IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 15250 of 2005(M) --------------------------------------- PETITIONER(S): ----------------------- PONNAMMA SREEDHARAN, W/O. LATE V.K.SREEDHARAN, PADINJARE MEDAYIL HOUSE, THUMPOLY P.O., KOMMADY WARD, ALAPPUZHA 688 008. BY ADV.MR.K.K.SATHEESH RESPONDENT(S): ------------------------ 1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI 110 003. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP.A.) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ALAPPUZHA. ADV. SMT.A.SREEKALA, ADDL.CGSC FOR R1 MR.P.PARAMESWARAN NAIR, ASST. SG. FOR R1 BY GOVERNMENT PLEADER MR.SHYSON P.MANGUZHA FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, ALONG WITH WPC. NO.33315 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15250/2005 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER NO.R.DIS. 23949/72/F6 DT. 31.12.1973 ISSUED BY THE 3RD RESPONDENT. P2:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S LATE HUSBAND FOR THE GRANT OF SSS PENSION DT. 1.6.98. P3:- COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY SRI.P.A.SOLOMON EX-MP DT. 30.5.98. P4:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DT. 31.10.2000. P5:- COPY OF THE NARC ISSUED BY THE DISTRICT SUPDT. OF POLICE, ALAPPUZHA DT. 20.10.2000. P6:- COPY OF THE AFFIDAVIT DULY ATTESTED BY THE JUDICIAL IST CLASS MAGISTRATE ALAPPUZHA DT. 29.10.2000. P7:- COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY SRI.KUNJAN KRISHNAN DT. 28.10.2000. P8:- COPY OF THE JUDGMENT DT. 20.9.2002 PASSED BY THIS HONOURABLE COURT IN OP. NO.26879/02. P9:- COPY OF THE LETTER NO.79728/FFP.A2/02/GAD DT. 12.12.02 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P10:- COPY OF THE LETTER NO.52/CC/KER/89/2002-FF(SZ) DT. 23.4.03 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. P11:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT DT. 9.3.04. P12:- COPY OF THE LETTER NO.52/CC/KER/20/01-FF)SZ) DT. 28.1.04 ISSUED BY THE IST RESPONDENT TO THE 2ND RESPONDENT. P13:- COPY OF THE ORDER NO.52/CC/K/69/2004-FF(SZ) DT. 3.2.05 ISSUED BY THE IST RESPONDENT GRANTING THE BENEFIT OF SSS PENSION TO SRI.LENNYAMMA, W/O. POWLEENJU ACHAPPAN. /TRUE COPY/ P.S. TO JUDGE tss HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.15250 OF 2005 & W.P.(C).No.33315 OF 2004 ---------------------------- DATED THIS THE 29TH DAY OF JANUARY, 2009 JUDGMENT Petitioners are wives of late Sri V.K.Sreedharan and late Sri Alphonse Xavier respectively. It is averred in the writ petitions that their husbands had actively participated in the Punnapra-Vayalar movement during the freedom struggle. On account of their participation in the said struggle, they had undergone imprisonment in the defunct sub jail lock ups at Alleppey for the period from November,1946 to May, 1947 in connection with Case No.P.E.7/1122 ME on the file of the Special Magistrate's Court, Alappuzha. Petitioners claimed that their husbands are 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 and 9/6/1975 respectively was granted to them as per the proceedings of the District Collector, -2- W.P.(C).Nos.15250/05 & 33315/04 Alappuzha, which is produced as Ext.P1 in these writ petitions. Ext.P10 in W.P(C).No.15250/2005 and Ext.P6 in W.P.(C). No.33315/04 are the orders 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.P10 and Ext.P6 orders are -3- W.P.(C).Nos.15250/05 & 33315/04 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 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 -4- W.P.(C).Nos.15250/05 & 33315/04 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 cannot be accepted. In this case the petitioners produced certificate from the Superintendent of Police. 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 confirmation of the lst requirement only in cases where the Jail Authorities or District Magistrates or the State Government, as the case may be are enabled to issue certificates containing the details of detention for the reason that the records are not available. Then only the question of production and acceptance of a co-prisoner certificate from the persons named therein can be acted upon. The 2nd requirement is for production of a certificate issued by the -5- W.P.(C).Nos.15250/05 & 33315/04 authorities mentioned in the first line of Clause 9(a) certifying NARC coupled with a certificate from a sitting MP or MLA or ex-MP or 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. 5. With reference to the Clause 9(a) it is clear that Co- -6- W.P.(C).Nos.15250/05 & 33315/04 prisoner certificates 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 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 earlier 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 issue a certificate. It is not correct to include such a condition in the scheme and therefore the authorities herein should not reject the applications for the reason that the certifier -7- W.P.(C).Nos.15250/05 & 33315/04 did not undergo imprisonment for more than one year. Ext.P5 in W.P.(C).No.15250/2005 and Ext.P4 in W.P.(C).No.33315/2005 are the NARCs issued by the Superintendent of Police, Alappuzha, who is not an authority under Clause 9(a) to issue such a certificate. Therefore, the certificates issued by the Superintendent of Police are not acceptable by the Central Government. By Ext.P10 in W.P.(C).No.15250/05 and Ext.P6 in W.P.(C).No.33315/095 the applications for SSS pension were 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 applicants is not a certificate coming within the purview of Clause 9(a) and therefore it is not acceptable. Another reason stated is regarding the non-recommendation of -8- W.P.(C).Nos.15250/05 & 33315/04 the State Government. It is true that going by the scheme another 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 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 petitioners that his clients were under the impression that NARC from the Superintendent of Police is sufficient. It is also submitted that when the petitioners approached the District Magistrate, he directed the applicants to approach the District Superintendent of Police and obtain a certificate from him and therefore, the same was produced. Petitioners have produced certificate from an ex-MP, which is the other requirement. So, the petitioners shall produce NARC obtained from the authority, -9- W.P.(C).Nos.15250/05 & 33315/04 who is empowered to issue the same, before the State Government within a period of six weeks from today and the State Government shall forward their verification report, after examining the materials on record, along with entitlement to pension report (recommendation) to the Central Government within two months thereafter, if the petitioners are found eligible under the SSS Pension. 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 applicants are entitled to arrears of pension from the date of receipt of the applications for grant of SSS pension. Ext.P10 and Ext.P6 are quashed. Writ Petition are disposed of as above. HARUN-UL-RASHID, Judge. kcv. -10- W.P.(C).Nos.15250/05 & 33315/04