Full Judgment
P.R. RAMACHANDRA MENON, J.
1. Denial of pension under the 'Swathantrata Sainik SammanPension Scheme' (SSSP Scheme in short) to the petitioner isunder challenge.
2. The proceedings are now before this Court after severalrounds of litigation at different levels. The case of the petitioneris that the deceased husband of the petitioner was a participantin the 'Punnapra-Vayalar' Movement, which was declared as afreedom struggle by the Central Government. In connection withsuch participation, the deceased husband of the petitioner had toundergo imprisonment for more than six months from29.01.1124 ME to 25.07.1124 ME, as revealed from Exhibit P1'jail certificate' issued by the concerned authorities. Afterconsidering the credentials of the deceased husband, theinvolvement of the said person was duly recognised by the StateGovernment, treating him as a freedom fighter and was grantedpension under the State Scheme, as borne by Exhibit P2.
3. The deceased husband had also filed Exhibit P3application for the central pension under the SSSP Scheme.Since the claim was not positively dealt with, he approached thisCourt by filing W.P.(C)No.37344/2003 and during the pendencyof the matter, he took his last breath, pursuant to which, thepetitioner got impleaded as additional petitioner as per order inI.A.No.15822/2005 dated 31.10.2005. The said writ petition wasdisposed of as per Exhibit P4 judgment dated 31.10.2005,directingthesecondrespondent/Statetoforwardtheverification-cum-entitlement report on the application to the firstrespondent/Union Government and to have the matter finalized as specified therein.
4. After considering the matter, first respondent rejectedthe claim as per Exhibit P5 proceedings dated 23.03.2006,referring to the non-satisfaction of the relevant norms/requirements and also the lapse on the part of the StateGovernment in forwarding the particulars, particularly lack of apositive recommendation, in this regard. The petitioner filedExhibit P6 representation, followed by such other proceedingsand thereafter, approached this Court again by filing W.P.(C)No.2571/2007, which was disposed of by Exhibit P8 judgment dated01.12.2008, wherein, the contentions taken by the parties onboth sides were discussed in detail. The discrepancies pointedout, especially with regard to the difference in the number of thecase concerned (C.C.No.38/1123 ME and also as to the FIR inCrime No.7/1122 ME), produced as Exhibit P7, were alsometiculously analysed, with reference to the concerned offencesunder Section 9(i)cl.(a) read with Section 2 cl.6 of Act I of 1122ME. It was in the said circumstance that, the Court observed thatthe matter required to be considered with a deeper enquiry inthe hands of the State as well as the Central Government, thus,giving appropriate directions to both the respondents to have thecredentialsofthepetitionerconsideredandfinalized accordingly.
5. Pursuant to the above verdict, the State Governmentsent Exhibit P9 report to the first respondent on 15.05.2009,however, observing that the claim preferred by the petitionerwas 'not recommended'. This, in turn, was considered by the firstrespondent, who issued Exhibit P13 rejection order dated04.01.2010, which forms part of the subject matter of challengein this writ petition.
6. Both the respondents have filed separate counteraffidavits seeking to sustain their stand.
7. Learned counsel for the petitioner submits that there isabsolutely no rationale on the part of the respondents in tryingto field a pool of smoke over the pension claim under the CentralScheme, more so, on flimsy reasons with reference to theparticulars of the criminal case/crime number; the offencesinvolved and the dates of detention.
8. In the counter affidavit filed by the first respondent, non-satisfaction of the requirements, with regard to the relevant documents necessary to consider the claim,has been highlighted, particularly with reference to the Non-Availability ofRecord Certificate (NARC), Co-Prisoner Certificate (CPC), Personal Knowledge Certificate (PKC), etc., besides projectingthat the claim was a not duly recommended by the State and assuch, there is no fault on the part of the said respondent inrejecting the same as per Exhibit P13.
9. In the counter affidavit filed by the second respondent,similar stand is taken, as borne by Exhibit P9 sent by them to thefirst respondent, holding that, in view of the discrepancies withreference to the crime/case number and the offences involved,petitioner was not entitled to get any relief, either by way ofrecommendation or to have the same sanctioned under the SSSPScheme.
