IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 3144 of 2008(Y) ------------------------------------ PETITIONER: ------------------- M.PADMAKSHY, AGED 78, W/O.A.K.PARAMAN, PADMALAYALAM, VAYALAR, KALAVAMKODOM P.O., CHERTHALA. BY ADV. SRI.J.OM PRAKASH. RESPONDENTS: ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. R1 BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA, SHRI.GHOSH YOHANNAN, CGC, R2 BY GOVERNMENT PLEADER SRI. K. SANILKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3144/2008-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 06/01/72. EXT.P.2: COPY OF THE APPLICATION OF THE PETITIONER DTD. 08/07/98. EXT.P.3: COPY OF THE CERTIFICATE OF SRI. T.V. THOMAS, MINISTER FOR INDUSTRIES DTD. 09/10/72. EXT.P.4: COPY OF THE LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 21/07/2001. EXT.P.5: COPY OF THE REPRESENTATION OF THE PETITIONER DTD. 19/12/2007. EXT.P.6: COPY OF THE CERTIFICATE OF SRI. P.A. SOLOMON EX.M.P. DTD. 10/08/2005. EXT.P.7: COPY OF THE CERTIFICATE OF THE TAHSILDAR, CHERTHALA DTD. NIL. EXT.P.8: COPY OF THE POSTAL RECEIPT DTD. 21/12/2007. EXT.P.9: COPY OF THE NARC ISSUED BY THE SUPERINTENDENT SPECIAL SUB JAIL ALAPPUZHA DT. 12/02/2009. EXT.P.10: COPY OF THE REPRESENTATION DTD. 15/06/2009. EXT.P.11: COPY OF THE LETTER DT. 02/08/2008 OF ADDL. CHIEF SECRETARY. EXT.P.12: COPY OF THE LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA INVITING THE PETITIONER'S HUSBAND TO THE DISTRICT ADVISORY COMMITTEE DTD. 20/04/1978. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.3144 Of 2008 ----------------------------------------------------- DATED THIS THE 7th DAY OF OCTOBER, 2010 J U D G M E N T The petitioner is the widow of late Shri A.K.Paraman, who was an active participant of the Punnapra-Vayalar Struggle. It is stated that he was an accused in Case No.P.E.10/1946 before the Special Magistrate Court, Alappuzha and accordingly he was arrested and was lodged in the Cherthala Lock Up and Sub Jail, Alappuzha (Defunct lock-up) for 18 months from October, 1946 to 1948. 2. The petitioner's late husband was granted pension under the Kerala Freedom Fighter's Pension Rules which is evident from Exhibit P1 order passed by the District Collector. The application for Swantrata Sainik Samman Pension Scheme is produced as Exhibit P2 and by Exhibit P11, the Government refused to recommend the same. The reasons for not recommending the same are that in the Personal Knowledge Certificate of Shri P.A.Solomon, the case number is not mentioned. Moreover, he has only 11 months imprisonment and he is not an eligible certifier. The petitioner has not produced the W.P.(C)No.3144/08 -2- Non-availability of Records Certificate (NARC) from the State Government. 3. It is pointed out by the learned counsel for the petitioner that the letter Exhibit P3 from late Shri T.V.Thomas, Ex-Minister for Industries, will prove that the petitioner's late husband was arrested in October 1946 and was kept in police custody at Cherthala and Alappuzha Sub Jail. The Case No., PE.10/46 is clear from Exhibit P7 report also. 4. As directed by this Court, the learned Government Pleader has made available the original files maintained by the Collectorate, Alappuzha, with respect to Exhibit P7. Evidently, the Tahsildar has reported the facts after due verification and local enquiries and the same cannot also be ignored. 5. The objection raised is with regard to the absence of the Case Number in Exhibit P6 certificate issued by Shri P.A.Solomon. But the same is clear from the report of the Tahsildar, Exhibit P7, which is mentioned by the Government itself in Exhibit P11. Therefore, non-mentioning of the same in Exhibit P6 cannot be said to be fatal, because of the evidence available - that he was involved as an accused in PE.10/46- from another authentic W.P.(C)No.3144/08 -3- source, namely a competent authority like the Tahsildar. 