IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 25650 of 2005(C) --------------------------------------- PETITIONER(S): --------------------- VELUTHAKUNJU DAMODARAN, NANTHIKATTU HOUSE, PARAVOOR, PUNNAPRA P.O., ALAPPUZHA-688 004. (DIED) *ADDL. P2 IS IMPLEADED 2. SULOCHANA P., W/O. LATE VELUTHAKUNJU DAMODARAN, NANTHIKATTU HOUSE, PARAVOOR, PUNNAPRA P.O ALAPPUZHA 688 004. *ADDL. P2 IS IMPLEADED AS PER ORDER DT. 03.02.2009 IN IA. NO.1633/2009. BY ADV. MR.K.K.SATHEESH RESPONDENT(S): ------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHRERS' DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SMT.A.SREEKALA, ADDL.CGSC FOR R1 GOVERNMENT PLEADER SMT.K.L.LAKSHMI RANI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25650/2005 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER NO.R.DIS. 19911/74 DT. 14.6.74 ISSEUD BY THE DISTRICT COLLECTOR, ALAPPUZHA. P2:- COPY OF THE LETTER NO.F6-2733/73 DT. 8.8.75 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA INITING THE PETITIONER TO RECEIVE THAMARAPATHRA. P3:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DT. 1.3.98 TO THE RESPONDENTS. P4:- COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY SRI.P.A.SOLOMON EX-MP DT. 18.7.01. P5:- COPY OF THE NARC ISSUED BY THE SUPDT. OF POLICE, ALAPPUZHA DT. 22.8.2001. P6:- COPY OF THE NARC ISSUED BY THE SUPDT. OF SPECIAL SUB-JAIL, ALAPPUZHA DT. 30.7.01. P7:- COPY OF THE JUDGMENT DT. 24.9.02 PASSED BY THIS HONOURABLE COURT I OP. BNO.30843/01. P8:- COPY OF THE LETTER NO.109589/FFPA2/02/GAD DT. 23.12.02 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P9:- COPY OF THE COMMUNICATION NO.52/CC/KER/153/2001 -FF (LIT.II)SZ DT. 3.4.03 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. P10:- COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT DT. 21.7.05. P11:- COPY OF THE LETTER NO.52/CC/KER/20/2001-FF(SZ) DT. 28.1.04 ISSUED BY THE IST RESPONDENT TO THE 2ND RESPONDENT. P12:- COPY OF THE ORDER NO.52/CC/K/69/2004-FF(SZ) DT. 3.2.05 ISSUED BY THE IST RESPONDENT. /TRUE COPY/ P.S. TO JUDGE tss HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.25650 OF 2005 ---------------------------- DATED THIS THE 3RD DAY OF FEBRUARY, 2009 JUDGMENT Petitioner was a freedom fighter. It is averred in the writ petition that he had actively participated in the Punnapra-Vayalar movement during the freedom struggle. On account of his participation in the said struggle, he had undergone imprisonment in the defunct sub jail, Alleppey for the period from December 1946 to July, 1947 in connection with Case No.PE.7/1122 ME on the file of the Special Magistrate's Court, Alleppey. Petitioner claimed that he is entitled to get the benefit of “Swatantratha Sainik Samman Pension” (SSS Pension). It is also stated that State pension with effect from 1//4/1971 was granted to him as per the proceedings of the District Collector, Alappuzha, which is produced as Ext.P1 in this writ petition. The petitioner was the holder of “Thamrapathra”. Ext.P2 is the letter of the District Collector, Alappuzha inviting him to receive Thamrapathra on -2- W.P.(C).No.25650/2005 15/8/1975. Ext.P9 is the order passed by the Government of India rejecting the claim for pension under the Swatantrata Sainik Samman Pension Scheme. The reasons stated for rejecting the claim are extracted below. (i) No documentary evidence from the official records have been submitted by you in support of your claim; ii) As already stated in paras 4 and 5 above, in the absence of the documentary evidences from the official records, a NARC issued by the State Government is required. However, the same is also not available in your late husband's case. In the absence of the valid Non-Availability of Records Certificate (NARC), the Co-Prisoner Certificate (CPC) of Sri.P.A.Solomon, Ext-MP is not acceptable. iii) The State Government has not recommended your claim. 2. The legality of Ext.P9 order is examined in the context of the SSS Pension Scheme 1980 as revised. One of the requirements for the grant of SSS Pension stipulated in Clause 9 (a) is that the applicant should produce a certificate from the jail -3- W.P.(C).No.25650/2005 authorities concerned, District Magistrates or the State Government certifying the details necessary for the purpose of considering the pension application. The requirement of the certificate is also published by the Central Government under the head “How to Prove the Claims (Evidence Required)” which is extracted below. “The applicant should furnish the documents indicated below whichever is applicable:- (a) Imprisonment/Detention etc. Certificate from the concerned jail authorities, District Magistrates or the State Government. In case of non-availability of such certificates co-prisoner certificates from a sitting M.P. or M.L.A. or from an ex-M.P. or an ex- M.L.A. specifying the jail period. (Annexure-I in the application form).” 3. The requirement cannot be satisfied by producing Non-Availability of Records Certificate (NARC) from any authorities other than the authorities mentioned under Clause 9 (a). Therefore, it is clear that the certificate from any authorities -4- W.P.(C).No.25650/2005 cannot be accepted. In this case the petitioner produced Exts.P5 and P6 certificates from the Superintendent of Police, Alappuzha and the Superintendent of Police, Special Sub Jail, Alappuzha, respectively. In case of non-availability of such certificates, Co- prisoner certificate from the sitting MP or MLA or from an ex- MP or ex-MLA specifying the jail period shall be produced. On a reading of Clause 9(a) it is clear that two requirements are there; one is that the applicant can produce a co-prisoner certificate issued by the persons named therein only when it is not possible to comply with the lst requirement. It means only in cases where the Jail Authorities or District Magistrates or the State Government, as the case may be, are unable to issue certificates containing the details of detention for the reason that the records are not available, the applicant can produce Co- prisoner certificate. The other requirement is for the production of certificate issued by the authorities mentioned in the first line of Clause 9(a) certifying non-availability of records of detention coupled with a certificate from a sitting MP or MLA or ex-MP or -5- W.P.(C).No.25650/2005 ex-MLA, as the case may be. 4. In some cases it is seen that the certificate issued by the MP or MLA is rejected stating that it is not accompanied by the documents showing the details of imprisonment by the certifier. It is not disputed that Sri P.A. Solomon, Ex-MP is the recipient of SSS pension under the very same scheme. So the further documents showing the detention of the certifier to be produced shall not be insisted. The grant of SSS pension itself shows that a certifier is a person, who had suffered imprisonment for a period of not less than six moths. So long as there is a condition that certifier shall undergo imprisonment for a fixed period, such document shall not be insisted, in cases where the certifier is a recipient of central pension, which conclusively proves the fact that he is a person, who had undergone imprisonment, at least for the minimum period. 5. With reference to the Clause 9(a) it is clear that Co- prisoner certificate from a sitting MP or MLA or from an ex-MP or ex-MLA, certifying that the said MP or MLA, as the case may -6- W.P.(C).No.25650/2005 be, had suffered imprisonment in connection with the freedom struggle and that the applicant or applicant's husband as the case may be, is a co-prisoner, who also had suffered imprisonment during the same period along with the certifier. The certificate also shall contain the details of the period of stay of the certifier in jail and the freedom fighter. Rule 9(a) does not specify that the certifier, who is a sitting MP or MLA, or ex-MP or ex-MLA, should have undergone imprisonment for a period of not less than one year. There is no such requirement in the scheme. But the authorities, after considering the provisions of the scheme in some cases, have insisted that the certifier-sitting MP, MLA and or ex-MP or ex-MLA should have undergone imprisonment for a period of not less than one year, in order to qualify for the issuance of the certificate. It is not correct to include such a condition in the scheme and therefore the authorities cannot reject the application for the reason that the certifier did not undergo imprisonment for more than one year. Ext.P5 and P6 are the NARCs issued by the Superintendent of Police, Alappuzha -7- W.P.(C).No.25650/2005 and the Superintendent of Sub Jail, Alappuzha who are not authorities under Clause 9(a) to issue such certificates. Therefore, the certificates issued by the Superintendent of Police are not acceptable. By Ext.P9 the application for SSS pension was rejected for the other reason that in the absence of the valid NARC, the Co-prisoner certificate issued by the ex-MP is not acceptable. The Central Government cannot insist that the NARC shall be issued by the State Government. NARC can be issued either by the Jail Authorities concerned, District Magistrates or the State Government, as the case may be. Therefore, the rejection on that ground is not proper. The NARC produced by the applicant is not a certificate coming within th purview of Clause 9(a) and therefore it is not acceptable. Another reason stated is regarding the non-recommendation of the State Government. It is true that going by the scheme the other requirement is the report and recommendation from the State Government for the purpose of considering the application for grant of SSS Pension. Clause 10 of the scheme stipulates that -8- W.P.(C).No.25650/2005 the application shall be forwarded by the State Government along with verification and entitlement to pension report (recommendation). In this case the State Government neither recommended nor furnished verification and entitlement to pension report. 6. It is submitted by the learned counsel for the petitioner that his client was under the impression that NARC from the Superintendent of Police is sufficient. It is also submitted that when the petitioner approached the District Magistrate, he directed the applicant to approach the District Superintendent of Police and obtain a certificate from him and therefore, the same was produced. Petitioner has produced a certificate from an ex-MP, which is the other requirement. So, the petitioner shall produce NARC obtained from the authority, who is empowered to issue the same, before the State Government within a period of six weeks from today and the State Government shall, after examining the materials on record, forward the verification report along with entitlement to pension -9- W.P.(C).No.25650/2005 report (recommendation) to the Central Government within two months thereafter, if the petitioner is found eligible under the SSS Pension Scheme. On receipt of the report, the Central Government shall pass fresh orders within a period of three months of receipt of the same. It is needless to say that in the event of sanction of pension under the SSS Pension Scheme, the applicant is entitled to arrears of pension from the date of receipt of application for grant of SSS Pension. Ext.P9 is quashed. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.