IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 WA.No. 2299 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.4242/2007 Dated 14/03/2008 .................... APPELLANT/IST RESPONDENT: --------------------------------- UNION OF INDIA, REPRESENTED BY THE UNDER SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENTS/PETITIONER & 2ND RESPONDENT: ------------------------------------------------------- 1. P.K.BAWA, THAIPARAMBIL VEEDU, PAZHAVEEDU VILLAGE, KAITHAVANA EAST, SANTHANAPURAM P.O., ALAPPUZHA-3. 2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION (FFP-A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI. K.K. SATHEESH R2 BY SENIOR GOVT. PLEADER, SRI.BENNY GERVACIS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2299 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of July, 2011 JUDGMENT Antony Dominic, J. The respondent herein filed the writ petition seeking to quash Ext.P12 order passed by the Government of India rejecting his claim for the benefit of pension under the Swatantrata Sainik Samman Pension Scheme, 1980. Though the appellant entered appearance and contested the matter, they did not file any counter affidavit. By judgment dated 14.03.2008, the learned Judge allowed the writ petition and directed that the pension should be sanctioned and paid to the respondent. It is aggrieved by the said judgment, this appeal has been filed. 2. A reading of the judgment shows that the learned Judge has held that the primary ground for rejecting the request for pension was that the respondent had not furnished evidence from the official records or other acceptable document to substantiate his under ground suffering and that he had not submitted a valid Non Availability Records Certificate(NARC) from the State Government. Further the learned Judge also WA No. 2299 of 2009 -:2:- noticed that it is held in Ext.P12 that in the absence of a valid NARC, personal knowledge certificate from the certifier was not acceptable. These contentions have been rejected by the learned Single Judge by relying on the judgment of this Court Court in O.P. No.7749 of 2000. It was on that basis the learned Judge allowed the original petition. 3. In this appeal, the appellant has produced as Annexure A2, the recommendation made by the State Government, vide their letter dated 07.10.2006, on the basis of which the claim of the respondent for pension was considered by the Government of India and was eventually rejected by Ext.P12 order referred to above. Annexure A2 reads as follows: “Kindly see the references cited. As per reference 1st cited the 2nd respondent viz., the State of Kerala represented by the Secretary, GAD,(FFP A) Department was directed to take a decision on the application of the petitioner and to forward it to the Union of India after affording the petitioner an opportunity of being heard and about giving him a chance to cure the defects, if any, forwarded by the 2nd respondent. The 2nd respondent has to do this within two months from the date of production of a copy of the judgment. Upon receipt of the application from the State Government, the Union of India has WA No. 2299 of 2009 -:3:- to process the application and to take a decision thereon, without any further delay. Accordingly, as per reference 4th cited, the defects were pointed out to him, after informing him about the date and venue of hearing. He was also heard on 30.09.2006. At the time of hearing, he submitted the letter and enclosures thereon as per reference 5th cited. The available records were scrutinized. He was requested to explain the contradictions and the reply to the defects already pointed out in the reference 4th cited. His explanations for the same were found to be satisfactory. In the above circumstances, his application for Swatantrata Sainik Samman Pension is found to be recommendable for Swatantrata Sainik Samman Pension especially by giving him the benefit of doubt. Kindly note that he is a recipient of Kerala Freedom Fighters' Pension also. On this count also, his claim finds support for Swatantrata Sainik Samman Pension. The relevant documents including his application for Swatantrata Sainik Samman Pension are enclosed with this letter recommending his claim for Swatantrata Sainik Samman Pension. The above facts are brought to your attention for information and necessary action there, within the time limit prescribed by the Hon'ble High Court.” 4. A reading of Annexure A2 shows that the main ground on which the Government of Kerala had recommended the case of the respondent for payment of freedom fighters' WA No. 2299 of 2009 -:4:- pension was that the respondent is in receipt of pension under the Freedom Fighters' Pension Scheme introduced by the Government of Kerala. This document also shows that the Government of Kerala did not make any reference to the NARC or any other document for the purpose of making the recommendation. 5. As we have already stated, the learned Judge has allowed the writ petition following the judgment of this Court in O.P. No.7749 of 2000, relevant portion of which is extracted in paragraph 3 of the judgment under appeal. A perusal of aforesaid paragraph shows that in a case where after duly considering the NARC from the Court concerned, the State Government has recommended the case of a freedom fighter for pension, the Central Government shall not ordinarily reject the recommendation. Therefore, the Central Government will be bound by the recommendation made by the State Government only in a case where recommendation of the State Government is based on NARC. 6. A perusal of Annexure A2 recommendation made WA No. 2299 of 2009 -:5:- by the State Government shows that the recommendation was not based on NARC, but was more for the reason that he is a pensioner under the State Scheme. Therefore, on the material now available before this Court, we are persuaded to conclude that, the principles laid by this Court in OP No.7749 of 2000 are in applicable to the facts of this case. In such a case we are unable to sustain the judgment of the learned Judge. 7. Be that as it may, having regard to the fact that the claim raised by the respondent is for Freedom Fighters' Pension and that there is a recommendation in his favour by the State Government. In such situation the Government of India should justify its decision to reject the recommendation of the State Government and should have filed affidavit disclosing its reasons. This was not done. Therefore, in the peculiar facts of this case, we deem it appropriate to remit the writ petition for fresh consideration by the learned Single Judge. 8. In that view of the matter, we set aside the judgment in O.P. No.4242 of 2007 and the original petition is remitted for fresh consideration on condition that the appellant WA No. 2299 of 2009 -:6:- shall pay costs of `10,000/-(Rupees ten thousand only) to the respondent. 9. The Government of India shall file its counter affidavit producing the relevant materials before the learned Single Judge. The Writ Appeal will stand disposed of as above. The costs shall be paid to the respondent within four weeks from today. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb WA No. 2299 of 2009 -:7:-