Kerala High Court
N.Krishnankutty @ Swarnappan vs Union Of India on 22 June, 1981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939
WP(C).No. 29825 of 2012 (C)
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PETITIONER:
-----------
N.KRISHNANKUTTY @ SWARNAPPAN,
FREEDOM FIGHTER, THAMRAPATHRA NO.17/1972,
KADAYARA PUTHEN VEEDU,
OLIPPUNADA, NARUVAMMOODU P.O., NEMOM,
THIRUVANANTHAPURAM.
BY ADV. SRI.D.KISHORE
RESPONDENTS:
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1. UNION OF INDIA,
REPRESENTED BY ITS DEPUTY SECRETARY,
MINISTRY OF HOME AFFAIRS,
GRIHMANTHRALAYA FREEDOM FIGHTER DIVISION,
NDCC PHASE - II, NEAR YMCA, JAI SINGH ROAD,
NEW DELHI - 110001.
2. STATE OF KERALA, REPRESENTED BY
ITS PRINCIPAL SECRETARY
GENERAL ADMINISTRATION (FFP-A) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM - 695 001.
R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SHRI.C.K.JAYAKUMAR, CGC
R2 & R3 BY SRI.RANJITH THAMPAN, ADDL.ADVOCATE GENERAL
SENIOR GOVT. PLEADER SRI.SAIGI JACOB PALATTY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-04-2017, THE COURT ON 28-06-2017 DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 29825 of 2012 (C)
--------------------------
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P-1: TRUE COPY OF THE CERTIFICATE DATED 22.6.1981 ISSUED BY
THE SUPERINTENDENT OF GENERAL HOSPITAL,
THIRUVANANTHAPURAM.
EXT.P-2: TRUE COPY OF THE ORDER NO.24275/FIN/D/R.DIS
DATED 29.9.1972 OF THE 3RD RESPONDENT.
EXT.P-3: TRUE COPY OF THE THAMRAPATHRA CERTIFICATE AWARDED TO
THE PETITIONER.
EXT.P-4: TRUE COPY OF THE INTIMATION LETTER DATED 9-74 OF THE
SPECIAL SECRETARY, PUBLIC FREEDOM FIGHTER'S PENSION
DEPARTMENT.
EXT.P4(a): TYPED COPY OF EXHIBIT P4.
EXT.P-5: TRUE COPY OF THE REPRESENTATION DATED 27.7.2012 WITH
POSTAL RECEIPT TO 1ST RESPONDENT.
EXT.P-6: TRUE COPY OF THE COMMUNICATION FROM SUPERINTENDENT OF
POSTS, THIRUVANANTHAPURAM SOUTH DATED 27.8.2012.
EXT.P-7: TRUE COPY OF THE JUDGEMENT DATED 20.7.2012 IN
WPC.31027 OF 2011 OF THIS HONOURABLE COURT.
EXT.P-8: TRUE COPY OF THE COMMUNICATION DATED 14.9.2012 OF THE
1ST RESPONDENT TO 2ND RESPONDENT.
EXT.P-9: TRUE COPY OF THE PROCEEDINGS NO.97839/FFP-A1/2011/GAD
DATED 16.10.2012 OF THE 2ND RESPONDENT.
EXT.P-10: TRUE COPY OF THE APPLICATION FOR PENSION SUBMITTED BY
THE PETITIONER ON 5.11.2012.
EXT.P-11: TRUE COPY OF THE PROCEEDINGS NO.52/CC/K/111/2011-FF
(SZ) DATED 22.11.2012 OF THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
"C.R"
ALEXANDER THOMAS, J.
-----------------------------
W.P.(C).No.29825 Of 2012
---------------------------------
Dated this the 28th day of June, 2017.
J U D G M E N T
The writ petitioner herein has participated in a movement in connection with National Freedom Struggle, which is popularly known as "Petta Shooting Incident" on 13.7.1947 at Petta, Thiruvananthapuram, Kerala, in which he had sustained a gun shoot injury below the knee, which led to amputation of his leg. The petitioner is getting the State Freedom Fighters Pension since 1.4.1971 as per Ext.P-2 order dated 29.9.1972, in terms of the provisions contained in the State Freedom Fighters Pension Scheme. By Ext.P-3, the petitioner has been honoured with the "Thamrapathra" by the Government of India on 15.8.1972, which was awarded to him by V.K.Krishna Menon, (former Defence Minister of the country during the period 1957-1962), who was the then Member of Parliament representing the Thiruvananthapuram Lok Sabha Constituency during 1971-1974. The petitioner has submitted application for Freedom Fighters Pension under the Central Government Scheme through State Government on 14.6.1973 vide Ext.P-4 and the same was duly ::2::
W.P.(C).No.29825 Of 2012 forwarded by the State Government to the Central Government on 13.9.1974 as evident from Exts.P-4, P-4(a)(1) and P-4(a)(2).
Petitioner's consistent pleas to secure Central Freedom Fighters Pension, has fallen on deaf ears. The petitioner was incapacitated on account of the amputation of his right leg due to the gun shot injury. He has lived a life of solitude with none to look after him, as he is unmarried.
Despite all these tragic situations, he had done his level best within his limited constraints to alert both the State Government, who is the recommending authority as well the Central Government to grant him Central Pension. Ultimately, pursuant to Ext.P-7 judgment dated 20.7.2012 passed by this Court in W.P.(C).No.31027/2011, the process of serious consideration was set in motion and the Central Government as per the impugned Ext.P-11 proceedings dated 22.11.2012 has rejected the claim of the petitioner on the main ground that the "Petta Firing Incident" is not a recognized movement of the freedom struggle for the purpose of grant of pension under the Swatantrata Sainik Samman (SSS) Pension Scheme, 1980. It is this order that is under challenge in this proceedings. The prayer in this Writ Petition (Civil) are as follows:
"a. Call for the records leading to the passing of Exhibit P11 and quash the same by issuing a writ of certiorari or any other appropriate writ, direction or order.
::3::
W.P.(C).No.29825 Of 2012 b. Declare that the petitioner is entitled to get the benefit of Swatantra Sainik Samman Pension Scheme 1980 with actual arrears due to him, on the basis of Exhibits P3 Thamrapathra.
c. issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to reconsider the grant of Swatantra Sainik Samman Pension to the petitioner with the actual arrears from the year 1973 in the light of the dictums laid down by this Honourable Court in Sankunny K.N. v. Union of India and another reported in 2012 (3) KHC 692 (DB) and in Union of India v. Radhamony reported in 2005 (4) KLT 27, as expeditiously as possible.
d. grant such other reliefs which this Honourable Court may deem fit and proper in the interest of justice."
2. Heard Sri.D.Kishore, learned counsel for the petitioner Sri.N.Nagaresh, learned Assistant Solicitor General, instructed by Sri.R.Suvin Menon, learned counsel appearing for the 1st respondent Central Government, Sri.Renjith Thampan, learned Additional Advocate General, instructed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for R-2 & R-3 (State of Kerala and District Collector, Thiruvananthapuram).
3. This Court had earlier heard the matter in extenso and had passed a detailed order dated 9.1.2017 clearly finding therein that the stand of the Central Government that the "Petta Firing Incident" is not a part of the freedom struggle for the purpose of grant of Central Pension is absolutely wrong and untenable. Consequently directions were also issued to respondent State authorities to issue necessary certificates to the petitioner. The order dated 9.1.2017 passed by this Court in this ::4::
W.P.(C).No.29825 Of 2012 Writ Petition reads as follows:
'Theabove captioned Writ Petition (Civil) has been instituted by an octogenarian, who has been duly recognized as a freedom fighter by the 2nd respondent State of Kerala, as evident from Ext.P-2 proceedings dated 29.9.1972 issued by the 3rd respondent District Collector, in terms of the provisions contained in the Kerala Freedom Fighters' Pension Rules, 1971, (published in the Kerala Gazette No.22 dated 18.6.1971). The petitioner had participated in the freedom struggle in the erstwhile princely State of Travancore, which is now forming part of the State of Kerala, in the incident, which is popularly known as "Pettah Shooting", at Thiruvananthapuram, on 13.7.1947.
2. It is stated that the petitioner has suffered a serious gun shot injury in the thigh, which resulted in amputation/loss of his right leg below the knee, as referred in Ext.P-1 medical certificate as well as Ext.P-2 proceedings, due to his participation in the said movement, which took place on 13.7.1947. After coming into force of the Kerala Freedom Fighters' Pension Rules, 1971, the petitioner had duly submitted his application for the benefit of freedom fighter's pension and the State authorities concerned had conducted a detailed inquiry strictly in terms of the provisions contained in the State Rules and upon their inquiry, it was found that the petitioner was a genuine participant in the said Pettah shooting incident, that took place on 13.7.1947 and that he had suffered amputation/loss of his right leg below the knee. The medical records maintained at the general hospital, Thiruvananthapuram, had clearly disclosed that the petitioner was then admitted in that hospital on 29.11.1122(ME) and was discharged on 28.12.1122 (ME), due to gun shot injury on the thigh and further inquiries by the 3rd respondent District Collector, who is the competent authority to conduct such inquiry, had found that he had also suffered loss/amputation of his right leg below the knee and thereupon, the 3rd respondent District Collector the competent authority had issued Ext.P-2 proceedings No.24275/Fin.D/R.Dis. dated 29.9.1972, sanctioning Kerala freedom fighter's pension to the petitioner @ Rs. 50/- per mensem with effect from 1.4.1971, which is the date of deemed coming into force of the said Kerala Freedom Fighters' Pension Rules, 1971.
