IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 1551 of 2010(T) ------------------- PETITIONER : -------------------- P.K.FATHIMAKUTTY, AGED 73 YEARS, W/O.LATE A.MOHAMMAD KUTTY, PATTARKADAVAN HOUSE, P.O.PATTARKADAVU, MALAPPURAM DISTRICT, KERALA-676 519. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): -------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, F F DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL ADMINISTRATION, FFP-(A) DEPARTMENT, THIRUVANANTHAPURAM. R1 BY ADVS. SRI.T.P.M.IBRAHIM KHAN, ASGI SRI.P.PARAMESWARAN NAIR, ASGI SRI. T. SANJAY, CGC R2 BY GOVT. PLEADER SMT. SANJEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 1551 of 2010(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE DISCHARGE CERTIFICATE SHOWING DATE OF DISCHARGE AS 11.10.1946. EXT.P2 : COPY OF THE PROCEEDINGS DATED 14.12.1989 OF THE DISTRICT COLLECTOR, MALAPPURAM. EXT.P3 : COPY OF LIST OF RECOGNISED MOVEMENTS / MULTINIES RECOGNISED FOR SWATANTRATA SAMMAN PENSION. EXT.P4 : COPY OF APPLICATION DATED 12.5.1987 PREFERRED BY PETITIONER. EXT.P5 : COPY OF COMMUNICATION DATED 04.1.1991 FROM CIVIL GAZETTED OFFICER/STAFF OFFICER (RECORDS) FOR COMMODORE. EXT.P6 : COPY OF LETTER DATED 25.1.1991 ISSUED BY THE HUBBAND OF PETITIONER. EXT.P7 : COPY OF LETTER DATED 12.4.1991 ISSUED FROM THE NAVAL HEAD QUARTERS NEW DELHI. EXT.P8 : COPY OF LETTER DATED 20.3.1997 FROM ZILLA SAINIK WELFARE OFFICER. EXT.P9 : COPY OF THE LIST OF SAILORS WHO WERE GRANTED FREEDOM FIGHTERS PENSION THOUGH THEY DID NOT PARTICIPATE IN THE MUTINY. EXT.P10 COPY OF LETTER DATED 6.1.1988, ALONG WITH EXTRACT CONTAINING NAMES OF FREEDOM FIGHTERS APPROVED BY THE MINISTRY OF DEFENCE. EXT.P11 COPY OF JUDGMENT DATED 20.3.2009 IN WP(C) 29039/2005. EXT.P12 COPY OF COMMUNICATION DATED OCTOBER, 2009. RESPONDENT'S EXHIBITS : EXT. R-1 : PHOTOCOPY OF THE SALIENT FEATURES OF THE SWATANTRATA SAINIK SAMMAN PENSION SCHEME, 1980. //TRUE COPY// P.A. TO JUDGE Mn ANTONY DOMINIC, J ....................................................... W.P.(C).1551/2010 .............................................. Dated this the 7th day of December, 2011 JUDGMENT Petitioner is the wife of late A.Mohammad Kutty. This writ petition has been filed by the petitioner aggrieved by the orders issued by the respondents rejecting her claim for freedom fighters' pension under the Swatantrata Sainik Samman Pension Scheme, 1980, (SSS Pension Scheme). 2. The pleadings in the writ petition are to the effect that the petitioner's husband, Mohammad Kutty, joined the Royal Indian Navy on 30.1.1944, volunteering to serve for ten years. He was to serve in ship H.M.I.S.Kumaon and his Official Number was 25363 - R.I.N. It is stated that in 1946, when the Royal Indian Navy mutiny broke out, the deceased participated in the mutiny and in revenge, the British Government kept the petitioner's husband under detention at a detention camp at Mulland near Mumbai, where he was under detention for 4 ½ months from 20.3.1946 to 30.7.1946. It is also stated that on 11.10.1946, the deceased was discharged from Navy, and Ext.P1 is the discharge certificate. W.P.(C).1551/10 2 3. The averment in the petition is that during the discharge, in order to prevent other nations from knowing about the mutiny in the British Navy, the Officers opted to use rubber stamps of showing different reasons for release such as 'discharged', 'released', 'resigned', 'service no longer required', 'excess to requirements' etc. Suffice it to say, in Ext.P1 discharge certificate, reason for discharge of the petitioner's husband was shown as 'Excess to requirements'. 4. Although initially the Royal Indian Navy mutiny was not recognized as a freedom struggle as an eligibility for the benefit of Ext.P1 Scheme, when Ext.P3 was issued by the Government of India, the mutiny was also recognized as one of the freedom struggles rendering the participants eligible for pension. Further, in the pension Scheme freedom of the Kerala State mutiny was also recogninsed as a freedom struggle and on an application made by the petitioner's husband, the pension was granted. 5. Claiming the benefit of the pension Scheme, petitioner's husband submitted Ext.P4 application on 12.5.1987. Subsequently he breathed his last on 28.3.2001. Still later, since there was no progress, petitioner approached this Court by filing W.P.(C). W.P.(C).1551/10 3 29039/2005. By Ext.P11 judgment rendered on 20.3.2009, this Court disposed of the writ petition directing that a decision on the application be taken on merits. Accordingly, the Government of India considered the claim and issued Ext.P12. Insofar as the cases arising out of the Royal Indian Navy mutiny of 1946 is concerned, it is stated that only the following cases were considered for pensionery benefit - (i). Naval ratings dismissed (ii). Naval ratings discharged as 'Service no longer reuired (SNLR) (iii). Naval ratings discharged as 'unsuitable'. 6. Proceeding further, the claim of the petitioner has been rejected with the following order. After examination of the claim, it is found that Smt.P.K.Fatimakutty is not eligible for grant of dependent family pension due to the following shortcomings/discrepancies: i. The petitioner does not fulfill the eligibility criteria. As regards participation in RIN Mutiny, she has furnished a copy of discharge certificate. However, it is not verified by the State Government, competent authority, hence cannot W.P.