10. After hearing both sides, this Court finds that there isconsiderable force in the pleadings and submissions made onbehalf of the petitioner, that the proceedings have been finalized by the respondents without proper application of mind, or withregard to the actual facts ad figures. A similarly situated personlike the deceased husband of the petitioner, who was involved inthe very same Movement (Sri.Ramankutty Karunakaran) andwho faced the trial as an accused in C.C.No.38/1123 on the fileof the Judicial First Class Magistrate, Cherthala and wasremaining behind the bars along with the deceased husband ofthe petitioner for the very same offences, had also put innecessary application for granting the benefit under the SSSPScheme. After considering the claim of the said person, the samewas recommended by the State Government. The particulars ofthe case involving the offences and the 'convict number' involvedare discernible from the certificates issued from the jailauthorities. Based on such recommendation of the StateGovernment, the matter was considered by the CentralGovernment, who sanctioned the pension under the SSSPScheme, in favour of the widow of the said person, as per ExhibitP12 order dated 24.07.2009.
11. The specific pleadings raised by the present writpetitioner in the writ petition in the above regard have not beensuccessfully rebutted by the respondents anywhere in theircounter affidavits. On the other hand, the factual positionrelating to Exhibits P11 and P12 has been virtually conceded bythe State Government as well, as given in paragraph 9 of thecounter affidavit dated 24.02.2011, though they seek to take a'U-turn' in respect of the eligibility of the petitioner by sayingsomething else in paragraph 13 of the same counter affidavit.For the purpose of convenience of reference, both theparagraphs are extracted below:
"9. The petitioner has submitted a representation dated15.01.2010 enclosing a copy of jail certificate issued from the Superintendent,Central Prison,Thiruvananthapuram inrespect of Sri.Ramakutty Karunakaranwho was convicted as No.9573 accused inC.C.38/1123 on the file of First Class Magistrate,Cherthalaiin which the petitioner's late husband Sri.EttachiKrishnan has also been included and hasrequested Government to re-examine her claim in view of granting of Swathantrata Sainik Samman Pension inan identical case to Smt.Pankajakshi Karunakaran, W/olate Ramankutty Karunakaran. The representation andenclosures had again been forwarded to the DistrictCollector, Alappuzha for their remarks. The District Collector has reported that Shri.Ramankutty Karunakaran and the petitioner's late husband Sri.EttachiKrishnan were accused in case No.CC.38/1123 ME of the First Class Magistrate Court.In pursuance of judgment dated 12.12.2008 in WP(C)No.31590/05.Smt.PankajakshiKarunakaranwasgranted Swathantrata Sainik Samman Pension. At thesame time in reply to the non recommendation reportdt. 15.5.2009 of State Government on the case of the petitioner, the Government of India have again rejectedthe claim of the petitioner for Swathantrata Sainik Samman Pension vide their order No.52/CC/K/13/2007-FF(SZ)dated 4.1.2010 or want of supporting documents and hence her Review Petition could not beconsidered.
13. On the basis of the directions contained in thejudgment dated 1.12.2008 in WP(C)No.2571/07, StateGovernment considered the Review Petition along withthe FIR in Crime No.7/1122 in detail, in consultationwith the District Collector, Alappuzha. The DistrictCollector has reported that in the absence of relevantrecords he could not verify the genuineness of the FIRproduced by the petitioner and recommended the casewithout any valid grounds. FIR in Cr.No.7/1122 cannotbe linked to the sufferings underwent by thepetitioner's husband in CC No.38/1123 ME for the solereason that the sections mentioned in the two are thesame. The main events of the Punnapra-VayalarStruggle started from 7.3.1122 ME. The copy of the FIRin Cr.No.7/1122 produced by the petitioner is seenframed against an offence committed on 18.09.1122,that is six months after the main events of thePunnapra-VayalarStruggle took place.Case No.PE7/1122 ME is related to Punnapra-Vayalar Struggle andthe relevant records of the case are not available asreported by the District Collector, Alappuzha in othercases. There is over-writing in the case number denotedat the top of the copy of the FIR and thereby caused adoubt on its genuineness. Hence a non recommendationreport on the case of the petitioner was forwarded tothe Government of India on 15.5.2009 for further actionat their end."
