirements for the grant of SSS Pension under the Central Scheme and that all what is required for them to establish is that the respective State Government had granted pension under the respective Freedom Fighters’ Pension under the respective State Scheme to the freedom fighter on account of his participation in the Goa Liberation Movement (Phase-II). In the light of these aspects, this Court set aside the impugned orders and had directed the 1[st] respondent-Union Government to disburse the _W.P.(C).16341/13 & cc._ - : 6 :- pension under the Central Scheme to the petitioners etc. The said Ext.P-10 judgment was challenged by filing Writ Appeal No.148/2011 before the Division Bench of this Court, which has dismissed as per Ext.P-11 judgment dated 10.03.2011. Thereafter, the 1[st] respondentUnion Government had taken up the matter in Special Leave Petition before the Apex Court, which was also dismissed. It is later that the competent authority among the 1[st] respondent-Union Government had issued Ext.P-12 series of orders granting pension under the Central Scheme to the claimants involved in these cases. However, the pension under the Central Scheme has been granted to the claimants herein only with effect from the respective sanction order. The petitioners would contend that since they are covered under Special Scheme which is quite distinct from the general Central Scheme, they are entitled for grant of pension under the Central Scheme from the date of receipt of their application and not from the subsequent date of sanction of the pension. In the light of these aspects, the petitioners had filed the above Writ Petitions. The prayers in W.P(C)No.16341/2013 are as follows: - _“i) Issue a writ of certiorari or any other writ, order or direction to quash the original of Exhibits-12 series to the extent it limit the SSS Pension only from the date of the sanctioning order;_ - _ii) Declare that the petitioners are entitled to receive SSS_ _W.P.(C).16341/13 & cc._ - : 7 :- _Pension from the date on which State pension was sanctioned or from the date of their respective applications and the action of the respondent in limiting the same only from the date of the order is highly unjust and illegal;_ _And_ _iii) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of this case.”_ The prayers in W.P(C)No.22700/2014 are as follows: - _“i) Issue a writ of certiorari or any other writ, order or direction to quash the original of Exhibits-P6 and P6(a) to the extent it limit the SSS Pension only from the date of the sanctioning order;_ - _ii) Declare that the petitioners are entitled to receive SSS Pension from the date on which State pension was sanctioned or from the date of their respective applications and the action of the respondents in limiting the same only from the date of the order is highly unjust and illegal;_ _And_ - _iii) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the_ circumstances of this case.” 4. Heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioners in these two cases, Sri.N.Nagaresh, learned Assistant Solicitor General appearing for respondents 1 & 2 and Sri.Jestin Mathew, learned Government Pleader appearing for R-3. 5. Out of the 13 petitioners in W.P.(C).No.16341/2013, except petitioners 3, 12 and 13, the others have produced the respective pension sanctioning orders as per Exts.P12 series of documents marked therein. The 3[rd] respondent State Government has filed a counter affidavit contending that, from their records it _W.P.(C).16341/13 & cc._ - : 8 :- appears that petitioners 12 and 13 in W.P.(C).No. 16341/2013 have not been granted pension under the Central scheme. The learned counsel appearing for the petitioners submits that petitioners 3, 12 and 13 in W.P.(C).No.16341/2013 have also been granted freedom fighters' pension under the Central scheme, but that they could not produce the documents in that regard before this Court. The two petitioners in W.P.(C).No.22700/2014 have produced respective pension sanctioning orders as per Exts.P-6 and P-6(a) respectively. According to the petitioners, they have been granted pension under the Central scheme only from the respective dates of orders issued by the 1[st] respondent Government sanctioning pension under the Central scheme. The petitioners would contend that in view of the special nature of the scheme, they are entitled, in law, to get pension at least from the date of receipt of their applications. 6. Sri.P.C.Sasidharan, learned counsel appearing for the petitioners submits that though there are decisions of the Apex Court as in _**Union of India & Anr. v. Kaushalaya Devi**_ , reported in (2007) 9 SCC 525, _**Union of India v. Kashiswar Jana**_ , reported in (2008) 11 SCC 309, _**Secretary to Government of India v. Sawinder Kaur & Anr.**_ reported in (2013) 14 SCC 789, etc. which hold that the claimants under the Central Scheme are eligible for pension under that scheme _W.P.