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. 3259 of 2007(K) ---------------------------------- PETITIONER(S): ---------------------- RAGHAVAN.V., AGED 80, THANNIKKAL, PATTANAKKAD P.O., CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN FOR R1 & 2 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.3259/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE APPLICATION OF THE PETITIONER DT. 18.7.81. P2:- COPY OF THE APPLICATION AND THE ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE, CHERTHALA DT. 14.7.81. P3:- COPY OF THE CERTIFICATE OF SRI.H.K.CHAKRAPANI DT. 25.12.2000. P4:- COPY OF THE CONVICT REGISTER RELATING TO SRI.H.K.CHAKRAPANI ISSUED BY THE SUPERINTENDENT CENTRAL JAIL, THIRUVANANTHAPURAM DT. NIL. P5:- COPY OF THE CENTRAL PENSION ORDER ISSUED TO H.K.CHAKRAPANI BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA DT. 18.6.03. P6:- COPY OF THE REPORT OF THE VILLAGE OFFICER, PATTANAKKAD DT. 5.2.03. P7:- COPY OF THE LETTER OF THE IST RESPONDENT DT. 28.1.05. P8:- COPY OF THE LETTER OF THE IST RESPONDENT DT. 24.7.05. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.3259/2007-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of December, 2008. J U D G M E N T Petitioner herein is an applicant for grant of pension under the Kerala Freedom Fighters' Pension Scheme. According to him, he was an active participant in the Punnapra-Vayalar Movement and he was arrayed as an accused in Case No.P.E.10/1122 ME of the Special Magistrate Court, Alappuzha, (wrongly stated as First Class Magistrate Court, Cherthala). Ext.P1 is the application dated 18/07/1981 submitted by the petitioner. Ext.P2 is the non-availability of records certificate issued by the Judicial First Class Magistrate Court, Cherthala. The petitioner has produced Ext.P3, the personal knowledge certificate issued by a competent freedom fighter, late Sri.H.K.Chakrapani. Ext.P4 is a true extract of the convict register available at Central Prison, Thiruvananthapuram, in respect of late Sri.H.K.Chakrapani. The application of the petitioner was recommended by the Tahsildar (Ext.P6). But by Ext.P7, the same has been rejected by the State Government stating that copy of arrest warrant or records from court or jail have not been produced. Even though a petition for reconsidering the same was given that was also rejected by Ext.P8. W.P.(C) No.3259/2007 -:2:- 2. Along with I.A.No.15395/2008, the petitioner has produced Ext.P9 N.A.R.C issued by the Chief Judicial Magistrate Court, Alappuzha. 3. A detailed counter affidavit has been filed by the State Government. Mainly it is stated that the certifier, late Sri.H.K.Chakrapani at that time was not a recipient of Central Pension and that the petitioner has not produced any documentary evidence from the official records to prove the claimed sufferings. As per the Government Circular No.57183/FFPB1/93/GAD, dated 31/12/1993, any application received after 31/03/1994 will be considered only on the production of documentary evidence such as warrant of arrest, court records, jail records clearly showing the applicant's sufferings in connection with freedom struggle. 4. Heard learned counsel for the petitioner and the learned Government Pleader. 5. Apparently, the certifier at the relevant time was not sanctioned pension by the Central Government. That is why in Ext.P3 it is mentioned that his application for central pension is under consideration of the Central Government. But that has now been cleared since by Ext.P5, the Central Government has granted pension to the certifier, late Sri.H.K.Chakrapani. In the light of Ext.P5, the objection that the certifier was not granted pension by W.P.(C) No.3259/2007 -:3:- the Central Government do not survive. Therefore, the personal knowledge certificate issued by late Sri.H.K.Chakrapani along with true copy of the extract of the convict register and the order granting central pension are relevant and are liable to be considered. The petitioner has now produced herein Ext.P9 non-availability of records certificate issued by the Chief Judicial Magistrate Court, Alappuzha. 6. The other objection taken is by relying upon the circular dated 31/12/1993. In this case, the application itself is dated 18/07/1981. Therefore, practically, the application will not come within the mischief of this Circular as it applies only to applications received after 31/03/1994. Presumably, the latest application submitted by the petitioner to reconsider the rejection has been treated as the application for pension coming under the said circular. The said approach is not correct since Ext.P1 is dated 18/07/1981. Apart from that, the matter has to be considered as per the express provisions of the scheme. The legal position is well settled that provisions of a statute, scheme, rules etc. cannot be whittled down by the terms of a circular. In that view of the matter, the stand taken by the State Government that the application of the petitioner will be considered only on production of documentary evidence such as warrant of arrest, court records, jail records clearly showing the applicant's sufferings in W.P.(C) No.3259/2007 -:4:- connection with freedom struggle cannot hold good. The absence of primary evidence to prove jail sufferings shall not be treated as a negative factor in the facts of this case. Herein already the Tahsildar has recommended the application by Ext.P6. 7. Therefore, Exts.P7 and P8 are quashed. The petitioner will produce the authenticated copy of Ext.P9 for the consideration of the State Government within a period of three weeks from today along with any other materials available with him. The first and second respondents shall pass orders on the application after considering the entire matter on merits and in the light of the findings rendered above within a further period of two months. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms