IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 6445 of 2010(E) ------------------------- PETITIONER(S): --------------- SUJATHA, W/O.LATE C.K.PADMANABHAN, SUNIMANDIRAM, PATTANAKKAD P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT, KERALA. BY ADV. SRI.K.K.SATHEESH SRI.THOMAS T.KURICHIYANI RESPONDENT(S): --------------- UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110 003. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 6445/2010 -------------------------------------------------------------------- EXT.P1 TRUE COPY OF F.I.R. EXT.P2 EXTRACT OF REGISTER OF UNDERTRIAL PRISONERS. EXT.P3 CASTE CERTIFICATE DT. 9-1-2007. EXT.P4 PROCEEDINGS DT. 7-2-1983. EXT.P5 APPLICATION DT. 28-7-1998. EXT.P6 JUDGMENT IN W.P.C.NO. 10518/2005. EXT.P7 LETTER DT. 19-3-2009. EXT.P8 TRUE COPY OF ORDER. EXT.P9 REVIEW PETITION DT. 25-11-2009. RESPONDENT'S EXHIBIT: ------------------------------------- EXT.R1 PHOTOCOPY OF SALIENT FEATURES OF S.S.S. PENSION SCHEME. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 6445 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th day of June, 2010. J U D G M E N T The petitioner is the widow of late C.K. Padmanabhan, who belonged to a scheduled caste community and was a freedom fighter. Her claim for pension under the Swathantrata Sainik Samman Pension Scheme in respect of the sufferings of her husband did not succeed. The petitioner approached this Court by filing W.P(C) No. 10518/2005. In that writ petition, a learned Judge of this Court passed the following judgment: “The writ petition is filed for the following among other reliefs: “i) declare that petitioner is entitled to get the benefit of SSS Pension due to her late husband; ii) issue a writ of mandamus or other appropriate writ, direction or order compelling the 2nd respondent to recommend the petitioner's claim for the grant of SSS Pension along with their verification-cum-entitlement to pension report to the 1st respondent, and on receipt of the same the 1st respondent may also be directed to grant the benefit of dependent family pension under the SSS Pension Scheme to the petitioner within a stipulated time; iii) issue any other appropriate writ, direction or order which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.” 2. The case of the petitioner is that her deceased husband was a freedom fighter who had active participation in the Punnapra-Vayalar Movement during the freedom struggle. It is averred that he had undergone the undertrial imprisonment in the police station lock-up at Alappuzha for a period of one year, one month and sixteen days and thereafter in the Central Prison, Thiruvananthapuram for a period of three months and twenty three days, till he was acquitted by the Additional Sessions Judge. Ext.P2 is the true extract of the register of undertrial prisoners of Central Prison, Thiruvananthapuram. Ext.P3 is the order granting State Pension. Ext.P4 is the application submitted by the petitioner for the grant of Swatantra Sainik Samman Pension (for short SSS). 3. Ext.P6 order of the State Government is under challenge. Two reasons are stated for not forwarding her application for the grant of SSS pension. Her late husband Sri.Padmanabhan had W.P.C. No. 6445/10 -: 2 :- suffered imprisonment for a period of less than six months and his undertrial sufferings did not end in conviction. 4. The learned counsel for the petitioner submitted that the deceased Padmanabhan belongs to Scheduled Caste Community. Ext.P10 is the certificate issued by the Tahsildar, Cherthala, certifying that Padmanabhan belongs to Scheduled Caste Community. Ext.P2 undertrial register also shows that the deceased Padmanabhan is a Hindu-Velan, which is a Scheduled Caste category. The learned counsel also refers to paragraph 4 (b) of the SSS Pension Scheme, 1980, which is extracted as follows: “(b) The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 01.08.80.” 5. The question was directly answered by a Full Bench of this Court in Union of India V. Peter Devassia [2003 (1) KLT 467]. This court held that the imprisonment for six months in jail as undertrial prisoner can be counted for computing freedom fighters pension. This Court also held that the trial need not end in conviction. Sub Section b of Clause 4 of the Scheme read with the decision of the Full Bench of this Court makes the matter very clear. Therefore, there will be a direction to the State Government to forward the application along with recommendation of the State Government for the grant of SSS Pension. The application with the recommendation shall be forwarded within a period of one month from today and the 1st respondent shall consider and pass appropriate orders within a period of two months thereafter. In the event of sanction of Pension, it is made clear that the applicant is entitled to arrears from the date of filing of the application, i.e., 28.07.1998. Writ Petition is disposed of as above. Pursuant thereto, by Ext. P8, the respondent rejected the claim of the petitioner as follows: “5. After examination of the claim, it is found that Smt. Sujatha is