(C).16341/13 & cc._ - : 9 :- only from the date of the sanction order or from the date of the court order granting such pension, and not from the receipt of the application and such dictum, is not applicable to the facts and circumstances of a case like the instant one, which is relatble to the participation in the Goa Liberation Movement (Phase II). The petitioners would contend that though the pension that is granted by the 1[st] respondent Union Government is under the Central SSS Pension Scheme, 1980, the general eligibility criteria and the evidentiary requirements relating to assessment of primary evidence and secondary evidence and the standards and parameters for submission of secondary evidence like issuance of personal knowledge certificate in the case of those remained underground or co-prisoners' certificates in the case of those who claimed actual jail imprisonment etc. are not in any manner relevant or relatable to the Central scheme framed by the 1[st] respondent Union Government in the case of participants in the Goa Liberation Movement (Phase II). That based on the Cabinet decision taken on 4.2.2003 and the consequential proceedings of the Government of India dated 21.12.2012 referred to herein above, all what is to be established by the claimant is that he has been granted pension under the respective States' scheme on account of his participation in the Goa Liberation _W.P.(C).16341/13 & cc._ - : 10 :- Movement (Phase II) and that once it is established that the claimant has been granted pension under the State scheme as aforestated that by itself would make him entitled and eligible for the grant of pension under the Central scheme. Whereas in all other cases covered by the general provisions in the Central SSS Pension Scheme, 1980, it has been clearly laid down therein that grant of pension under the State scheme by itself will not confer any right or eligibility or entitlement for grant of freedom fighters' pension under the said Central scheme and that the claimants will have to independently satisfy the norms as well as the standard of proof laid down in the said Central scheme. That it is only in a case where the claimant covered by the general scheme that the question of secondary evidence arises and that it is only in such cases that the abovesaid rulings of the Apex Court are applicable and that such pensioners are eligible for grant of freedom fighter's pension only from the date of sanction order and not from the date of receipt of their application, etc. Though various aspects on the merits on the matter have also been submitted by Sri.N.Nagaresh, learned Assistant Solicitor General appearing for the 1[st] respondent Union of India, this Court need not enter into the merits of the controversy in view of the nature of the orders that is to be proposed to be passed in these petitions. _W.P.(C).16341/13 & cc._ - : 11 :- However, it is to be taken note that it has been submitted by the learned Assistant Solicitor General, on the basis of the pleadings in the counter affidavit filed by the 1[st] respondent Union of India in these cases that all the participants of the Goa Liberation Movement (Phase II), who were granted pension under the Central scheme are from Maharashtra, Goa, Haryana, Rajasthan and Uttar Pradesh or any other States, and those pensioners have been granted pension only prospectively from the dates of their approval and has never been given such pension retrospectively from the date of receipt of their applications and as such, there is no question of any discrimination in that regard, etc. However, it appears that the abovesaid issues canvassed by the petitioners have not so far engaged the serious attention of the competent authority of the 1[st] respondent Union of India authorities concerned. 7. Moreover, the 1[st] respondent Union Government has not passed any considered order rejecting the claim of the petitioners for grant of pension from the date of receipt of their applications, presumably because the petitioners have not so far approached the competent authority of the 1[st] respondent Union Government with any such prayer that they should be granted pension under the scheme from the dates of receipt of their applications and not merely _W.P.(C).16341/13 & cc._ - : 12 :- from the dates of the sanction orders. Therefore, it is only in the fitness of things that this Court may not examine the merits of the issue at this stage of the matter and the matter could be remitted to the 1[st] respondent Union Government for their considered decision in that regard. Accordingly, it is ordered that it is for the petitioners to file their detailed representations claiming the abovesaid benefit. The petitioners should produce the respective sanction orders issued by the 1[st] respondent Union Government sanctioning them pension under the Central Scheme, in respect of each of the claimants concerned. The representations in that regard may be submitted by the petitioners within a period of six weeks from the date notified for receiving certified copy of this judgment. Thereafter, the competent authority of the 1[st] respondent Union Government will issue notice of hearing to the petitioners and a reasonable opportunity of being heard to them should be granted either in person or through their authorised representative or counsel, if any and a considered decision should be rendered by the 1[st] respondent Union Government on the abovesaid submissions of the petitioners. Orders in that regard should be passed by the 1[st] respondent without much delay, preferably within a period of six weeks from the date of completion of hearing as aforestated. The abovesaid contentions and submissions _W.P.(C).16341/13 & cc._ - : 13 :- made by the petitioners should be adverted to and considered by the 1[st] respondent before rendering a decision as aforesated. With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of. Sd/vgd. **ALEXANDER THOMAS, JUDGE** sdk+ ///True Copy/// P.S. to Judge