IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 10843 of 2010(E) ---------------------------------------- PETITIONER(S): ----------------------- SMT. RETNAMMA, AGED 72, W/O. C.K.RAGHAVAN, PULLAMPARA VEETTIL, MUHAMMA.P.O., CHERTHALA, ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): -------------------------- 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, SECRETARIAT,THIRUVANANTHAPURAM. R1 BY ADV. MR.T.P.M. IBRAHIM KHAN, ASST. S.G. OF INDIA, ADV. SRI.V.E.ABDUL GAFOOR, ADDL.CGSC. R2 BY GOVT. PLEADER MR.V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 10843/2010-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION DATED 26/06/1998. EXT.P2: COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 28/04/1975. EXT.P3: COPY OF THE CERTIFICATE OF SRI.KUNJAN SUKUMARAN DATED 25/03/1998. EXT.P4: COPY OF THE ORDER OF THE DEPUTY SECRETARY, GOVERNMENT OF INDIA GRANTING PENSION TO SRI.SUKUMARAN DATED NIL. EXT.P5: COPY OF THE EXTRACT OF THE CONVICT REGISTER RELATING TO SRI.KUNJAN SUKUMARAN ISSUED BY THE SUPERINTENDANT CENTRAL PRISON, TRIVANDRUM DATED NIL. EXT.P6: COPY OF THE LETTER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA DATED 05/01/1999. EXT.P7: COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA DATED 08/01/2010. EXT.P8: COPY OF THE APPLICATION AND ORDER IN CASE NO.P.E.8/1122 M.E. DATED 12/06/2009, OF THE C.J.M. COURT, ALAPPUZHA. EXT.P9: COPY OF THE EXTRACT OF THE CONVICT REGISTER RELATING TO SRI.PANICKER SUKUMARAN ISSUED BY THE SUPERINTENDANT, CENTRAL PRISON, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE SALIENT FEATURES OF THE SWATANTRATA SAINIK SAMMAN PENSION SCHEME, 1980. //TRUE COPY// P.S. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 10843 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2010 J U D G M E N T The petitioner is the widow of a freedom fighter. She filed an application for pension under the Swatantrata Sainik Samman Pension Scheme, 1980 (for short “the Scheme”) for pension in respect of the underground sufferings of her husband Sri. C.K. Raghavan in the Indian independence struggle. The State Government did not recommend the petitioner's claim for pension. Pursuant thereto, by Ext.P7 order the petitioner's application for pension was rejected by the 1st respondent. Petitioner challenges Ext.P7 order seeking the following reliefs: “i. issue a writ of certiorari calling for the records relating to Ext.P7 and quash the same. ii. issue a writ of Mandamus directing the 2nd respondent to send the verification cum entitlement report relating to the Ext.P1 application with a positive recommendation to the first respondent and the first respondent may be directed to dispose of the application immediately thereafter.” W.P.(C)No. 10843 of 2010 -2- 2. A counter affidavit has been filed on behalf of the 1st respondent, which as the counter affidavits filed in similar cases is one prepared by the Ministry and not by the Central Government Counsel and contains no acceptable contentions except producing a document styled as “Salient Features of Swatantrata Sainik Samman Pension Scheme, 1980” as Ext.R1. Apparently their primary contention is that the Non Availability of Records Certificate produced by the petitioner is not acceptable. The relevant portion of Ext.P7 order which contains the grounds for rejection reads thus: (ii) In the absence of primary evidence, Non availability of Records Certificate (NARC) has to be issued by the State Government after making enquiries from all sources, who may have such records which establish the underground suffering of the applicant's husband. No such certificate has been issued by the State Government or the petitioner. On the other hand in order to circumvent the provision and establish the claim, the petitioner has enclosed certificate from Chief Judicial Magistrate Court, Alappuzha rejecting her request for records. This has been simply forwarded by State Government. NARC is based on application given by applicant, and there is no official confirmation from the State Government authorities to confirm the claimed underground sufferings. Hence this NARC is not acceptable. (iii) In case of underground suffering, the applicant is required to submit Personal Knowledge Certificates (PKCs) from a prominent freedom fighter who has proven W.P.(C)No. 10843 of 2010 -3- jail suffering of minimum two years and who happened to be from the same administrative unit. These PKCs are accepted along with the valid NARC. Since the petitioner has not produced valid NARC under the provisions of the Scheme, the PKCs are also not acceptable and cannot be the basis for sanction of pension. Even otherwise Shri Kunjan Sukumaran has been found to be issuing such certificates indiscriminately and the same cannot be relied upon. In any case, the PKCs cannot be accepted in the absence of the valid NARC. The secondary evidence has to be reliable enough to induce a reasonable belief that the applicant fulfills the conditions of the Scheme. The PKCs cannot be taken to be always genuine or conclusive proof for granting pension under the Central pension Scheme. Further, it cannot be denied that the PKCs can be obtained without much effort.” Two grounds are mentioned therein. First is that, the Non availability of Records Certificate (NARC) is not acceptable. The second is that, the Personal Knowledge Certificate (PKC) of Sri. Kunjan Sukumaran produced by the petitioner is not acceptable since he has been found to be issued such certificate indiscriminately and the same cannot be relied upon. 3. Going by the counter affidavit, the NARC should conform to the following form: “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.” W.P.(C)No. 10843 of 2010 -4- I have held earlier in other similar cases that no freedom fighter in this country can furnish such an NARC. The petitioner has already produced an NARC from the concerned Magistrate Court where according to the petitioner the case against the petitioner's husband during the freedom struggle was registered pursuant to which he went underground. I am of opinion that, the petitioner cannot do anything else other than producing such an NARC. Even otherwise as far as the Government records are concerned the Supreme Court and this court has again and again held that wherever records in respect of freedom fighters are to be obtained from the Government offices it is the duty of the Government to get the same. As such, I do not find any merit whatsoever in the ground for rejection of the NARC produced by the petitioner. Therefore I hold that, the NARC (Ext.P8) produced by the petitioner is sufficient for the purpose of claiming pension under the Scheme. 4. As far as the Personal Knowledge Certificate (PKC) is concerned, the only reason mentioned for rejecting W.P.(C)No. 10843 of 2010 -5- the same is that Sri. Kunjan Sukumaran who issued the PKC has been found to be issuing such certificates indiscriminately and the same cannot be relied upon. I do not think that, a claim of a widow of a freedom fighter can be rejected on such vague finding. The respondents have no case that Sri. Kunjan Sukumaran is not competent to issue a PKC and the petitioner has produced document to prove his competence (Ext.P9). The respondents have no case that the same is not acceptable. In the above circumstances, I do not find any merit in the ground in Ext.P7 for rejection of the PKC also. Therefore I hold that the PKC (Ext.P3) produced by the petitioner is sufficient for the purpose of claiming pension under the Scheme. 5. The result of the above findings is that the petitioner has sufficiently prover her eligibility for pension under the Scheme in respect of the underground sufferings of her husband Sri. C.K. Raghavan in the freedom struggle. Accordingly Ext.P7 is quashed. The 1st respondent is directed to disburse the freedom fighter's pension to the W.P.(C)No. 10843 of 2010 -6- petitioner for the underground sufferings of her husband during freedom struggle with effect from 05.01.1999, which is the date on which the application filed by the petitioner was received by the respondents. Arrears shall be paid within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/