IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 17075 of 2007(G) --------------------------------------- PETITIONER: ------------------- K.PRABHAKARAN, PULIYAMPALLIL HOUSE, MANAKKODAM, THIRUMALA BHAGOM P.O. THURAVOOR, CHERTHALA TALUK, ALAPPUZHA DT. BY ADV. SRI.K.K.SATHISH. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVT., GENERAL ADMINISTRATION (FFP.B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. R1 & R2 BY GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17075/2007-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER NO. D. DIS. 44504/98/H4 DT. 14/12/1999 ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.2: COPY OF THE APPLICATION DTD. 17/02/2000 SUBMITTED BY THE PETITIONER. EXT.P.3: COPY OF THE PKC ISSUED BY SRI. V.K. VISWANATHAN DTD. 18/08/2001. EXT.P.4: COPY OF THE ENQUIRY REPORT OF THE TAHSILDAR, CHERTHALA DTD. 09/04/2001. EXT.P.5: COPY OF THE JUDGMENT DTD. 24/03/2004 PASSED BY THIS HONOURABLE COURT IN O.P. NO. 13139/2003. EXT.P.6: COPY OF THE LETTER DTD. 14/07/04 ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.7: COPY OF THE JUDGMENT DT. 05/10/06 OF THIS HONOURABLE COURT IN W.P. (C).NO.27416/04. EXT.P.8: COPY OF THE LETTER NO. H4.40034/06 (2) DT. NIL. ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.9: COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 03/05/2007. EXT.P.10: COPY OF THE NARC FROM THE CJM COURT, ALAPPUZHA IN CASE NO. P.E.10/1122 ME. EXT.P.11: COPY OF THE PKC ISSUED BY SRI. H.K. CHAKRAPANI DTD. 25/03/2007. EXT.P.12: COPY OF THE PKC ISSUED BY SRI. T.F.YOHANNAN @ KANNAMALI YOHANNAN DT. 10/04/2007. EXT.P.13: COPY OF THE LETTER NO. H4-40034/06 DTD. 18/05/2007 ISSUED BY THE R.2. TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No.17075/2007-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of December, 2008. J U D G M E N T The petitioner is an applicant for grant of pension under the Kerala Freedom Fighters' Pension Rules. The claim is based on his participation in the Punnapra-Vayalar Movement. It is stated that he was arrayed as an accused in case No.P.E.10/1122 ME by the Special Magistrate Court, Alappuzha and in order to evade arrest, he had gone underground for a period more than one year from 27/10/1946 to 09/12/1947. Inspite of repeated directions issued by this Court in Ext.P5 and P7 judgments, the matter has not been looked into by the authorities concerned in accordance with the spirit that should govern the matter. As early as on 09/04/2001 by Ext.P4, the Tahsildar, Taluk Office, Cherthala had reported to the District Collector, Alappuzha that the petitioner is a genuine freedom fighter and has undergone suffering. But the petitioner was given a cryptic reply by Ext.P6 which was challenged in W.P.(C).No.27416/2004. This Court by judgment in W.P.(C).No.27416/2004 (Ext.P7) reminded the District Collector that the sacrifices made by the freedom fighters for the independence of our country should be borne in mind while considering their applications. It was held that Exts.P3, P3(a), P3(b), P4 as well as W.P.(C) No.17075/2007 -:2:- Ext.P7 documents produced in that writ petition should have been considered as to its acceptability. Ultimately, this Court directed the District Collector to reconsider the application based on Exts.P3, P3(a), P3(b), P3(c), P4, P7 as also Ext.P14 produced in that writ petition. Again without mentioning any of these certificates or their acceptability, by a cryptic order, the same was rejected (Ext.P8). The said approach is clearly to be deprecated. The statutory authorities concerned are bound by Exts.P5 and P7 judgments. By giving Ext.P8 reply evasively, the concerned authority has clearly disobeyed the directions. Again by Ext.P9, the petitioner drew the attention of the authorities concerned by producing fresh materials also. Therein the non-availability of records certificate from the Chief Judicial Magistrate Court, Alappuzha, the personal knowledge certificates issued by the prominent freedom fighters, namely Sri.H.K.Chakrapani and Sri.T.F.Yohannan along with copies of the order sanctioning S.S.S Pension and jail records in respect of the said certifiers as well as copy of the judgment in No.27416/2004 were produced. The non- availability of records certificate and the personal knowledge certificates referred to above are produced here as Exts.P10 to P12. Still the District Collector has chosen to give a cryptic reply by Ext.P13 stating that in the absence of clear evidence, the application for pension cannot be sanctioned. W.P.(C) No.17075/2007 -:3:- 2. In the counter affidavit in paragraph (11) what is stated is that there is no clear documentary evidence to prove that the petitioner was involved in Punnapra-Vayalar Movement and accused in case No.P.E.10/1122 M.E. Herein also why the certificates produced by him are not acceptable has not been explained. The reason is clear from various paragraphs wherein reference is made to Circular dated 31/12/1993. In the said circular it is stated that applications received after 31/03/1994 will be considered only on production of documentary evidence such as warrant of arrest, court/jail records clearly showing the applicants sufferings in connection with the freedom struggle. The authorities cannot obviously, in the light of the clear directions in Ext.P7 judgment refuse to consider the certificates by taking shelter under the said circular. Therefore the said reason is not correct. Apart from that when the original scheme itself provides for acceptance of personal knowledge certificates from competent certifiers that cannot be whittled down by the terms of the circular. It is well settled that a circular cannot whittle down the provisions of the statute, scheme, rules, notification etc.. The terms prescribed in the circular cannot affect the claim for grant of pension in the light of the dictum laid down by the Apex Court in Mukund Lal Bhandari v.Union of India [AIR 1993 SC 2127], wherein it was held that “the date prescribed in any W.P.(C) No.17075/2007 -:4:- past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit.” 3. Herein, in the light of the said report of the Tahsildar, Ext.P4 the claim ought to have been allowed. Apart from that he has produced the personal knowledge certificates issued by various competent certifiers like Sri.H.K.Chakrapani and Sri.T.F.Yohannan as well as non-availability of records certificate. No objection is taken in the counter affidavit regarding these certificates issued by various certifiers and about its genuineness. His underground suffering for one year for involvement in case No.P.E.10/1122 ME is clearly stated in Ext.P4. Mere recourse to the Circular dated 31/12/1993 to reject the application is unjustified. 4. Therefore, the writ petition is allowed. Exts.P8 and P13 are quashed. There will be a direction to the respondents to pass orders sanctioning pension to the petitioner under the relevant scheme within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms