IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No. 27395 of 2007(J) -------------------------------------- PETITIONER: ------------------- MANDAKINI, W/O LATE ETTIYATHI DIVAKARAN, MADATHIL VELIYIL, MANNANCHERRY P.O., ALAPPUZHA-688538. BY ADV. SRI.K.K.SATHISH. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION (FFP.B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. R1 & R2 BY GOVERNMENT PLEADER SRI. V.T.K. MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.27395/2007-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S LATE HUSBAND TO THE R.2. EXT.P.2: COPY OF THE PKC ISSUED BY SRI. P.K. CHANDRANANDAN EX-MLA DT. 29/09/1989. EXT.P.3: COPY OF THE PKC ISSUED BY SRI. KITTAN CHAKRAPANI DTD. 18/05/2000. EXT.P.4: COPY OF THE NARC ISSUED BY THE CJM, ALLEPPEY. EXT.P.5: COPY OF THE LETTER NO.K2.10426/01 DTD. 26/09/2001 ISSUED BY THE TAHSILDAR, AMBALAPUZHA TO THE VILLAGE OFFICER, KOMALAPURAM. EXT.P.6: COPY OF THE REPORT DTD. 29/10/01 SUBMITTED BY THE VILLAGE OFFICER, KOMALAPURAM VIDE NO.6422/2001 ALONGWITH THE STATEMENT OF THE AFORESAID FREEDOM FIGHTERS. EXT.P.7: COPY OF THE COMMUNICATION NO. 57037/FFP.B3/2000/GAD DTD. 16/01/2003 ISSUED BY THE R.1. EXT.P.8: COPY OF THE REPRESENTATION DTD. 09/09/2003 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.9: COPY OF THE JUDGMENT DTD. 14/11/2006 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.32226/2003. EXT.P.10: COPY OF THE PKC ISSUED BY SRI. H.K. CHAKRAPANI DTD. 04/03/2007. EXT.P.11: COPY OF THE COMMUNICATION NO. 94363/FFP.B3/2006/GAD DTD. 09/03/2007 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.12: COPY OF THE LETTER NO. 63819/FFPB3/GAD DT. 30/10/06 ISSUED BY R.1. EXT.P.13: COPY OF THE REVIEW PETITION DTD. 06/08/07 SUBMITTED BY THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27395 of 2007-J - - - - -- - - - - - - - - Dated this the 2nd day of December, 2008. JUDGMENT The petitioner is before this court for quashing Ext.P11 order passed by the State Government rejecting the application for grant of pension under the Kerala Freedom Fighters Pension Scheme. She is the widow of late Shri Ettiyathi Divakaran who was a freedom fighter who had actively participated in the Punnapra-Vayalar struggle. It is stated that on account of his participation in the said struggle an arrest warrant was issued against him by the Special Magistrate Court, Alleppey in case No.PE 1122 ME and he had gone underground for a period of 13 months from 23.3.1122 ME to 26.4.1123 ME to evade the arrest. After due enquiry on the application, the Village Officer, Komalapuram recommended it as per Ext.P6. 2. In Ext.P11, the main reason stated for rejecting the claim is that the certifier late Shri H.K.Chakrapani was not a recipient of Central pension at the time when the application was submitted by the petitioner and accordingly, he was not considered as an eligible certifier. The other objection is based on Circular No.57183/FFP B1/93/GAD dated 31.12.1993 specifying that applications received after 31.3.1994 will be Wpc 27395/2007 -2- considered only on production of documentary evidence from official records such as warrant of arrest, court records, jail records clearly showing the applicant's suffering in connection with freedom struggle. 3. That Shri H.K.Chakrapani was granted pension under the SSS Pension Scheme is not disputed. Going by Ext.P10, he was granted pension by the Central Home Ministry as per order dated 18.6.2003. Therefore, he is a competent certifier and the reasons stated that on the date of submission of the application he was not in receipt of Central pension, is clearly unacceptable. The delay in sanctioning pension to him cannot affect the certificate issued by him as it is clear that on the date when Ext.P11 was passed, he was a competent certifier which fact is even admitted in Ext.P11. Therefore, the said ground incorporated in Ext.P11 goes. 4. The next one is the objection based on the circular dated 31.12.1993. The said objection is also not sustainable for more reasons than one. Even going by the original scheme, in the absence of primary evidence secondary evidence is sufficient subject to its acceptability by the authority concerned along with other certificates produced by the applicant. Merely because a cut-off date is fixed, that cannot affect the validity of the same, if the authority is satisfied about the claim. (See Mukundlal Bhandari v. Wpc 27395/2007 -3- Union of India - AIR 1993 SC 2127). The Apex Court was of the view that the cut-off date fixed by the authority concerned is for administrative convenience and it will not affect the validity of the claim. Apart from that, when the Government has framed a proper scheme, the circular cannot go against the main part of the scheme itself and cannot whittle down the same. The above legal position is well settled by various decisions of the Apex Court. Therefore, both the grounds raised in Ext.P11 goes. 5. Hence, Ext.P11 is quashed. The State Government is directed to reconsider the application of the petitioner which is supported by the certificates issued by late Shri H.K. Chakrapani treating him as a competent certifier along with other materials produced by the petitioner, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/