(C).1551/10 4 be relied upon. Further, the said document is not thoroughly legible. The petitioner had annexed a copy of the aforesaid document with the Writ Petition No.29039/2005. As per the information gathered from it, the husband of the petitioner was among the category of sailors who were released due to surplus to requirement. This category of Naval ratings, who were discharged under the clause 'Excess to requirement' - Class A and as a result of general immobilization of Forces under World War II, has not been recognized for pension under the SSS Pension Scheme, 1980. ii. Undertrial suffering from 20.3.42 to 30.7.46 also does not make her eligible as period is less than 6 months. The undertrial should have resulted in conviction, only then it is calculated in sufferings. No confirmation regarding conviction is there. (iii). The mandatory verification cum entitlement to pension report in respect of the petitioner's claim has not been received in the Ministry. The recommendation of the State Government is a prerequisite to consider othe claim under the Scheme. As such the claim of the petitioner for dependent family pension cannot be acceded to. In view of the above, the claim of the petitioner does not meet the eligibility criteria and W.P.(C).1551/10 5 evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. It is, therefore, regretted that it is not possible to accept her claim for grant of pension under the Swatantrata Sainik Samman Pension Scheme. Hence the same is hereby rejected. The petitioner may be informed of the decision accordingly. 7. It is challenging Ext.P12 and also seeking a declaration that the petitioner is eligible for dependent pension, the writ petition is filed. 8. A counter affidavit has been filed by the first respondent wherein they reiterate that the petitioner was discharged under the clause 'Excess to requirement - class A' and as a result of general immobilization of forces under the World War II, it is stated that this category has not been recognized for pension under the Pension Scheme. 9. In the counter affidavit filed by the State Government, it is stated that since the petitioner's husband does not fall under any of the eligible categories, they did not recommend the case for pension to the Central Government. W.P.(C).1551/10 6 10. Heard the learned counsel appearing on both sides and considered their submissions. 11. The common reason urged by the respondents for contending that the petitioner's husband was ineligible, is that his discharge was for the reason 'Excess to requirement' class -A. In my view, the members of the Royal Indian Navy who were discharged on dismissal, or on the basis that their service is no longer required or on the ground of unsuitability, are treated eligible for pension, there is absolutely no rationale in excluding a category for the reason that those persons were discharged as 'Excess to requirements'. 12. Although it is permissible for the first respondent to classify the eligible categories of persons for the benefit of pension, such classification should be reasonable and should have an object to be achieved. In this case, while, it is the common case that persons discharged from Royal Indian Navy following the mutiny, are eligible, and only one category is rendered ineligible and unless such categorization have a proper reasoning, it is difficult for this Court to approve such a discriminatory treatment. W.P.(C).1551/10 7 13. In the counter affidavit filed, no reason whatsoever has been assigned to justify such a discriminatory classification of one class of discharged persons like the deceased husband of the petitioner. Therefore, I am inclined to think that the exclusion of those discharged as 'Excess to requirements', is absolutely illegal. Such persons are also, in my view, entitled to be treated equally with the other three categories of personnel who were dismissed finding unsuitable or who were discharged as their service was no longer required. Once it is held that exclusion of category of persons who were discharged as 'Excess to requirements' are also entitled to be treated equally with the other three categories who were held eligible for the benefit of freedom fighters pension under the Pension Scheme, necessary consequences is that refusal of the State Government to recommend the case of the petitioner to the first respondent and the rejection by the first respondent as per Ext.P12, should be held illegal. 14. Therefore, I dispose of this writ petition with the following directions. (i). It is declared that the petitioner's husband, who was discharged from the Royal W.P.(C).1551/10 8 Indian Navy on the ground of 'Excess to requirements' will also be treated along with the other categories of Royal Indian Navy dischargees who were treated eligible for the benefit of Pension Scheme, 1980. (ii).It is directed that on receipt of a copy of this judgment, the second respondent will reconsider the application made by the petitioner and forward appropriate recommendation to the first respondent. This the second respondent shall do, as expeditiously as possible, at any rate, within three months. (iii). On receipt of the recommendation as above, the first respondent will reconsider the application and pass appropriate orders in the light of the Pension Scheme, 1980. This shall be done within thee months thereafter. (iv). In order to enable the reconsideration of the matter as above, Ext.P12 will stand quashed. ANTONY DOMINIC, Judge mrcs /true copy/ P.A. To Judge