12. After filing the counter affidavit dated 31.08.2010, thefirst respondent has filed an additional counter affidavit dated23.10.2010, producing a copy of the SSSP Scheme as Exhibit R1(a) and a copy of the letter dated 23.3.2006 of the Ministry ofHome Affairs as Exhibit R1(b), which, in fact, pertains to therejection of the claim put forth earlier and this, in turn, happensto be nothing other than Exhibit P5 produced by the petitioner inthis writ petition. The additional counter affidavit does notcontain anything else with regard to the factual or legal position.
13. It is relevant to note that the deceased husband of thepetitioner was also an accused in C.C.No.38/1123 ME/Exhibit P7FIR in respect of the offences under Section 9(i)cl.(a) read withSection 2 cl.6 of Act I of 1122 ME. It is in respect of the sameoffences and the same case connected with the person by nameRamankuttyKarunakaran; who was recommended by the StateGovernment and the pension under the SSSP Scheme wasgranted by the Central Government as per Exhibit P12 order.Convict Number of the said person is '9573' and that of thedeceased husband of the petitioner is '9572', being involved inthe very same proceedings and having undergone detention formore than six months as given in Exhibit P1 jail certificate. Whenpositive benefits have been given to a co-accused/convict inrespect of the same case and same set of offences, reckoning thecontribution made by the concerned person as a participant ofthe freedom struggle, there is no justification on part of therespondents for rejecting the similar claim in respect of the samecause and contribution made by the deceased husband of thepetitioner.
14. True, there is some substance in the contention raisedby the learned Central Government Standing Counsel on behalfof the first respondent that, merely for the reason that benefitshave been granted to somebody else by way of mistake, the samecannot be extended to the deceased husband of the petitioner byway of writ of mandamus. In other words, the benefits, if any,granted by way of 'mistake' is not liable to be perpetuated by theissuance of a writ of mandamus. This position of law is wellsettled as declared by the Apex Court in ChandigarhAdministration v. Jagjit Singh (AIR 1995 SC 705). There isabsolutely no dispute over the said legal proposition. But, thequestion is whether, granting of benefit to the person named inExhibit P11, recommended by the State Government andsanctioned by the first respondent/Union vide Exhibit P12, is byway of mistake or not. There is absolutely no pleading either inthe counter affidavit or in the additional counter affidavit filed bythe first respondent, nor in the counter affidavit of the secondrespondent, that granting of the benefit to the person concernedin Exhibit P12 was by way of any such mistake. In the saidcircumstance, this Court has to arrive at a finding that thebenefits granted to the said person, on substantiating thecredentials, has necessarily to be extended to the petitioner aswell in view of the involvement of her deceased husband in thefreedom struggle and the conviction and the sentence undergoneby the said person, along with the person named in Exhibit P11,in favour of whom Exhibit P12 order has been passed. As such,the impugned orders are no more liable to be sustained. It isordered accordingly and Exhibits P9 and P13 are set aside.
15. The second respondent State of Kerala is directed tomake necessary recommendation along with all the relevantparticulars to the first respondent, with specific reference toExhibits P11 and P12 within a period of two months, on receiptof which, the matter shall be considered by the first respondentin the light of the above observations and Exhibits P11 and P12and pass appropriate orders in accordance with law, asexpeditiously as possible. The benefits flowing therefrom, to theextent as payable, shall be disbursed within three months fromthe date of receipt of the recommendation from the StateGovernment as aforesaid.
16. It is also made clear that, since the law stands settledby virtue of the declaration made by the Apex Court in Union ofIndia v. Kaushalayadevi ((2007) 9 SCC 525)) and this Court inPuthusseriValiya Veettil Thambayi Amma v. Union ofIndia (2011 (2) KHC 891), the beneficiary is entitled to have thepension with effect from the date of receipt of the application,when the claim is supported by 'primary evidence', i.e., the jailcertificate, unlike other cases sought to be substantiated bysecondary evidence, where it shall be with effect from the date ofthe order. In the instant case, since the claim is substantiated onthe basis of the primary evidence, i.e., jail certificate, it has to befrom the 'date of the application' and non-receipt of the Staterecommendation shall not stand in the way, as made clear by theApex Court in the aforesaid decision.
The writ petition is allowed. No costs.