The petitioner challenges Ext.P10 and seeks for a direction to the second respondent to consider Ext.P11 on merits and to take expeditious steps to issue the Non Availability of Records Certificate (NARC) to the first respondent. The petitioner also seeks a direction to the respondents to ensure that the Swathanthra Sainik Samman Pension (for short, 'S.S.S. Pension) sanctioned to the petitioner is not terminated. 2. In fact, the claim of the petitioner for pension is covered by the judgment of a Division Bench of this Court in W.A. No. 1946/2010 by which this Court allowed the writ appeal filed by the 1st respondent based on the judgment in W.A. No. 382/2010 and connected cases. By a judgment of this Court in W.P.(C) No. 10843/2010, learned Single Judge of this Court directed the respondent authorities to provide the S.S.S. Pension to the petitioner along with arrears form the date of application ie; 05.01.1999. The first respondent preferred an appeal before the Division Bench as W.A. No. 1946/2010, and writ appeal was allowed setting aside the judgment of learned Single Judge. During the pendency of the said appeal, the first respondent had to pay the arrears of pension, since contempt proceedings were taken against the first respondent. An amount of around Rs.13 Lakhs was paid to the petitioner.
3. After disposal of the writ appeal on the basis of directions issued, State Government had reconsidered the matter and had called upon the petitioner to produce certain details in terms of Ext.P8 letter. The petitioner had sent Ext.P9 letter indicating that as far as she is concerned, she approached the Chief Judicial Magistrate's Court, Alappuzha for getting details of the case in which her late husband was involved in respect of the freedom struggle. No records were available and the said certificate was produced before the Government.
4. By Ext.P11 order dated 17.01.2014, the first respondent rejected the claim of the petitioner for pension based on the fact that the State Government did not recommend the pension to be granted in favour of the petitioner.
5. The Petitioner contends that Ext.P10 order is bad in law, in so far as, material particulars were not considered by the first respondent. That apart it is contended that the State Government ought to have recommended the petitioner to be eligible for pension as the available records were produced before the State Government. Further, no steps were taken by the second respondent to conduct proper enquiry in the matter.
6. According to the petitioner, though primary evidence is not available, secondary evidence is to be produced in terms with the scheme, and it is for the State Government to issue necessary NARC to the Central Government to enable the petitioner to receive the pension.
7. The issue involved in this matter is covered by the judgment of a Division Bench of this Court in Union of India v. Lennyamma [2012(3)KLT 852]. In the said judgment, this Court had laid down the parameters under which S.S.S. Pension could be granted and the nature of enquiry that is to be conducted by the State Government. It is also held that only after the Central Government issues an order, there is an obligation to pay pension. Under these circumstances, once the State Government does not recommend the eligibility of the petitioner for pension, it may not be possible for the Central Government to grant the pension as claimed by the petitioner.
In the said circumstances, I do not find any infirmity or illegality with reference to the order at Ext.P10, and to that extent, the petition has to be rejected.
8. Another contention of the petitioner is with reference to Ext.P13, by which petitioner is called upon to refund the entire amount which was paid as pension by virtue of directions issued as per judgment in W.P.(C) No. 10843/2010. In so far as the said judgment had been set aside, and ultimately it is found in Ext.P10 that the petitioner is not eligible for pension, apparently the Central Government is entitled to recover the amount which was paid on the basis of the judgment of the learned Single Judge. If any payment is made on the basis of a judgment and ultimately when the judgment is set aside, definitely the party, who was suffered the judgment was entitled to get back the amount paid in terms of the said judgment. In the said circumstance, I do not think that the action initiated on the part of the first respondent in issuing Ext.P13 suffers from any illegality.
8. As far as the rejection of claim of the petitioner by the State Government is concerned, learned counsel for the petitioner submits that a proper enquiry has not been conducted in the matter. The second respondent has also not produced before this Court any material to show that they have conducted an enquiry in terms with the scheme for issuing NARC. No statement or counter affidavit is also filed in the matter. Having regard to the fact that the petitioner has been contesting this matter for quite a long time and having regard to the fact that a detailed enquiry is required to be made by the State Government either to issue or not to issue NARC, I am of the view that the matter has to be considered afresh by the second respondent and if the petitioner is entitled for any relief, the State Government shall pass appropriate orders and make necessary recommendations in that regard. In the said circumstances, while denying the main relief prayed by the petitioner, this writ petition is disposed of as under:
The second respondent shall reconsider the claim of the petitioner for issuance of NARC and appropriate orders shall be passed after hearing the petitioner within a period of two months from the date of receipt of a copy of this judgment.
sd // TRUE COPY // P.A. TO JUDGE Sd/- A.M.SHAFFIQUE, JUDGE