It also appears that the State Government authorities had also strongly recommended the name of the petitioner for the grant of "Thamrapathra" by the Prime Minister of the country and accordingly, it appears that the competent authorities of the Central Government had also conducted their inquiries and found that the petitioner is deserving for the grant of the special recognition and to be the recipient of "Thamrapathra" to be awarded by the Prime Minister of the nation on the 25th year of the Indian Independence for remembering the freedom fighters and martyres, who had participated in the glorious freedom struggle of the country. Accordingly, the Central Government authorities have issued Ext.P-3 "Thamrapathra" award of the Prime Minister of the nation as evident from Ext.P-3 dated 15.8.1972. The English ::5::
W.P.(C).No.29825 Of 2012 translation of Ext.P-3 reads as follows:
"(National Emblem).
25th years of Independence This Thamrapathra is presented by Smt.Indira Gandhi, the Prime Minister on behalf of the Nation for Memorable Participation in Independence Struggle.
N.krishnankutty, (Swarnappan) Kadayar Puthen Veedu, Olippunada Marukil, Nemom,Thiruvananthapuram.
15th August, 1972 24th Sravan 1894 (Saka Era)."
3. The Central Government had formally framed the Central Government Freedom Fighters' Pension Rules, 1972, which had commenced from 15th August, 1972, for grant of freedom fighters' pension to the living freedom fighters and their families and if they are no more alive and to the families or martyrs etc. Accordingly, the petitioner had also preferred an application under the scheme in June, 1973, through the State Government authorities, which is seen received by the Central Government authorities on 30.9.1974, as evident from Ext.P-4/Ext.P-4(a) acknowledgment receipt issued by the Central Government. The legible type written copy of Ext.P-4 has been produced as Ext.P-4(a), which reads as follows:
"G O V E R N M E N T O F K E R A L A PUBLIC (FREEDOM FIGHTERS PENSION) DEPARTMENT No.96242/FFPPY/PD. Government Secretariat, Trivandrum, dated 9-'74.
Sub:- Govt. of India scheme of pension to freedom fighters -
Enquiry report on duplicate copy of the applications forwarded - Intimating of --
Ref:- Duplicate copy of your applications dated 14.6.'73.
I am to invite a reference to the above and to inform you that your application has been forwarded to "The Secretary to Government of India, Ministry of Home Affairs, New Delhi", on 13-9.'74. Further correspondence, if any, in the matter, may be had with the Ministry of Home Affairs, Government of India.
Yours faithfully, Sd/- (for SPECIAL SECRETARY)"
Ext.P-4(a)(2) given on page 17 of the paper book of the Writ Petition is the photocopy of the postal envelope, in which Ext.P-4/Ext.P-4(a) communication from the State Government was received by the petitioner in the year 1974. It is averred that the petitioner was incapacitated due to the amputation of his right leg below the knee and the petitioner is not married and that therefore there was no one to look after his highly incapacitated stage and nothing was heard either from the State Government authorities or from the Central Government authorities about the fate of application submitted by the petitioner for grant of Central freedom fighters pension. Thereupon, the petitioner was advised to submit Ext.P-5 representation dated 2.7.2012 to the ::6::
W.P.(C).No.29825 Of 2012 respondent Central Government, pointing out that the earlier application submitted by the petitioner to the Central Government was bearing No.SZ/10/1085/74/FFI/VI(K), etc. and further that the petitioner is suffering from old age aliments and completely bedridden and is totally disabled due to the amputation of the right leg in connection with the said freedom movement incident, and that the Central Government may take immediate steps to grant him freedom fighter's pension in pursuance of his application, which was received by the Central Government as early as in the year 1974 and to grant him freedom fighter's pension, etc. It is averred that a grand function was conducted, whereby Ext.P-3 Thamrapathra was awarded to the petitioner on 15.8.1972 by none other than Shri.V.K.Krishna Menon, the former Defence Minister of the country (during the period 1957-1962), who was then Member of Parliament representing Trivandrum Lok Sabha Constituency (during 1971-1974). Ext.P-5 representation was acknowledged by the 1st respondent Central Government as per Ext.P-6 dated 27.8.2011. Since no further action was forthcoming, the petitioner was constrained to institute a Writ Petition (Civil), as W.P.(C).No. 31027/2011, before this Court impleading the present respondents. The Central Government had taken the stand that they had not received the requisite verification- cum-entitlement report from the State Government, which is necessary for processing the application and taking a decision. The petitioner's counsel had pointed out before this Court that the petitioner is seriously ill and is fully laid up and unable either to submit a fresh application or produce any further materials and that therefore the 1st respondent Central Government may be directed to take a decision at the earliest, in the light of the available materials, etc. This Court had disposed of the said Writ Petition as per Ext.P-7 judgment rendered on 20.7.2012 and had directed the Central Government to consider the request of the petitioner on the basis of the available materials, which have been forwarded by the petitioner and the State Government to the Central Government and take a decision therein within a period of 2 months, etc. The 1st respondent Central Government had sent Ext.P-8 letter dated 18.9.2012 to the 2nd respondent State Government pointing out that at this distance of time the petitioner's proforma application or the State Government verification-cum- entitlement for pension report is not available with the Union Ministry and that the State Government may forward the requisite documents to the Central Government urgently so as to comply with the directions issued by this Court as per Ext.P-7 judgment.
4. The State Government instructed the petitioner as per Ext.P-9 dated 16.10.2012, in order to enable them to forward verification-cum-entitlement report to the Central Government, the petitioner should provide at least a copy of the application submitted in the year 1974 with copies of the documents or to furnish a fresh application with acceptable documents, as contemplated in the Central Scheme. The petitioner had pointed out to the State Government authorities that he is fully laid up and is totally incapacitated due to the amputation of his right leg and that he is living in solitude and that the requisite documents as in Ext.Ps-1, P-2 and other ::7::
W.P.(C).No.29825 Of 2012 documents were already made available and that it will be very difficult for him to submit any further documents, in view of his total immobility and incapacitation. However, as a matter of abundant caution, the petitioner had submitted Ext.P-10 application dated 5.11.2012 in the necessary proforma making available copies of all requisite documents, which were referred to therein, including Exts.P-1, P-2, P-3, etc. and an affidavit dated 5.11.2012.
5. The Central Government as per the impugned Ext.P-11 order dated 22.11.2012 had rejected the claim of the petitioner mainly on the ground that the Pettah shooting incident at Thiruvananthapuram, which occurred on 13.7.1947, cannot be said to be a part of the freedom struggle of the country as recognized by the Central Government to be part of the national freedom struggle for the purpose of grant of revised Central Freedom Fighters Pension, which is now nomenclatured as the Swatantrata Sainik Samman (SSS) Pension Scheme, 1980. Certain other technical grounds are also stated in Ext.P-11 that the petitioner has not submitted the requisite certificate from the District Magistrate/ District Collector that he is suffering from incapacitation due to participation in the freedom struggle incident and that Ext.P-1 medical certificate issued by the Superintendent, General Hospital, Thiruvananthapuram does not clearly certify that the petitioner had suffered a gun shot injury due to his participation in the recognised freedom struggle or the gun shot made him permanently incapacitated. It is this order that is under challenge in the present Writ Petition.
6. The matter was heard in extenso. The learned Addl. Advocate General was requested to assist this Court by appearing on behalf of R-2 and R-3.
Apart from the empanelled Central Government Counsel, who is appearing in this case (Sri.C.K.Jayakumar) this Court also specifically directed Sri.N.Nagaresh, learned Assistant Solicitor General to appear in this case and to effectively assist this Court in the resolution of the issues posed in this matter.
7. A reading of the separate counter affidavits filed by the 1st respondent Central Government as well as the 2nd respondent State Government would give an indication that their respective stands are as if the Pettah firing incident that took place on 13.7.1947 is part of the freedom struggle that is recognised by the State Government for the purpose of their scheme, but that the said incident is not recognised by the Central Government for the purpose of the Central scheme. Further, the State Government has also made averments to justify their refusal to issue the verification-cum-entitlement report and also to support the stand of the Central Government regarding the so-called inadequacies of Ext.P-1 medical certificate and other technical details stated in the impugned Ext.P-11 order.
8. The State Government is the recommending authority for the purpose the grant of the pension under the Central scheme. It is not in dispute that the State Government authorities fully acknowledged the correctness of the petitioner's claim for the grant of the State Government pension, based on the certificates as in Exts.P-1 and P-2, etc. It is pointed out that some other requirements in the State ::8::
W.P.(C).No.29825 Of 2012 scheme are quite distinct from that in the Central scheme and vice-versa and that therefore the mere grant of pension under the State scheme will not entitle a claimant to be the recipient of the pension under the Central scheme.
9. Rule 4 of the Kerala Freedom Fighters' Pension Rules, 1971, defines the scope of the expression, "freedom fighter" as understood in the context of the State scheme, which reads as follows:
"Rule 4. In these rules, a Freedom Fighter means any person who on account of participation in the National Movement;
(a) had been sentenced to imprisonment for not less than six months; or
(b) had been kept under detention (including detention as under-trial prisoner for
not less than six months; or
(c) was killed in action; or
(d) was sentenced to death; or
(e) died due to police or military firing or lathi charge; or
(f) lost his/her job or means of livelihood or the whole or substantial part of
his/her property; and
(g) became permanently incapacitated due to such participation or affected with
grave disease for life.
Note to rule 4.-- Deserving and hard cases in which pension cannot be granted because the periods of incarceration falls short of six months may be reported to Government by the District Collector for decision."
10. It is not in dispute that the petitioner's claim for the grant of the State pension was solely based on clause (g) of Rule 4, which is that the claimant should have become permanently incapacitated due to such participation or affected with grave disease for life. Rules 5 and 6 of the State scheme read as follows:
"Rule 5:- In these Rules, National Movement means a movement against the British Government in India or any Government within the country supported by it.
Rule 6:- This definition will cover only participants in all freedom movements till 15th August, 1947 within the confines of the present State of Kerala and will also include those who had participated in the Goa Liberation Movement and the Liberation of Mahe from French Rule."
As per Rule 5 of the the State scheme, a "national movement" means a movement against the British Government in India or any Government within the country supported by it. As per Rule 6, the said definition would cover only participants in all freedom movements till 15th August, 1957 within the confines of the present State of Kerala and will also include those who had participated in the Goa Liberation Movement and the Liberation of Mahe from French Rule, etc. Therefore, it was earlier pointed out by the State Government Pleader that the Pettah firing incident, which took place on 13.7.1947, would certainly come within the ambit of Rules 5 and 6 of the State scheme, especially the latter part of Rule 5, inasmuch as it was a movement ::9::
W.P.(C).No.29825 Of 2012 against the Princely Government of the Travancore State as the said princely State was supported by British. Therefore, the implication of this argument of the State Government is that the petitioner had completely fulfilled the requirement of the State rules and after the conduct of the inquiries they were convinced that the petitioner is fully deserving for the State pension scheme as evident from Ext.P-2, etc. However, the petitioner need not necessarily satisfy those requirements under the Central scheme and it is for this reason, that the State Government has refused to issue the verification- cum-entitlement report, etc. To consider the tenability of this argument raised by the respondents, it would really be necessary to examine the scope of the Central scheme. True that the earlier the Central Government had enunciated Central Freedom Fighters' Pension Scheme, 1972, with effect from 15.8.1972, but the same has now been superseded by the new Central scheme called as "Swatantrata Sainik Samman (SSS) Pension Scheme, 1980, which has been notified on 15.8.1981. A copy of the said scheme as well as its various enclosures as published in the website of the Central Government, has been duly made available for the perusal of the court, by the learned Assistant Solicitor General appearing for the 1st respondent. Rule 3 of the scheme deals with the issue as to "WHO IS ELIGIBLE". Rule 3 reads as follows:
"3. WHO IS ELIGIBLE?
For the purpose of grant of Samman pension under the scheme, a freedom fighter is:-
(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However,ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 01.08.1980.
EXPLANATION
1. Detention under the orders of the competent authority will be considered as imprisonment.
2. Period of normal remission upto one month will be treated as part of actual imprisonment.
3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered.
4. Broken period of imprisonment will be totalled up for computing the qualifying period.
(b) A person who remained underground for more than six months provided he was:
1. a proclaimed offender; or
2. one on whom an award for arrest/head was announced; or
3. one for whose detention order was issued but not served.
(c) A person interned in his home or externed from his district provided ::10::
W.P.(C).No.29825 Of 2012 the period of internment/externment was six months or more.
(d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle.
(e) A person who became permanently incapacitated during firing or lathi charge.
(f) A person who lost his job (Central or State Government) and thus means of livelihood for participation in national movement.
A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British."
In the instant case, the sole focus of the petitioner's claim is that he completely fulfilled the eligibility conditions as laid down under Rule 3(e) of the Central Scheme, 1980. The petitioner has no case whatsoever that he had suffered imprisonment or that he had remained underground or that he was convicted in a trial, etc. or that he was a proclaimed offender, etc. Therefore, this Court need to focus only on the eligibility as laid down in Rule 3(e) of the Central Scheme, 1980, which reads as follows: "A person who became permanently incapacitated during firing or lathi charge." Therefore, regarding this aspect of the claim of the petitioner, it is to be noted that the basic eligibility condition, which is to be satisfied by the petitioner in the State scheme [as per Rule 4(g) of the State scheme] as well as in the Central Scheme [as per Rule 3 (e)] are one and the same and that if a person like the petitioner has become permanently incapacitated during firing or lathi charge, which has happened due to his participation in one of the freedom struggle movements, which is recognised duly by the Central Government, then he is eligible, not only under the State scheme but also under the Central scheme, in the light of the nature of the factual claim made by the petitioner. But the most important issue is as to whether the "Trivandrum Pettah shooting incident" which happened on 13.7.1947 is part of a freedom struggle, which has been duly recognised by the Central Government for the grant of pension under the Central scheme. Rule 4 under the SSS Pension Scheme 1980 is captioned, "WHAT ARE THE MOVEMENTS/MUTINIES CONNECTED WITH NATIONAL FREEDOM STRUGGLE." Rule 4 reads as follows;
"WHAT ARE THE MOVEMENTS/MUTINIES CONNECTED WITH
NATIONAL FREEDOM STRUGGLE
4. Apart from the mainstream of the liberation struggle the movements/mutinies which were directed against the British (French in case of Pondicherry and Portugues in case of Goa) with freedom of the country as its ultimate goal are also treated as part of National Freedom Struggle for the purpose of grant of pension unless any movement(s) is specifically decided as not qualifying for the grant of Samman pension.
The Movements for merger of erstwhile Princely States within the Indian Union after 15th August, 1947 and the freedom struggle in the former French and Portuguese possession in India (Colonies) are considered as part of the National Freedom Movement for the purpose of grant of Samman ::11::
W.P.(C).No.29825 Of 2012 Pension under Scheme."
11. A reading of the above Rule of the Central Scheme does not by itself make it clear that an incident like the Pettah firing incident, which happened in Travancore Princely State on 13.7.1947, would necessarily fall within the scope and ambit of the said Rule 4. However, the first part of Rule 4 is a very broad and inclusive definition, which takes in within its fold, not only the main stream national struggle and the movements and mutinies associated with it, which were directed against the British [French in the case of Pondicherry and Portuguese in the case of Goa], with the freedom of the country as its ultimate goal, are treated as the national freedom struggle for the purpose of grant of pension, unless any movement is specifically decided as not qualifying for the grant of SSS pension. It is not in dispute that the Pettah firing incident does not come within the exclusionary clause of the first part of Rule 4 and this aspect is so fairly stated by the learned Assistant Solicitor General appearing for the 1st respondent Central Government. However, as stated herein above, a reading of Rule 4 does not make it clear that the incident in the nature of Pettah firing, which happened in Princely Travancore State on 13.7.1947, would necessarily come within the ambit of the main clause of first part of Rule 4. However, the learned Assistant Solicitor General has made available various notifications issued by the Central Government as Anx.18 to the said Central Scheme, which shows the notified list of movements, mutinies/struggles, which are recognised for the purpose of the grant of Central Freedom fighters' pension by the Central Government. Item No.30 under Anx.18 list of movements, mutinies/struggles, etc. issued by the Central Government is "Anti Independent Travancore Movement". Along with the List, the Central Government has also given a brief resume of the nature of each of the 40 movements, which are included in Anx.18, as duly published in the website of the Union Ministry of Home Affairs. Item No.30 of Anx.18, "Anti Independent Travancore Movement" has been dealt with in page 30 of the website details, produced by the learned Assistant Solicitor General, which reads as follows:
"30 Anti-Independent Travancore.
The present State of Kerala is made up of three princely States, Travancore, Cochin and Malabar. When the British announced their withdrawal from India, the Diwan of Travancore, Sir. CP Ramaswamy Iyer announced that Travancore would establish itself as an independent State and would not join the Indian Union.
The action of Diwan aroused a bitter controversy inside and outside the State. Travancore was again in the vortex of a political struggle and the Government resorted to a series of repressive measures to meet the situation. One of the highlights of the struggle was a police firing at Pettah, Trivandrum, in which three persons including a student by name Rajendran were killed. A few days after the incident, an unsuccessful attempt was made on Sir C.P. Ramaswamy Iyer's life when the Diwan was attending a function in the Swathi Thirunal Academy of Music at Trivandrum on July 25, 1947. The Diwan escaped with minor injuries and very soon left the State for good. Immediately after this incident, the Maharaja intimated, to Lord Mountbatten, the Governor-General, about his decision to accept the ::12::
W.P.(C).No.29825 Of 2012 Instrument of Accession and take Travancore into the Indian Union. Sir C.P. Ramaswamy Iyer resigned the office of Diwan on 19 August 1947 and was succeeded in that office by P.G.N. Unnithan."
Therefore, it is beyond doubt that the Pettah firing incident, which happened in the year 1947, is certainly an integral part and parcel of the Anti independent Travancore movement, as recognised by the Central Government, as the firing incident at Pettah Trivandrum was the main incident, which triggered and flare up of the Anti Independent Travancore Movement, which later led to the incident on 25.7.1947 of attack on the then Diwan of the princely State, which paved way for his quitting the office and which also immediately led to the Maharaja of Princely State of Travancore intimating the Viceroy/Governor General about his decision to accept the Instrument of Accession so as to merge the Princely State of Travancore to be fully part of Union of India. To clear all further doubts, this Court had also made references to some of the authoritative text books of Travancore history written by eminent Academic, viz., Prof.A.Sreedhara Menon, in his eminent treatise, "Kerala and Freedom Struggle"
published by DC Books, along with its Malayalam Translation "g5x{Ua" Xb^DdLc XNxUa"" ("Kerala and Freedom struggle"). Page 112 of the English Version of the said work, "Kerala and Freedom Struggle" authored by Prof.Sreedharan Menon, reads as follows:
"Accession of Travancore to the Indian Union.
While negotiations for the transfer of power to Indian hands were going on in Delhi, Sir. C.P.Ramaswami Aiyar took shelter under the British declaration of the lapse of Paramountcy over Indian States and announced on June 11, 1947 that Travancore would set itself up as an independent sovereign state. The action of the Diwan roused deep resentment among the people. The State Congress decided to thwart the move by launching another campaign of direct action aimed at the achievement of responsible government for Travancore as an integral part of the Indian Union. The State Government responded by initiating a series of repressive measures to shatter the morale of the people.
Thiruvananthapuram witnessed in those days some of the worst scenes of police repression. The police opened fire at a public meeting held at Pettah, killing three persons including a student by name Rajendran (July 13, 1947) A few days after this incident an attempt was made on the Diwan's life when he was coming out of the Swati Tirunal Academy of Music after attending a music concert (July 25, 1947). The assailant was K.Chidambaram Subramania Aiyar (otherwise known as K.C.S. Mony). He belonged to the Kerala Socialist Party led by N.Srikantan Nair. Mony escaped from being caught by the police. The public came to know about the identity of the assailant only several years after the incident. The assailant, however, missed his aim and Sir.C.P.Ramaswami Aiyar, though seriously wounded, had a narrow escape. The Diwan left Thiruvananthapuram for good and immediately thereafter the Maharaja telegraphed to Lord Louis Mountbatten intimating Travancore's acceptance of the Instrument of Accession and the Standstill Agreement as a prelude to its formal accession to the Indian Union."
::13::
W.P.(C).No.29825 Of 2012 This Court had also referred to another work of same author, titled "Triumph and Tragedy in Travancore" (Annals of SIR CP's Sixteen Years). Page 246, reads as follows:
"Maharaja's declaration of independence:
The agitation in Travancore against the independence move took serious turn on July 13, 1947 when the police resorted to firing at a public meeting held at Pettah in Thiruvananthapuram City. Three persons including a student by name Rajendran were killed in this firing. The incident provoked widespread condemnation of the policies being pursued by the Government. Nevertheless, Maharaja Sri.Chithira Thirunal in an address broadcast over the Thiruvananthapuram Radio on July 18, 1947, the date on which the Indian Independence Act was passed by the British Parliament, declared that with effect from August 15. 'Travancore will resume its independence and sovereignty in full measure'."
12. All the abovesaid authoritative text books on the history of freedom struggle in Travancore clearly show that the Pettah incident had happened at Pettah near Thiruvananthapuram on 13.7.1947, which led to the later incident on 25.7.1947 in respect of the attack against the then Diwan, which paved way for his quitting the office and the Travancore princely State's acceptance of instrument of accession, which resulted in for the Travancore princely State's formal accession to the Indian Union, etc. Therefore, though the website materials notified by the Central Government (page 30 of the said materials) do not exactly show the date of the Pettah incident, the authoritative text books on history clearly show that the said incident was on 13.7.1947. Therefore, it goes beyond doubt that the Pettah firing incident, which took place in Travancore State on 13.7.1947 is part and parcel of the freedom movement as duly recognised by the Central Government for the purpose Central freedom fighter's pension scheme and the contra stand taken by the Central Government and the State Government in their pleadings, is absolutely untenable and unsustainable. During the course of the hearing, Sri.N.Nagaresh, learned Assistant Solicitor General as well as Sri.Ranjith Thampan, learned Addl. Advocate General appearing for the State of Kerala had clearly stated that the stand taken in the impugned order as well as in the counter affidavits filed in support of the respondents' claims are incorrect and wrong and that the participation of the Pettah firing incident, subject to other requirements in the scheme, would make a claimant eligible, not only under the State Scheme but also under the Central scheme. A photograph of the petitioner was also made available by Sri.D.Kishore, learned counsel appearing for the petitioner, which reveals that the right leg of the petitioner is amputated. Ordinarily this Court would not have examined such a photograph. Moreover, the factum of the petitioner's amputation of the right leg is clearly testified by none other than the State Government in Ext.P-2. This Court on an examination of the photograph is fully satisfied that the claim of the petitioner as clearly certified by the State Government authorities in Ext.P-2 is genuine. The photograph was also shown to the learned Advocates appearing for the respondents.
13. Therefore, now what is to be considered is as to the procedural aspects of the matter. The learned Assistant Solicitor General has taken this Court's attention to Clause 2.5 of Anx.2 of SSS Scheme, 1980, which deals with ::14::
W.P.(C).No.29825 Of 2012 eligibility conditions and evidentiary requirements, which reads as follows:
"2.5 In case of permanent incapacitation :
(a) certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/lathi charge sustained during participation in the National Freedom Struggle and
(b) Medical certificate from the Civil Surgeon in support of the handicap."
So also, the learned Assistant Solicitor General had taken this Court's attention to Rule 8 of the SSS scheme, 1980, which reads as follows:
"8. ISSUE OF SANCTION ORDER The receipt of advance copy of application form is acknowledged. The claim of the applicant will be scrutinized in the State Government/Union Territory administration in consultation with State Advisory Committee on the basis of copy of application submitted to them. After receipt of State verification and entitlement to pension report, the claim of the applicant is scrutinized and if found eligible Pension is granted. Sanctions are issued as applications are scrutinized and conveyed to the Accountant General of the areas with copies to the Chief Secretary of the State Government/UT Administration and the Collector/DC of the District concerned. Simultaneously, a communication conveying sanction of pension as also the amount of pension is issued to each grantee. Applicants whose applications are not approved are duly informed."
14. The learned Assistant Solicitor General submitted that for the effective consideration of the petitioner's claim, a formal certificate should be produced before the District Magistrate stating that the permanent incapacitation had occurred due to bullet injuries/lathti charge, as the case may be, sustained during the participation in the national freedom struggle and further that a medical certificate from a civil surgeon is also required in support of the factum of handicap. Though that is the provision in Rule 2.5, a more stringent requirement is referred to in para 4
(iii) of Ext.P-11 rejection order dated 22.11.2012 issued by the 1st respondent State Government, which says that the rejection is on account of the fact that there is no medical certificate that the petitioner suffered gun shot due to participation in a recognised struggle or that the gun shot made him permanently incapacitated. Sri.Nagaresh, learned Assistant Solicitor General has fairly submitted that the said requirement in relation to the civil surgeon need not be insisted and what is required is a certification by the District Magistrate as referred to in Clause (a) of 2.5 of Anx.2 from the District Magistrate and further a medical certificate from the requisite civil surgeon to show that the the petitioner is suffering from permanent incapacitation, as per Clause 2.5(b).
15. In the light of these aspects, this Court is of the considered view that the State Government was legally bound to issue the necessary certificates by the District Magistrate/District Collector as well as by the Civil Surgeon concerned in terms of Clause 2.5 (a & b) of Anx.2 of the scheme, as they are fully bound by the facts testified by them in Exts.P-2 & P-1 and in view of the fact that the eligibility conditions ::15::
W.P.(C).No.29825 Of 2012 regarding permanent incapacitation are broadly identical in the State scheme and in the Central scheme. Therefore, once the State Government was fully satisfied as early as on 29.09.1972 as per Ext.P-2 that the petitioner is eligible for the grant of the freedom fighter's pension under the State scheme on account of his incapacitation suffered by him on his participation in the Pettah firing itself, then necessarily the State Governmental authorities like the District Collector, Superintendent of Govt. General Hospital, etc. should have issued certificates as required in the Central scheme. So also, equally the State Government was bound to issue the verification-cum-entitlement pension report to the Central Government in the case of the petitioner in support of his claim under the Central scheme, etc.
16. Ext.P-1 certificate issued by the Superintendent of Govt. General Hospital, Thiruvananthapuram on 22.06.1981 reads as follows:
'C E R T I F I C A T E Certified that Sri.Krishnankutty, 15 years, Kilikunnath, Anayara was admitted in this hospital on 29.11.1122 and he was discharged on 28.12.1122 due to "Gunshot injury Thigh".' General Hospital, Sd/-
Trivandrum, dt.22.6.81. SUPERINTENDENT"
It is admitted by all sides that the dates in Malayalam era shown in Ext.P-1 are in relation to the periods coinciding the Petta firing incident, which occurred on 13.07.1947. In fact, the petitioner has so clearly stated in Ext.P-10 application dated 05.11.2012, as can be seen from Page 33 of the paper book. Therefore, Ext.P-1 is a clear piece of primary evidence that the petitioner was admitted in the Govt. General Hospital, Thiruvananthapuram on 29.11.1122 (Malayalam era) and that he was discharged on 28.12.1122 (Malayalam era) due to "gun shot injury Thigh". The District Collector through the competent authorities concerned had conducted a detailed enquiry regarding the petitioner's claim for pension under the State Pension Scheme, 1971 and they were fully satisfied that the petitioner had participated in the Trivandrum-Pettah firing incident on 13.07.1947 and that it resulted in the loss/amputation of his right leg below the knee and this is so clearly testified to in Ext.P-2 dated 29.09.1972 by none other than the 2nd respondent District Collector, who is the competent authority under the State scheme. Therefore, in these circumstances, the State Governmental authorities were legally obliged to issue the certificates regarding physical incapacitation on account of the petitioner's participation in the Pettah firing on 13.07.1947, as required in Clause 2.5 (a & b) of Anx.2 of the Central SSA scheme, 1980. Presumably, there was no co-ordinated action at the hands of the State Governmental agencies concerned and due to the long lapse of time, none of the authorities like the District Magistrate, Superintendent of General Hospital or the State Government had focused their attention to these crucial relevant aspects, which would have dawned realisation on them that in the special facts of this case, they were bound to issue the necessary certificates and verification-
::16::
W.P.(C).No.29825 Of 2012 cum-entitlement report as per the central scheme in favour of the petitioner. The petitioner cannot be blamed for any delay on his part. The Central pension scheme had initially come in to force on 15.08.1972. The petitioner had submitted the application as early as on 14.06.1973, which is bearing No.SZ/10/ 1085/74/FF1/VI(K) as referred to in Exts.P-4, P-4(a), P-4(a2), P-5, etc. These materials are not in any manner, remotely challenged by any of the respondents. The only case of the respondents like the 1st respondent is that, by the long lapse of time, they could not trace out any of the materials relating to the first application of the petitioner submitted in the year 1973. It is stated in Ext.P-4 that the said application was received as early as on 13.09.1974. May be the officials were handicapped on account of their delay in not processing of the claim of the petitioner in time, when it was submitted in 1973-74 as referred to Ext.P-4(a). But the petitioner cannot be, in any manner, blamed for any delay on his part. Moreover, it is to be seen that the petitioner was fully incapacitated and he is leading a lonely life as a bachelor and his incapacitation would have prevented any marriage and the State Governmental authorities had honoured him with Ext.P-2 State pension and even none other than the Prime Minister of the country had honoured the petitioner by the grant of Ext.P-3 Thamrapathra, which was actually given to him by none other than Shri.V.K.Krishna Menon, the former Defence Minister of India. True that grant of Thamrapathra by itself cannot be said to be the be it and end it of all as regards the claim for the Central freedom fighters pension or that award of Thamrapathra alone by itself would constitute sufficient and necessary proof for the grant of the pension under the Central scheme. But certainly the grant of Thamrapathra is one of the vital pieces of material and relevant aspects, which have to be taken into account by the Central Government. However, without going to that aspect, it is clear that as regards the claim for incapacitation, the basic eligibility conditions in terms of the Rule 4 (g) of the State scheme as well as Rule 3 (e) under the Central scheme are broadly identical and similar. Therefore, the failure on the part of the State Government in not issuing requisite certifications including the verification- cum-entitlement report in favour of the petitioner is a great illegality committed by them. Sri.Ranjith Thampan, learned Addl Advocate General, instructed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for 2nd and 3rd respondents, has clearly stated before this Court that the State Governmental authorities concerned would be advised and instructed to ensure that these requisite certificates and reports in terms of the Central scheme would be issued without any further delay. Sri.D.Kishore, learned counsel appearing for the writ petitioner would further submit that the petitioner is now suffering from various old age ailments and that he is fully bedridden and that he should not be directed to appear before the District Magistrate or before the Superintendent of General Hospital for the formality for the issuance of the certificates, as there is none to look after him and he is leading the life of fully incapacitated person in solitude.
17. In the light of these aspects, it is ordered as follows:
(i) The 3rd respondent District Magistrate/District Collector may authorise a senior subordinate officer under him, preferably an officer on the rank of ::17::
W.P.(C).No.29825 Of 2012 Revenue Divisional Officer as well as Superintendent of the Govt. General Hospital, Thiruvananthapuram, to visit the petitioner in his residence so as to be directly convinced about the physical incapacitation suffered by the petitioner.
(ii) Thereafter,the 2nd respondent District Collector, Thiruvananthapuram, in his capacity as the District Magistrate, Thiruvananthapuram, will issue a certificate, in the light of the indisputable facts and circumstances disclosed from Exts.P-2 & P-1 that the petitioner is a participant in a Thiruvananthapuram-Pettah firing incident, which is part of the 'Anti-
Independent Travancore freedom movement', which took place on 13.07.1947 and that he has suffered gun shot injury on his thigh, which led to the loss/amputation of right leg below knee. So also, the Superintendent, Govt. General Hospital, Thiruvananthapuram, will issue a medical certificate certifying that the loss/amputation of right leg of the petitioner below his knee, has led to his permanent physical incapacitation and that in this regard, the petitioner was admitted in the said hospital on 29.11.1122 (Malayalam era) and was discharged therefrom on 28.12.1122 (Malayalam era) due to the said gun shot thigh injury, which led to his permanent physical incapacitation, etc. The certificates in this regard should be issued by them within a period of one week from the date of production of a copy of this order.
(iii) Thereafter these certificates issued by the District Magistrate as well as by the Superintendent, Govt. General Hospital, Thiruvananthapuram should be directly handed over by the 3rd respondent District Collector on the same day or the next day to the Secretary to Govt. of Kerala, who is in charge of the General Administration (FFP-A) Department. The Secretary to Govt. of Kerala, will thereafter ensure that the necessary verification-cum-entitlement report is issued in favour of the petitioner, in the prescribed proforma, if any, as per the Central SSA Pension Scheme, 1980.
(iv) The originals of the verification-cum-entitlement report of the State Govt. as well as the above said certificate of the District Magistrate and certificate of the Superintendent, General Hospital, Thiruvananthapuram, should be forwarded by the 2nd respondent Principal Secretary of the State Government with a covering letter and along with a copy of this order, to the competent authority of the Central Government in the Ministry of Home Affairs (Griha Manthralaya, Freedom Fighters Division), New Delhi, within a period of 5 days from the receipt of the certificates as mentioned above, by registered speed post.
(v) The copies of the abovesaid certificates and the verification-cum entitlement report along with the abovesaid forwarding letter of the State Government should be made available through a memo of the learned Addl Advocate General or that of the Senior Central Government Counsel along with a statement, if any. This should be done within a period of one week from the date of receipt of the certificates from the District Magistrate/District Collector and the Superintendent of General Hospital. Further directions will be considered on receipt of the said memo/statement to be filed on behalf of the State Government through the learned Senior Government Pleader. List on 30.1.2017.
As the matter has been almost fully heard, the case is treated as part-heard."
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W.P.(C).No.29825 Of 2012
4. The 1st respondent Central Government has filed a counter affidavit dated 12.2.2013 in this case, by reiterating various aspects contained in the impugned Ext.P-11 rejection proceedings dated 22.11.2012 and thus sought to justify their impugned decision. The 2nd respondent State Government has filed counter affidavit dated 23.11.2013. The State Government has also filed memo dated 30.1.2017 and additional memo dated 7.2.2017 and through those memos, 9 additional documents have been produced. Those 9 documents have been marked by this Court as Exts.R-2(a) to R-2(i).
5. Sri.Renjith Thampan, learned Additional Advocate General, instructed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for R-2 & R-3, would submit on the basis of instructions that in full compliance with this Court's order dated 9.1.2017, that the respondent State Government, District Collector, Thiruvananthapuram, and the Superintendent of General Hospital, Thiruivananthapuram, has issued the necessary reports and certificates in favour of the petitioner. The memo dated 27.1.2017 has also been filed by the learned Senior Government Pleader for conveying the instructions of the respondent State authorities and to produce the certificates and the reports issued in compliance with this Court's order dated 9.1.2017 filed on behalf of the respondent State authorities, which reads as follows:
"By order dated 09.01.2017, this Hon'ble Court had issued certain directions to be complied with by the District Collector, Thiruvananthapuram to authorize a Senior Subordinate Officer as well as the Superintendent of the Government General Hospital, ::19::
W.P.(C).No.29825 Of 2012 Thiruvananthapuram to visit the petitioner and to issue necessary certificates in the light of the said visit with the details of the physical incapacitation of the petitioner and thereafter, on receipt of the certificate from the District Collector as well as the Superintendent, General Hospital, the State Government was directed to ensure that necessary verification-cum- entitlement report is issued in favour of the petitioner and the originals of the verification-cum- entitlement report as well as the certificates issued by the District Magistrate and the Superintendent, General Hospital, was directed to be forwarded by the Principal Secretary of the State Government with a covering letter to the competent authority of the Central Government in the Ministry of Home Affairs, Freedom Fighters Division, New Delhi, within a specified period. There was a further direction to make available the copies of the aforesaid certificates and verification-cum-entitlement report along with the aforesaid forwarding letter of the State Government, through a memo of the learned Additional Advocate General. Accordingly, in compliance to the aforesaid directions, this memo is being filed enclosing the certificates issued by the District Collector, Thiruvananthapuram, the Superintendent, General Hospital, Thiruvananthapuram, verification-cum-entitlement report by the Joint Secretary to Government, General Administration Department and the covering letter issued from the State Government to the Secretary to Government of India, Ministry of Home Affairs together with the application etc., of the petitioner."
Ext.R-2(d) Certificate No.G2-3584/2017 dated 19.1.2017 issued by the District Collector, Thiruvananthapuram, states about the participation of the petitioner in the freedom struggle in the above said movement and that he is suffering from physical disability and below knee amputation beyond his right lower limb are due to gun shot injury suffered in the "Petta Firing Incident", which reads as follows:
"No.G2- 3584/2017 Collectorate, Civil Station
Kudappanakunnu. Thiruvananthapuram
Date: 19.01.2017.
Certificate
Certified that Sri.N.Krishnankutty allyas Swarnappan aged 88 years old residing at Kadayara Puthen Veedu, Olippunada, Naruvamoodu, PO Nemom Thiruvananthapuram is a recognized Freedom Fighter, who was awarded Thamrapatra No 17/1972 and known for his active participation in the infamous pettah shooting of July 1947. It is also certified that he has been suffering from Physical disability owing to below-Knee amputation of his right lower-limb performed after the(sic) suffered a gun-shoot injury during the pettah shooting episode suffering from age-related ailment resulting in decline of vision, hearing and memory. His daily needs are being catered by his niece, who resides in the neighboring household. I am also convinced that the celebrated freedom fighter is currently in a physically incapacitated state with restricted mobility and poor living conditions.
sd/-
District Collector & District Magistrate"
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W.P.(C).No.29825 Of 2012
6. Ext.R-2(e) letter No.C1-647/2017/GHT dated 21.1.2017 issued from the General Hospital, Thiruvananthapuram, and submitted through the Secretary to Government of Kerala, reads as follows:
"No: CI-647/2017/GHT General Hospital
Thiruvananthapuramm
Dated, 21-01-2017
From
The Superintendent
To
The Secretary to Government
GAD Government Secretariat
Thiruvanathpuram.
Sir,
Sub: - HSD-GHT-WPC.No.29825/12, field by N.krisnankutty-
Report Furnishing-Reg Ref:- 1. Lr.No.FFP-A1/6/2017/GAD Dated
2. Lr.No.AAG-RT/29825/2012/WPC o/o the AGO Ernakulam dated 13-01-2017 Kind attention is invited to the reference cited, I may furnished herewith the report regarding the certificates issued to Sri.N.Krishnankutty from this hospital. The certificate issued to Sri.N.krishnankutty Kilikunnath Anayara on 22-06-1981 is not seen in the medical record section of this hospital because of, as per the GO(MS) No.389/2009/H&FWD, dated 6-11-2009 the period of preservation and retension of medical records and registers in Govt hospitals under Health Department (Case records with medical legal importance is fifteen years), the case records up to 2000 were disposed.
Medical examination was done at the residence of Sri.N.Krishnankutty at 12:30PM on 18/01/2017 by the superintendent of this hospital including the Dr.Anilkumar, S,Chief Consultant (Physical medicine and rehabilitation) and RMO. Sri.N.Krishnankutty has right sided below knee amputation with flexion deformity of right knee with depressed wound scar right lower medial thigh, ambulant with a pair of axillary crutches. He has got general age related disability with deformities of foot left and both hands.
Sri.N.krishnankutty is permanently incapacitated due to the above said ailments.
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W.P.(C).No.29825 Of 2012 Yours faithfully, sd/-
Superintendent."
Consequently the State Government has also issued Ext.R-2(b) verification-cum-entitlement report in terms of the Central Scheme recommending that the petitioner is eligible and entitled for grant of Freedom Fighters Pension on account of his participation and injury suffered in the "Petta Firing Incident" and the said verification-cum-
entitlement report reads as follows:
"Verification-Cum-Entitlement report Sri.N.Krishnankutty, Thiruvananthapuram had filed a WP(C) 29825/12 before the Hon'ble High Court of Kerala against the non consideration of his application for Swatantrata Sainik Samman Pension by the Central Government. The Hon'ble High Court have issued an interim order in this regard. As per Interim order dated 09.01.2017 in the WP(C) No.29825/12 (copy enclosed), the Hon'ble High Court of Kerala ordered the State Government to forward a Verification -Cum- Entitlement reports as well as the Certificates of the District Magistrate and Superintendent, General Hospital, Thiruvananthapuram to the Central Government. Accordingly Government directed the District Collector, Thiruvananthapuram and Superintendent, General Hospital, Thiruvananthapuram to furnish the Certificates as ordered by the Hon'ble High Court of Kerala.
The Certificate issued by District Collector, Thiruvananthapuram shows that Sri.N.Krishnankutty is a recognised freedom fighter and a Thamrapatra holder (No 17/1972), who was awarded Thamrapatra for his active participation in the infamous Pettah shooting of July 1947. He has been suffering from physical disability owing to below- knee amputation of his right lower-limb performed after the(sic) suffered a gun shoot injury during the Pettah shooting episode, suffering from age-related ailments resulting in decline of vision, hearing and memory. The freedom fighter is currently in a physically incapacitated state with restricted mobility and poor living conditions.
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W.P.(C).No.29825 Of 2012 Superintendent, General Hospital, Thiruvananthapuram has informed that the Certificate issued to Sri.N. Krishnankutty on 22.06.1981 is not seen in the medical record section of the General hospital since the case records up to 2000 were disposed. Superintendent, General Hospital, Thiruvananthapuram has been made a Medical Examination at the residence of Sri.N.Krishnankutty on 18.01.2017 and also informed that Sri.N.Krishnankutty has right sided below knee amputation with flexion deformity of right knee with depressed wound scar right lower medial thigh, ambulant with a pair of axillary crutches. He has got general age related disability with deformities of foot left and both hands. Thus the Superintendent has certified that Sri.N.Krishnankuty is permanently incapacitated due to the above said ailments.
Government have already been forwarded the Swatantrata Sainik Samman Pension application and other documents of Sri.N.Krishnankutty vide letter 12375/FFPA1/2013/GAD dated 05.03.2013 (copy enclosed).
The petitioner is a participant in Pettah firing incident and was awarded Thamrapatra for his active participation in the said incident. Thus the Verification
-Cum- entitlement reports is issued.
Sd/-
REMESAN. M.K. Joint Secretary to Government General Administration Department Govt. Secretariat, Thiruvananthapuram Phone: 0471-2518159"
The respondent State Government has also issued Ext.R-2(a) letter No.FFP-A1/6/2017/GAD dated 25.1.2017 addressed to the Central Government whereby the above said verification-cum-entitlement report of the District Collector and report of the Superintendent of General Hospital were also enclosed. So also earlier letter dated 5.3.2013 issued by the State Government to the Central Government as well as the subsequent application submitted by the petitioner along with other supporting documents therein also have been forwarded to ::23::
W.P.(C).No.29825 Of 2012 the Central Government along with the above said letter dated 25.1.2017. The said Ext.R-2(a) letter dated 25.1.2017, reads as follows:
'Emblam GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFPA) DEPARTMENT No.FFP-A1/6/2017/GAD Thiruvananthapuram, Dated, 25.1.2017 From The Additional Chief Secretary to Government.
To The Secretary to Government of India, Ministry of Home Affairs, Government of India, Freedom Fighters Division, 2nd Floor, NDCC-11 Building, Jaising Road, New Delhi -110 001 Sir, Sub:- GAD-Interim order in WP(C) 29825/12-Verification-Cum-Entitlement report- forwarding of -regarding.
Ref:- 1). Interim order in WP(C) 29825/12 dated 09.01.2017 of the Hon'ble High Court of Kerala.
2). Letter No.G2-3584/2017 dated 19-01-2017 from the District Collector, Thiruvananthapuram.
3). Letter No.C1-647/2017/GHT dtd. 21/01/2014 from Superintendent, General Hospital,Thiruvananthapuram.
4) Government letter no 12375/FFPA1/2013/GAD dated 05.03.2013 I am to invite your attention to the references cited (copy enclosed) and to inform that Sri.N.Krishnankutty, Thiruvananthapuram had filed a WP(C) 29825/12 before the Hon'ble High Court of Kerala against the non consideration of his application for Swatantrata Sainik Samman Pension by the Central Government. The Hon'ble High Court have issued an interim order in this regard vide order referred 1st above and a copy of the said order is attached.
As per interim order dated 09.01.2017 in the WP(C) No.29825/12, the Hon'ble High Court of Kerala ordered the State Government to forward a Verification-cum-Entitlement reports as well ::24::
W.P.(C).No.29825 Of 2012 as the Certificates of the District Magistrate and Superintendent, General Hospital, Thiruvananthapuram, to the Central Government within a period of 5 days from the receipt of the Certificates from District Collector and Superintendent of Government General Hospital, Trivandrum. Copies of the Certificates are received in Government on 21.1.2017.
Government have already been forwarded the Swatantrata Sainik Samman Pension application and other documents of Sri.N.Krishnankutty vide letter referred as 3rd cited. A copy of SSS pension application, Interim order dated 09.01.2017 in the WP(C) No.29825/12 of the Hon'ble High Court of Kerala, other documents submitted by Sri.N.Krishnankutty along with Original Certificates received from District Collector, Thiruvananthapuram and Superintendent, General Hospital, Thiruvananthapuram and Verification-Cum-Entitlement reports recommended as per the directions of the Hon. High Court of Kerala are forwarded herewith for appropriate action at your end. Thus the direction of the Hon'ble High Court dtd 09.01.17 in WP(C) 29825/12 is complied with.
Yours faithfully, Sd/-
REMESAN. M.K. Joint Secretary For Additional Chief Secretary to Government.' On a previous occasion, on a specific enquiry posed by the Court as to whether those letters along with reports and certificates, etc., as per the State Government's Ext.R-2(a) letter dated 25.13.2017 has been duly received by the Central Government, it was then submitted by the learned Assistant Solicitor General that necessary confirmation in that regard could not be obtained and some more time is required to verify the same. Therefore, this Court had specifically directed the respondent State authorities to once again enquire whether the above said letter dated 5.3.2013 along with those contents have been duly forwarded by the State Government to the Central Government, etc., and thereupon the learned Senior Government Pleader has filed a memo dated 7.2.2017 producing the ::25::
W.P.(C).No.29825 Of 2012 authenticated photocopies of the Tapal Register and Speed Post Register maintained by the State Government wherein it is clearly shown that the above said letter along with those contents has been duly forwarded by the State Government to the Central Government on 25.1.2017 itself.
Now, it is confirmed by the learned Assistant Solicitor General that those letters and certificates have been duly received by the Central Government authorities concerned, etc.
7. Ext.P-1 certificate dated 22.6.1981 (issued by the Superintendent of General Hospital, Thiruvananthapuram, reads as follows:
'C E R T I F I C A T E Certified that Sri.Krishnankutty, 15 years, Kilikunnath, Anayara was admitted in this hospital on 29.11.1122 and he was discharged on 28.12.1122 due to "Gunshot injury Thigh".' General Hospital, Sd/-
Trivandrum, dt.22.6.81. SUPERINTENDENT' By Ext.P-2 proceedings dated 29.9.1972 issued by the 3rd respondent District Collector, Thiruvananthapuram, the petitioner has been granted State Freedom Fighters Pension and in Ext.P-2 it is clearly certified that he has lost right leg below the knee and Ext.P-2 reads as follows:
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W.P.(C).No.29825 Of 2012
"PROCEEDINGS OF THE DISTRICT COLLECTOR
Trivandrum
Order of Sanction of Pension
PENSION-GRANT OF PENSION TO FREEDOM FIGHTER
SHRI.N.Krishnankutty GRANT OF PENSION- ORDERED
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Order No.24275/Fin.D/R.Dis Dated : 29-9-1972
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Read-1. From Shri.N.Krishnankutty Application dated 25.6.1971
2. From the Tahsildar of Neyyattinkara Letter No.A4.1884/72 dated 26.2.1972 ORDER Sanction is accorded to the payment of a pension of Rs.50 per mensem to Sri.N.Krishnankutty alias Swarnappan residing at Neyyattinkara Taluk with effect from 1.4.1971 till death.
2. The identification marks of the pensioner are:-
(i) Lost the right leg below the knee.
(ii) A scar on the left side of the forehead.
3. The pensioner/payee should intimate any change of address at any time to the Collector, government and to the Treasury officer or Sub-Treasury officer without delay. Delay will result in the payment of pension being postponed.
4. This order is liable to cancellation, if it is found that the pension was sanctioned on mistaken grounds or on false information. Acct. No. allotted to the pensioner is Tvm/18/NA.
Sd/-
District Collector."
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8. This Court has given detailed reasonings for arriving at the considered conclusion that "Petta Firing Incident" which happened near Thiruvananthapuram, on 13.7.1947 is an integral part of Anti Independent Travancore Movement, which has been recognized by the Central Government for the grant of Freedom Fighters Pension.
Moreover in item No.30 of Anx-18 of the SSSP Scheme framed by the Central Government and which has also been duly published in the website of the Ministry, it is clearly stated therein that one of the highlights of the Anti Independent Travancore Struggle was the police firing at Petta, Thiruvananthrapuram, in which 3 persons, including a student by name Rajendran, were killed, etc. By a meticulous analysis of the provisions contained in the rules in the Central Scheme, it has already been clearly held in this Court's order dated 9.1.2017 that the petitioner is fully eligible and entitled for the grant of Central Pension and that itself would squarely come within Rule 4(g) thereof by which a person on whose account of participation in a recognized national movement has been permanently incapacitated due to such participation, etc., would fully come within the eligibility and entitlement zone of that rule. The reasonings and conclusions rendered in the detailed order dated 9.1.2017 would not require any further ::28::
W.P.(C).No.29825 Of 2012 reiteration and it is ordered that the said order dated 9.1.2017 is made absolute and the reasonings and conclusions in that order will be treated as part and parcel of this judgment.
9. Now, Ext.P-1 certificate dated 22.6.1981, Ext.P-2 dated 29.9.1972 which are affirmed by certificate No.G2-3584/2017 dated 19.1.2017 issued by the District Collector, Thiruvananthapuram, report No.C1-647/2017/GHT dated 21.1.2017 issued by the Superintendent, General Hospital, Thiruvananthapuram, are clear pieces of primary evidence, which would fully prove the fact that the petitioner had participated in the "Petta Firing Incident" on 13.7.1947 as part of the Anti Independent Travancore Movement and that he had suffered gut shot injury due to such participation, which resulted amputation of his right lower limb leg and that he is permanently incapacitated due to that.
The petitioner is an unmarried person and he is staying alone with none to look after his needs, except a niece, who occasionally comes to take care of his immediate needs and he is in his late eighties. True, that grant of "Thamarapathra" award to a freedom fighter does not by itself entitle the claim for Central Freedom Fighters Pension, but it has to be borne in mind that he has fully proved his case. He was also awarded "Thamarapathra" on 15.8.1972 on the 25th anniversary on our country's ::29::
W.P.(C).No.29825 Of 2012 independence due to the scheme in that regard announced by the Central Government and the "Thamarapathra" was awarded to him by none other than Sri.V.K.Krishna Menon, the former Defence Minister of the country (during the period 1957-1962), who was the then Member of Parliament representing Lok Sabha constituency at Thiruvananthapuram during 1971-1974. The State Government had awarded him State Freedom Fighters Pension as per Ext.P-2 with effect from 1.4.1971 and his application for Central Pension was duly forwarded by the State Government to the Central Government as early as on 13.9.1974 as evident from Exts.P-4, P-4(a)(1) and P-4(a)(2). It appears that the papers must have been then misplaced by the Central Government and so the petitioner had again submitted written applications/representations through proforma application as can be seen from Exts.P-5, P-8, P-9, P-10, etc. The State Government was obliged to send also the necessary certificates and reports to the Central Government regarding the fact that the petitioner had participated in the "Petta Firing Incident" on 13.7.1947 and that he is permanently incapacitated due to amputation of his leg and that he had to suffer on account of the gun shot injury as those factual aspects were very much available with the files of the State Government authorities concerned.
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W.P.(C).No.29825 Of 2012 It appears that since action has to be taken from different levels, from the District Collector, Superintendent of General Hospital, Thiruvananthapuram, State Government Secretary, and possibly due to the delay in the coordinated action, the State Government may not have done it at the right time. But a mere perusal of Exts.P-1 & P-2 as well as the provisions contained in the Central Rules, would make it clear that the petitioner is fully eligible and entitled for the Central Pension and State Government has a bounden duty to have forwarded all these requisite details in favour of the petitioner to the Central Government on 13.9.1974 itself when they had forwarded the application to the Central Government as per Exts.P-4, P-4(1)(a), etc. Now, it is not the time or occasion to conduct a postmortem or a blame game and suffice it to say that truth of the matter is that the petitioner, who is now in his late eighties should be given due benefits atleast at this very late juncture by the Central Government authorities. A permanently incapacitated unmarried person like the petitioner, who has no one to look after him cannot be expected to run after various authorities in the Central Government and State Government instrumentalities to secure these certificates and reports and in the facts of this case, this Court has no hesitation to hold as a constitutional court that the Central ::31::
W.P.(C).No.29825 Of 2012 Government and State Government authorities were under a legal duty to properly examine the case of the petitioner and if that had been done, he would have been awarded the Central Pension at least within 3-4 months after 13.9.1974, the date on which his first application for Central Pension was forwarded by the State Government to the Central Government. Time has slowly and inextricably flown that long 43 years have elapsed after the submission of the first application by the petitioner to the Central Government in September, 1974. Three or four generations of people have crossed various stages of their lives during this period, but the petitioner, who was fully prepared to give his life, body and spirit to the Anti Independent Travancore Movement, is still left in the lurches and solitude counting for his last moment in his earthly existence. It is due to sweat and blood of many people like the petitioner that all of us are now privileged to enjoy the breath of freedom and independence in this country. Should the system still ponder over and delay the process when the petitioner is suffering from serious old age ailments in his late eighties? This cannot be countenanced or imagined by any one who has any concern for rule of law and for the glorious history of our national freedom struggle which has given us our freedom. Therefore, it is the solemn and bounden ::32::
W.P.(C).No.29825 Of 2012 duty of the competent authority of the Central Government to ensure that not even a moment is lost any further and justice should be done immediately to the petitioner by awarding him the Central Freedom Fighters Pension forthwith or atleast within a very short time. If the petitioner is made to suffer any further delay, it will amount to grave injustice and illegality. This Court is hopeful that the competent authority of the Central Government would certainly rise up to the occasion and act with all expedition and speed so that atleast at this last juncture the Central Government will award him central pension so as to justly render what is due to the petitioner.
10. In the judgment in Mukund Lal Bhandari v. Union of India, reported in (1993) supp. 3 SCC 2 = AIR 1993 SC 2127, the Apex Court had occasion to consider the claim under the Central Freedom Fighters Pension, 1972 and it was held in para 10 of the above said ruling by the Apex Court that the Freedom Fighters Pension under the Central Scheme should be made payable only from the date on which the application is made and whether the application is accompanied by the necessary proof of eligibility or not and the pension should be sanctioned only after the required proof is produced. It appears that the Central Scheme does not contain a provision that pension sanction ::33::
W.P.(C).No.29825 Of 2012 under those rules will be payable only from the date of issue of sanction order. In the case State of Madhya Pradesh & anr. v. Devkinandan Maheshwari reported in (2003) 3 SCC 183, the Apex Court dealt with a case which arose under the provisions of Madhya Pradesh Swatantra Sangram Sainik Samman Nidhi Niyam, 1972, and in the said State Scheme, a rule had been incorporated which provided that the pension claims under the provisions of the said State Scheme can be granted only from the date of sanction of the pension and not from the date of application. While distinguishing the aforesaid decision of the Apex Court in Mukund Lal Bhandari's case (supra), the Apex Court in Devkinandan Maheshwari 's case (supra) had held that since the State rule specifically provides that the pension requires to be sanctioned only from the date of the order and not from the date of application, a freedom fighter is entitled to pensionary benefits under the Pension Rules only from the date of sanction order and not from the date of application and that a freedom fighter under that State scheme is entitled to pension only from the date or order and not from the date of application.
The aforesaid ruling of the Devkinandan Maheshwari 's case (supra) reported in (2003) 3 SCC 183, has been relied on by the Division Bench of this Court in Pauly v. State of Kerala reported in 2008 (1) KLT 933, in a case ::34::
W.P.(C).No.29825 Of 2012 dealt with State freedom fighters pension scheme wherein Rule 18 of the said State Rules provides that pension sanction under those rules could be payable only from the date of sanction order. Further it has also been held by the Apex Court in Government of India v.
K.V.Swaminathan, reported in (1997) 10 SCC 190, that where a claim is raised on the basis of benefit of doubt, pension should be granted not from the date of application but from the date of sanction order.
Relying on the said decision in K.V.Swaminathan's case (supra), the Apex Court held in the case Union of India & anr. v. Kaushalya Devi reported in (2007) 9 SCC 525 that the arrears of freedom Fighters' Pension should be granted from the date of sanction order which accepted the secondary evidence and need not be from the date of application However, it is clear from the aforesaid judgment of the Apex Court in Mukund Lal Bhandari v. Union of India, reported in (1993) supp. 3 SCC 2 = AIR 1993 SC 2127, that where the freedom fighter is entitled for pension on the basis of primary evidence, it should be given from the date on which the application is made and whether the application is accompanied by the necessary proof of eligibility or not, and the pension, of course, should be sanctioned only after the required proof is produced, etc. In the instant case, the application for grant of Central ::35::
W.P.(C).No.29825 Of 2012 Pension under the application of the petitioner was forwarded by the State Government to the Central Government on 13.9.1974 as evident from Exts.P-4, P-4(a)(1) and P-4(a)(2), etc. The State Government was obliged to send all the necessary reports and certificates certifying the aforementioned details. But it was not done. More over, it appears that the Central Government has not acted upon Ext.P-3 application received on 30.9.1974 presumably due to its misplacement, etc. The petitioner has been constantly alerting the State Government and Central Government and ultimately it is only because of this Court's intervention as per Ext.P-7 judgment that atleast some attention was given to the petitioner's case. Now, the aforementioned materials pointed out by this Court are clear pieces of primary evidence, which would fully prove the case of the petitioner for entitlement for pension under Rule 4(g) of the Central Rules. The State Government has also issued verification and entitlement report in favour of the petitioner addressed to the Central Government. The earlier Central Scheme dated 15.9.1972 has been replaced by the subsequent Central Scheme known as Central Swatantrata Sainik Samman (SSS) Pension Scheme, 1980, with effect from 1.8.1980.
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11. In view of the above discussion, the petitioner is legally entitled to get the Central Freedom Fighters Pension along with arrears due from 13.9.1974 (the date of receipt of his first application under the Central Scheme, 1972). If for any reason, the competent authority of the Central Government feel that they have any difficulty in that regard, then it is made clear that arrears of Central Freedom Fighters Pension should be given to the petitioner at least from 1.8.1980 (date of coming into force of subsequent Central Pension Scheme, 1980). In the facts of this case, this Court would request the Central Government authorities to grant pension arrears to the petitioner from 13.9.1974 as stated earlier. If for any reason the Central Government authorities find any difficulty in doing so, then certainly they are obliged to grant pension arrears at least from 1980. The necessary orders and proceedings should be issued by the competent authority of the 1st respondent sanctioning freedom fighters Pension to the petitioner under the Central Scheme without any further delay and the arrears thereon as indicated hereinabove should also be disbursed to the petitioner without any further delay, failing which the petitioner would be entitled for interest @ 10% p.a. on the arrears of pension from the expiry of the time limit stipulated hereinafter. The entire formalities in ::37::
W.P.(C).No.29825 Of 2012 this regard should be completed by the 1st respondent Central Government within an outer time limit of 3 months from the date of receipt of the above said application and the competent authority concerned should not delay the matter any further and may ensure that the necessary action in that regard should be completed with all expedition taking note of the fact that the petitioner is in his late eighties. In view of the said facts and circumstances of this case and as the petitioner has been waiting for the last more than long 43 years, it is ordered that the competent authority of the Central Government should file a compliance report/statement before this Court regarding the compliance of the above said direction within the above referred outer time limit.
12. Accordingly, the following directions and orders are passed:
(i) The order dated 9.1.2017 passed by this Court in this Writ Petition (Civil) is made absolute and will be treated as part and parcel of this judgment.
(ii) The impugned Ext.P-12 rejection order dated 22.11.2012 is quashed.
(iii) It is declared that the "Petta Firing Incident" which happened on 13.7.1947 is part and parcel of the "Anti Independent Travancore Movement" and so the said incident is part and parcel of the freedom movement as recognised by the Central Government in terms of item No. 30 of Anx-18 of the Central Scheme. The petitioner is fully eligible and entitled for the grant of freedom fighters' pension under the Central Scheme.
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(iv) It is held that Exts.P-1, P-2, Ext.R-2(c) letter dated 19.1.2017 issued by the District Collector, Thiruvananthapuram, and Exts.R-2(e) report dated 21.1.2017 issued by the Superintendent of General Hospital, Thiruvananthapuram, etc., would constitute primary evidence in this case to prove that the petitioner is fully eligible and entitled for the Central Scheme in terms of Rule 4(g) of the aforementioned Central Scheme.
(iv) Consequently, it is ordered that on the basis of the above said materials as well as verification-cum-entitlement report forwarded by the State Government, the competent authority of the 1st respondent should forthwith sanction pension to the petitioner under the Central Freedom Fighters Pension Scheme, without any further delay. The arrears thereon are payable from 13.9.1974 or atleast from 1.8.1980 as may be appropriately decided by the Central Government. The proceedings in that regard sanctioning the pension and arrears thereon should be disbursed to the petitioner within an outer time limit of 3 months from the date of receipt of a copy of this judgment. Failing which, the petitioner will be entitled to interest @ 10% p.a on the arrears of pensionary benefits from the expiry of the above said 3 months' time limit up to the date of actual payment.
(v) The competent authority of the 1st respondent Central Government should also file a report/statement before this Court regarding the compliance of these directions and by producing a copy of the proceedings issued by them granting pension and its arrears to the petitioner within the above said outer time limit.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.
ALEXANDER THOMAS, Judge.
bkn/-