6. The other objection is that the certifier has only 11 months imprisonment and he is not an eligible certifier. The said issue is covered by a decision of this Court in Lennyamma v. Union of India and others (2009(2) KHC 746). Paragraph No.6 of the judgment reads as follows: “6. In the first condition the applicant shall produce a Co-prisoner's Certificate, who had a proven jail suffering of one year. If such certificate is not available, the other option is given to the applicant, i.e., 2nd condition extracted above. By that condition one Co-prisoner's certificate from a sitting MP or MLA or from an Ex-MP or Ex-MLA specifying his jail period and that of the applicant shall be produced. There is difference between the two conditions mentioned above. In the 2nd condition the period of stipulation of minimum period of one year is absent, instead the MP or MLA or Ex-MP or Ex-MLA are directed to specify the jail period and that of the applicant. Therefore, it is very clear that the minimum period of one year imprisonment is applicable only in the case of certificates issued by other persons other than MP or MLA or Ex-MP or Ex-MLA. The Scheme stipulates certificate from MPs or MLAs, but there is no condition that MP or MLA should have undergone imprisonment for a minimum period of one year. It is also noticed that in case of recipient of pension under the very W.P.(C)No.3144/08 -4- same scheme by the certifier, there is no necessity for the applicant to produce any other documents in order to show that the certifier had undergone imprisonment. If he is recipient of central pension that itself go to show that he had undergone imprisonment for minimum period of not less than six months.” Recently also this Court in Devaki v. Union of India (2010 (3) KHC 823) has reiterated the said position. 7. Further objection is with regard to the NARC, which has been produced by the petitioner. Exhibit P9 is the NARC from the Sub Jail, where the petitioner's husband was lodged. As regards the NARC issued from the jail authorities also the issue is covered in favour of the petitioner by the decision in Lennyamma's case (supra)wherein in paragraph No.3, it was held thus: “3. Clause 9 of the Scheme stipulates the production of NARC from one of the 3 authorities namely, Jail Authorities, District Magistrates or the State Government. The insistence of NARC from the State Government in paragraph 5 of Ext.P9 order cannot stand, in view of the provisions of the Scheme. When the three authorities are conferred with power to issue certificates, the Central Government has no authority to insist that the applicant should produce a certificate W.P.(C)No.3144/08 -5- from the State Government. It is the duty of the NAR Certifier certifying Non-Availability of Records. Before issuing such certificate the authority should ensure that the records are not available in any office maintained by the State Government in connection with the detention of the applicant. The details regarding the detention of the applicant are usually maintained in the offices of jail, District Collector, Superintendent of Police, State Government, etc. The duty of one of the authorities is to issue certificate after ensuring that no records are available in respect of the details regarding the detention of the applicant. ...........” I respectfully agree with the same. In that view of the matter the NARC produced by the petitioner will be treated as valid. 8. The learned counsel for the petitioner submitted that the late husband of the petitioner was a prominent freedom fighter, which is evident from Exhibit P12, which is a notice issued from the Collectorate to the various members of the Committee inviting them to the District Advisory Committee, Alappuzha, and the petitioner's late husband's name also figures therein. Therefore, that also evidences the fact that the petitioner's late husband was a prominent freedom fighter. A copy of Exhibit P12 will be produced by the petitioner before the W.P.(C)No.3144/08 -6- Government along with the copy of this judgment. 9. In that view of the matter, Exhibit P11 is quashed. There will be a direction to the Government to reconsider the matter and forward the appropriate verification-cum-entitlement report to the Central Government within a period of six weeks from the date of receipt of a copy of this judgment. The Central Government will thereafter consider the application in accordance with the scheme and pass final orders within a further period of four months. The entitlement of the petitioner for payment of arrears from the date of receipt of the application shall also be considered by the Central Government. The Writ Petition is allowed as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn