IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 19895 of 2011(J) -------------------------- PETITIONER(S): --------------- K.KARUNAKARAN, AGED 87 YEARS, KUNNEVELLI, KANNANKARA PO, THANNEERMUKKOM, CHERTHALA, ALAPPUZHA-688 527. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, (FREEDOM FIGHTER'S PENSION DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR, ALAPPUZHA-688 001. BY GOVT. PLEADER SRI. P.N. SANTHOSH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19895 of 2011 APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: A TRUE PHOTOCOPY OF THE APPLICATION UNDER KFFP SCHEME DATED 14.5.1981 SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P2: A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.12.1989, PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3: A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 18.11.1998, PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 10.11.2008, SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P5: A TRUE PHOTOCOPY OF THE NON AVAILABILITY CERTIFICATE ISSUED BY THE LEARNED CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA ON 14.5.1981. EXT.P6: A TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY SRI. P.K. CHANDRANANDAN, EX MLA, CERTIFYING THAT THE PETITIONER WAS A FREEDOM FIGHTER. EXT.P7 SERIES: THE TRUE PHOTOCOPIES OF THE PERSONAL KNOWLEDGE CERTIFICATES ISSUED BY THE SEVERAL PROMINENT FREEDOM FIGHTERS, CERTIFYING THAT PETITIONER HAD ACTIVELY PARTICIPATED IN THE FREEDOM STRUGGLE. EXT.P8: A TRUE PHOTOCOPY OF THE JUDGMENT DATED 30.4.2010 IN W.P.(C) No.27306/2009 OF THE HIGH COURT OF KERALA. EXT.P9: A TRUE COPY OF THE LETTER No.H2. 58177/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P10: A TRUE PHOTOCOPY OF THE SANCTION ORDER DATED 25.5.2010. EXT.P11: A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.10.2010, PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. KP/ P.R.RAMACHANDRA MENON, J. ------------------------------------- W.P.(C)No.19895 Of 2011 ------------------------------------------ Dated this the 29TH day of July, 2011 J U D G M E N T The petitioner approaches this Court with the following prayers. i. Declare that the petitioner is entitled to get freedom fighter's Pension with effect from the date of Ext.P1 application. ii. Issue a writ of mandamus or any other appropriate writ directing the 1st respondent to grand arrears of Pension amount from the date of Ext.P1 application till the date of order. iii. Issue a writ of mandamus or any other appropriate writ directing the 1st respondent to consider and take action on Ext.P11 representation on the basis of the dictum laid down by this Hon'ble Court in the matter of State of Kerala Vs. K. Raghavan reported in 2010 KHC 6238, without any further delay, by affording a reasonable opportunity to the petitioner or authorised representative. 2. As per Ext.P10 order dated 25.5.2010 passed by the 2nd respondent, freedom fighter's pension has been granted under the State Scheme. The case of the petitioner is that the freedom fighter's pension granted to the petitioner is only with effect from the date of Ext.P1 i.e., from 25.5.2010; which ought to have been granted with WPC.No.19895 of 2011 : 2 : effect from the date of the application, i.e., 14.5.1981 3. Heard the learned Govt. pleader as well. 4. Going by the admitted facts the petitioner has conceded that, even though the petitioner preferred Ext.P1 application in the year 1981, he thought it fit to move further only in the year 2009 by filing W.P.(C) 27306/2009 leading to Ext.P8 judgment passed on 9th March, 2010 and in turn Ext.P10 order passed by the 2nd respondent. 5. The petitioner contends that by virtue of his involvement in 'Punnapra-Vayalar Freedom Struggle', he happened to be arrayed as an accused in Case No.PE.8/1122 of the Special First Class Magistrate's Court, Alappuzha and an arrest warrant was issued against him. In order to evade the arrest, the petitioner had to remain under ground for a period of 9 months from 10.3.1122 M.E. to 9.12.1122 M.E. Subsequently, on declaration of the Scheme for payment of freedom fighter's pension, the petitioner made an application as per Ext.P1 on 14.5.1981. The claim was sought to be established based on 'secondary evidence' like NARC (Non Availability of Records Certificate), CPC (Co-Prisoners' Certificate), WPC.No.19895 of 2011 : 3 : PKC (Personal Knowledge Certificate) etc. and the pension stands granted accordingly, as per Ext.P10. 6. The crucial question to be considered is whether the petitioner is entitled to have pension with effect form the date of application or with effect from the date of the order. The law in this regard has already been settled by the Apex Court with regard to the payment of pension under the Central Scheme (Swathanthratha Sainik Samman Pension Scheme) as per the decision in Union of India and another Vs. Kaushalya Devi 2007 (9) SCC 525 holding that, if the claim is based on 'primary evidence' such as Jail Certificate, it has to be paid with effect from the date of application and if it is based on 'secondary evidence', like NARC, PKC, CPC etc., in can only be with effect from the date of Order. 7. Coming to the case in hand, there is no contention for the petitioner that the claim is based on any 'primary evidence'. Admittedly, the petitioner has not undergone any suffering in prison and no jail certificate has been produced. Consistent case is that the petitioner had to remain underground, so as to avoid the WPC.No.19895 of 2011 : 4 : arrest in connection with the case registered for participating in the freedom struggle. In the above circumstances, this Court finds that the issue is squarely covered by the Judgment of the Apex Court in Kaushalya Devi's case (cited supra) and the petitioner is entitled for pension only from the date of Ext.P10 order and not otherwise. 8. As mentioned already, after filing Ext.P1 application in 1981, the petitioner was relaxing in arm chair and chose to approach this Court only in the year 2009. Pursuant to Ext.P8 judgment dated 9.3.2010 the matter was considered by concerned authority, passing Ext.P10 order dated 25.5.2010. This Court finds no delay on the part of the 2nd respondent in giving the effect to Ext.P8 verdict. This being the position, petitioner can blame nobody else for the delay in seeking appropriate remedy at appropriate time. The writ petition fails and it is dismissed accordingly. P.R.RAMACHANDRA MENON, JUDGE. Kp/