IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD FEBRUARY 2009/ 14TH MAGA 1930 WP(C).No. 4665 of 2007(E) ------------------------------------- PETITIONER: ------------------- LENNYAMMA, W/O. LATE POWLEENJU ACHAPPAN, VELUTHA MANNUNKAL, CANAL WARD, ARYAD SOUTH, ALAPPUZHA, NOW RESIDING AT POLAKKAD HOUSE, THIRUMALA WARD, ALAPPUZHA-11. BY ADV. MR.S.SANAL KUMAR. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ALAPPUZHA. R2 & R3 BY GOVT. PLEADER MR. THOMAS JOHN AMBOOKEN, R1 BY MR.T.SANJAY, CGC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON 03/02/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.4665/2007-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. R.DIS.28875/72/F6 DTD. 31/12/1973. EXT.P.2: COPY OF THE APPLICATION FOR GRANT OF PENSION UNDER THE SWATHANTHRA SAINIK SAMMAN PENSION SCHEME DTD. 16/06/1998. EXT.P.3: COPY OF THE CO-PRISONER CERTIFICATE OF EX. M.P. SRI. P.A. SOLOMON DTD. 15/03/2001. EXT.P.4: COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDENT, SUB JAIL, ALAPPUZHA DTD. 09/08/1973. EXT.P.5: COPY OF THE CERTIFICATE ISSUED FROM THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA DTD. 22/02/2001. EXT.P.6: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 36127/2001 DTD. 19/06/2003. EXT.P.7: COPY OF THE COMMUNICATION OF UNDER SECRETARY TO THE GOVERNMENT OF INDIA TO THE ADDL. SECRETARY TO GOVERNMENT OF KERALA DTD. 28/01/2004. EXT.P.8: COPY OF THE ORDER SANCTIONING PENSION DTD. 31/01/2005. EXT.P.9: COPY OF THE ORDER OF THE R.1. DTD. 27/12/2006. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.4665 OF 2007 ---------------------------- DATED THIS THE 3RD DAY OF FEBRUARY, 2009 JUDGMENT Petitioner is the widow of Sri Pouleenju Achappan. It is averred that her husband was a freedom fighter, who had participated in the Punnapra-Vayalar freedom struggle. According to the petitioner, her husband had undergone imprisonment in Sub Jail lock up, Alappuzha for the period from November, 1946 to September, 1947 in connection with Case No.PE 7/1945/1122 ME and as such he is entitled to get the benefit of “Swatantrata Sainik Samman Pension” (SSS Pension). 2. Petitioner's husband is a recipient of State Pension with effect from 1-4-1971. Ext.P1 is the order sanctioning the State Pension. Ext.P2 is the application submitted by the petitioner for grant of pension under the SSS Pension Scheme. Ext.P3 is the co- prisoner certificate issued by Sri P.A.Solomon, Ex-MP. Ext.P4 is the NARC issued by the Jail Authorities. Petitioner has -2- W.P.(C).No.4665/2007 approached this Court twice for reliefs. Ultimately, the Central Government passed Ext.P8 order sanctioning the pension under the said scheme. Ext.P8 is the order dated 3rd February, 2005. But subsequently, the Central Government re-considered the grant of pension to the petitioner and issued Ext.P9 order dated 27/12/2006 suspending Ext.P8 order pending final decision of the case. The reasons for passing Ext.P9 order are (1) that the applicant has not furnished a valid Non-Availability of Records Certificate (NARC) from the State Government containing all ingredients prescribed therefor and (2) that the NARC issued by the Superintendent, Sub Jail, Alappuzha and copy of arrest warrant issued by the Court of the Chief Judicial Magistrate, Alappuzha, are not NARCs as these do not have all the ingredients prescribed as per the requirements under Rules and have not been furnished by the competent authority, i.e. the State Government. 3. Clause 9 of the Scheme stipulates the production of -3- W.P.(C).No.4665/2007 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 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. The 2nd -4- W.P.(C).No.4665/2007 reason stated in Ext.P9 is that the detention particulars issued by the Superintendent, Sub Jail, Alleppey and copy of arrest warrant issued by the Court of the Chief judicial Magistrate, Alappuzha are not NARCs, as they do not have all the ingredients prescribed as per the requirement under the Rules and have not been furnished by the competent authority; i.e. the State Government. As already stated, NARC is a certificate issued by one of the three authorities mentioned in Clause 9(a) of the Scheme. The Central Government is bound to accept such certificate issued by one of the authorities mentioned in Clause 9(a). 4. On issuing such certificate it is presumed that necessary enquiries regarding Non-Availability of records by the certifier from all sources. This document is further subjected to scrutiny and verification by the State Government before forwarding necessary verification reports and entitlement to pension reports under Clause 10 of the scheme. -5- W.P.(C).No.4665/2007 So, the Central Government shall accept the certificate issued by the competent authority in the prescribed form. Prim facie reasons stated for suspending the petitioner's pension is not sustainable in law. This Court elaborately considered the procedure to be followed and the acceptable documents in W.P.(C).No.15250/2005. 5. The learned Central Government Standing Counsel relied on Sub clause viii of clause 1 of Appendix B1 attached to the SSS Pension Scheme, 1980 dated 15th August, 1981 and submitted that the certifier, whether he is a co-prisoner or sitting MP or MLA or Ex-MP or Ex-MLA, should have undergone minimum one year imprisonment in connection with the freedom struggle and therefore the certificate issued by P.A. Solomon, Ex-MP is not acceptable. The learned counsel also pointed out the relevant provision which states that in the absence of NARC from the concerned authorities along with co-prisoners' certificates (CPC) as under: -6- W.P.(C).No.4665/2007 i) Two o-prisoners' Certificates from the freedom fighter pensioners who had proven jail suffering of one year. ii) One Co-prisoners' certificate from a sitting MP or MLA or from an ex-MP or an ex-MLA specifying his jail period and that of the applicant (Annexure-1 in the application form). 6. In the first condition the applicant shall produce a Co-prisoners' 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 -7- W.P.(C).No.4665/2007 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 under gone imprisonment for a minimum period of one year. It is also noticed that in case of recipient of pension under the very 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 under gone imprisonment for a minimum period of not less than six months. 7. In the result, Ext.P9 is quashed. The petitioner is at liberty to submit an explanation before the State Government -8- W.P.(C).No.4665/2007 within two months today, if not already submitted. The State Government shall forward the verification report and entitlement to pension report (recommendation) to the Central Government, if he is found eligible within a period of two months from the date of receipt of a copy of this judgment. On receipt of such reports, the Central Government shall pass appropriate orders within a period three months thereafter. It is needless to say that the petitioner is entitled to arrears of pension from the date of receipt of application, in case the petitioner is entitled to SSS Pension. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.