not eligible for grant of dependent family pension due to the following shortcomings/discrepancies: i. She has not furnished any Primary/Secondary evidence to substantiate her claim (as described in para 4 above) of lock up suffering. She has also claimed undertrial suffering for a period of 3 months and 23 days of her late husband in the Central Prison, W.P.C. No. 6445/10 -: 3 :- Trivandrum. Copies of Extract of register of Under-Trial prisoners of Central Prison, submitted by her have no been verified by the State Government Order, hence cannot be relied upon. ii. In absence of acceptable primary evidence, she is required to furnish Secondary Evidence in the form of NARC from the State Government along with CPC as prescribed in the Scheme. However, she has not done so. The petitioner has not furnished NARC from the State Government. The copy of certificate from Superintendent, Sub-jail, Alappuzha provided by the petitioner cannot be treated as valid NARC. iii. Neither the extracts of register of Under Trial Prisoners nor the certificate issued by Superintendent, Sub-Jail, Alappuzha shows that the sufferings of the petitioner's husband was in connection with the Freedom Struggle. iv. In the absence of valid NARC, the CPC submitted by the petitioner cannot be considered. The CPC from Sh. P.A. Solomon has, however, been scrutinized. The petitioner has not furnished the jail records to establish the jail suffering of the certifier for a period of at least 1 year. Thus the CPC is not acceptable as the certifier has not furnished any record/evidence of his own jail suffering of minimum one year (i.e., he has furnished no evidence to establish that he is an eligible certifier). More over, the certificate given by P.A. Solomon are not acceptable as he is misusing his status of a freedom fighter and issuing the CPCs indiscriminately. v. The petitioner has submitted that she belongs to ST Community. In her application dated 28.7.98, the petitioner has mentioned “No' against the column 14 asking 'whether the applicant is member of SC/ST community'. The petitioner/State Government has not provided any certificate verifying her status as ST. Now she is claiming to be ST. This creates sufficient doubts regarding genuineness and bona fide of her claim. If the petitioner does not furnish requisite certificate certifying hr claim as a member of SC/ST, she will be treated as applicant from 'General Category' and her claim is not covered under the relaxed category. vi. The State Government has recommended the claim of the petitioner. However, the recommendation is based on the grounds which are otherwise not acceptable. As such the recommendation of the State Government cannot be acceded to. 6. In view of the above, the claim of the petitioner does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. 7. It is, therefore, regretted that it is not possible to accept her W.P.C. No. 6445/10 -: 4 :- claim for grant of dependent family pension under the Swatantrata Sainik Samman Pension Scheme. Hence the same is, hereby, rejected. The petitioner may be informed of the decision accordingly. However, the Ministry is still ready to recosider the claim of the petitioner if she furnishes the documents duly verified by the State Government to remove the shortcomings mentioned above.” The respondent in this writ petition was a respondent in the writ petition which resulted in Ext. P6 judgment. The respondent did not raise any of these objections before the learned Judge while the writ petition was being heard. In that judgment, this court upheld the right of the petitioner to get SSS pension, holding that her husband belonged to a Scheduled Caste Community. That being so, the 1st respondent cannot now dispute the claim as a member of a scheduled caste. Moreover, what is relevant is the caste status of her husband and not of the petitioner. The 1st respondent cannot raise new objections when in the earlier judgment all these matters could have been agitated and thrashed out, which they did not. Putting freedom fighters and their widows through such agony again and again shows lack of patriotism on the part of the officers who deal with the same. They cannot take the stand that they will consider the matter on merits only after the State Government first considers it, when they had an opportunity to raise all these contentions before this Court earlier. They must understand that persons like the petitioner, with the limited resources they have, cannot afford the luxury of fighting writ petitions time and again, in the twilight zone of their life. That being so, I do not think that they could pass Ext. P8 order in violation of Ext. P6 judgment. Ext. P8 is clearly in violation of Ext. P6 judgment. Accordingly, Ext. P8 is quashed. The respondent is directed to grant pension to the petitioner under the SSS Pension Scheme from W.P.C. No. 6445/10 -: 5 :- the date when the original application for pension was filed either by the petitioner or by her husband. Arrears shall be paid within a period of two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/