IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 WP(C).No. 20229 of 2009(W) -------------------------- PETITIONER(S): ------------------------- A.GOPALAN NAIR, AGED 73 YEARS, S/O.MAVILA RAMAN NAMBIAR, RESIDING AT KARIAKOCHI, POST HARIPURAM, HOSDURG TALUK, KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL ADMINISTRATION DEPARTMENT (FFPB), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KASARGOD. 3. THE TAHASILDAR, KASARGOD. GOVERNMENT PLEADER SMT. SMITHA SUKUMAR FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kp W.P.C No.20229 OF 2009 APPENDIX PETITIONER'S EXHIBIT: EXT.P1: TRUE COPY OF THE CERTIFICATE DATED 13.1.2001 ISSEUD BY A CO-PARTICIPANT DR. AMMEMBALA BALAPPA. EXT.P2: TRUE COPY OF THE CERTIFICATE ISSEUD BY A CO-PARTICIPANT DR. AMMEMBALA BALAPPA. EXT.P3: TRUE COPY OF THE REPRESENTATION DATED 4.10.2001. EXT.P4: TRUE COPY OF THE NEWS ITEM CONCERNING THE PLIGHT OF THE PETITIONER PULISHED IN THE MALAYALA MANORAMA DAILY DATED 26.8.2004. EXT.P5: TRUE COPY OF THE LETTER DATED 17.7.2005. EXT.P6: TRUE COPY OF THE JUDGMENT DATED 21.2.2006 IN W.P.C.No.5139/06. EXT.P7: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF THE GOVERNMENT ORDER DATED 28.9.2005. EXT.P9: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPNDENT. EXT.P9(a): TRUE COPY OF THE ORDER DATED 28.1.2009 IN W.P.C.No.IN THE 17485 OF 2006. EXT.P10: TRUE COPY OF THE REPORT UNDER REF No.DIS.IR.728/2002-03 (TRANSLATED IN ENGLISH) SUBMTTED BY THE REVENUE INSPECTOR BEFORE THE TAHSILAR, BANTWAL TALUK. EXT.P11: TRUE TRANSLATED COPY OF THE STATEMENT OF DR. BALAPPA REECORDED BY THE REVENUE INSPECTOR. EXT.P12: TRUE COPY OF LETTER DATED 24.12.2002. EXT.P13: TRUE COPY OF THE MINUTES OF THE SAID MEETING HELD ON 16.6.2003. EXT.P14: TRUE COPY OF THE DOCUMENT No.979 OF 1961 OF SRO KASARGOD. EXT.P15: TRUE COPY OF THE JUDGMENT IN R.P.No.716/2009. EXT.P16: TRUE COPY OF THE APPLICATION DATED 28.6.2010. EXT.P17: TRUE COPY OF THE STATEMENT DATED 17.7.2010 ISSUED BY THE PUBLIC RELATION OFFICER. RESPONDENTS' EXHIBIT: NIL S.SIRI JAGAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C) No. 20229 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15 th day of March , 2011 J U D G M E N T The petitioner claims to be a freedom fighter who participated in the Goa Liberation struggle, which is an approved national movement for the purpose of grant of Kerala Freedom Fighters' Pension. He submitted an application for pension. The same was rejected by Ext. P8 order on the ground that petitioner has not produced any satisfactory material to prove his eligibility for Freedom Fighters' Pension. According to the petitioner, the petitioner has produced documents to prove that he has participated in the freedom struggle and that he had undergone imprisonment for the participation in the freedom struggle. Therefore, the petitioner submits that he is eligible for Freedom Fighters' Pension. Petitioner contends that the claim for Freedom Fighters' Pension is to be considered not on the basis of meticulous evaluation of documentary evidence submitted in support of the claim and that the scheme postulates only the satisfaction on facts and circumstances that the WPC.No.20229 of 2009 : 2 : claimant was a participant in the freedom struggle and suffered in the freedom struggle. Petitioner therefore submits that he should have been granted Freedom Fighters' Pension based on the materials he had already produced. 2. Counter affidavits have been filed by respondents 1 and 2. According to them, an application for Freedom Fighters' Pension should satisfy the conditions in the Kerala Freedom Fighters' Pension Rules, 1971. They would submit that the petitioner has not produced any reliable material to satisfy the conditions for grant of Freedom Fighters' Pension as stipulated in the Kerala Freedom Fighters' Rules. Therefore, the petitioner is not entitled to the benefits of the Rules, is their contention. 3. The petitioner has filed a reply affidavit seeking to contradict the averments in the counter affidavit. 4. I have considered the rival contentions in detail. Freedom fighters' pension is governed by the Kerala Freedom Fighters' Pension Rules. Although as rightly pointed out by the petitioner, the materials produced by an applicant claiming Freedom Fighters' Pension cannot be assessed on a meticulous evaluation of WPC.No.20229 of 2009 : 3 : the documentary evidence, but still the applicant has to prove, with some reliable evidence, that he comes within the purview of those Rules. Rule (4) of the Rules defines who is a freedom fighter for the purpose of the rules. The same reads as follows: “4. In these rules, a Freedom Fighter means any person who on account of participation in the National Movement; a) had been sentenced to imprisonment for not less than six months; or b) had been kept under detention (including detention as under-trial prisoner for not less than six months; or c) was killed in action; or d) was sentenced to death; or e) died due to police or military firing or lathi charge; or f) lost his/her job or means of livelihood or the whole or substantial part of his/her property; and g) became permanently incapacitated due to such participation or affected with grave disease for life. Note to rule 4:- Deserving and hard cases in which pension cannot be granted because the periods of incarceration falls short of six months may be reported to Government by the District Collector for decision.” Therefore, an applicant for Freedom Fighters' Pension should, necessarily, with some material on record, show that he comes WPC.No.20229 of 2009 : 4 : within any of the Sub Rules of Rule (4). Merely because a person has participated in the Freedom Struggle and undergone some suffering he will not be eligible for Freedom Fighters' Pension unless he comes within any of the said clauses of Rule (4). It is true that in Ext.P1, a Freedom Fighter had certified that the petitioner had participated in the Goa Struggle. It is also true that in Ext.P2 a co- prisoner had certified that the petitioner had undergone imprisonment on account of his participation in Goa Freedom Struggle. But, these documents do not prove that the petitioner had been sentenced to imprisonment for not less than six months or that he had been kept in detention including the detention as under-trial prisoner for not less than six months, either of which the petitioner should prove to become eligible for Freedom Fighters' Pension. In so far as the petitioner could not satisfy this Court that the documents produced by him proves either (a) or (b) of Rule 4(a) however much I sympathise with the petitioner, I cannot direct the respondents to sanction Freedom Fighters' Pension to the petitioner. 5. The petitioner heavily relies on Ext.P17 information obtained by him by resort to proceedings under the Right to WPC.No.20229 of 2009 : 5 : Information Act, wherein two persons namely, one K.V. Narayanan and one Karthambu Mesthiri who had undergone imprisonment only for two days and one day respectively were given Freedom Fighters' Pension. Even assuming that the information in Ext.P17 is correct, I do not think that because of that the petitioner can be sanctioned pension in so far as at the most grant of Freedom Fighters' Pension to those persons would only be illegal. Simply because of an irregularity committed by the respondents in favour of two persons, I cannot direct the respondents to perpetuate that illegality by sanctioning Freedom Fighters' Pension to others, who do not satisfy the conditions of Freedom Fighters' Pension Rules. Accordingly, this writ petition is dismissed. (S.SIRI JAGAN, JUDGE) kp