C. Natarajan v. The Government Tamil Nadu

1. Since the issue in all these writ petitions is one and the same, the same are being disposed of by the following common order.

2. The petitioners are all hailing from Kanyakumari District. Aggrieved by the order of the first respondent, namely, the Government of Tamil Nadu represented by its Secretary, Tamil Development and Culture Department, rejecting their claim for payment of pension under Tamil Nadu Payment of Pension to Tamil Scholars and Miscellaneous Provisions Act, 1983, hereafter referred to as "the Act", the first six petitioners have prayed for quashing of the rejection order and consequently they pray for appropriate direction lo the respondents to sanction and pay the pension to them as per the provisions of the Act and the Rules made thereunder, from the date of their application. The remaining five petitioners have approached this Court lor issuance of writ of Mandamus directing the respondents to pay pension under the Act and the Rules.

3. For the sake of convenience, I shall refer the facts of the ease in W, P. No. 20799 of 1993. It is staled by the petitioner that during his younger age, he was inspired in the Merger Movement of Kanyakumari District with the State of Tamil Nadu and he actively participated in the agitation launched by the then Tiruvancore Congress under the leadership of Shri Nesamani. For participating in the agitation at Pudukadai, the petitioner was arrested and imprisoned in Kuzhithurai lock up for 37 days from 11-8-1954. It is stated that due to the said agitation, the Kanyakumari District and Chengoltah Taluk of Tirunelveli District merged with the State of Tamil Nadu from 1 -10-1956 under the State Reorganisation Act, 1956. In the said agitation sixteen persons were killed at Pudukadai due to Police firing. The Government of Tamil Nadu enacted an Act called the Payment of Pension to Tamil Scholars and Miscellaneous Provisions Act, 1983 for the payment of pension to Tamil Scholars or who had fought for merger of Tamil areas with the State of Tamil Nadu.

4. The first respondent also framed rules under the Act in G.O. Ms. No. 21. Tamil Development and Culture Department, dated 20-6-1984 for sanction of pension. In Rule 3, it is stated that the application for pension should be submitted to the first respondent and the copy of such application should be sent to the third respondent. The first respondent after receipt of the application, forwarded the same to the District Collector to conduct an enquiry and after getting the report and other documentary evidence under Rule 5 of the Act, pension shall be sanctioned after referring the matter to the High Level Committee, constituted under Sub-rule (2). The High Level Committee shall examine the eligibility of the applicant and forward the application to the Government for the sanction of pension. Thus it is manifest that the person who suffered for the development of Tamil Nadu language or the merger of Tamil areas arc statutorily entitled to get pension from the first respondent if they are having sufficient materials to prove that they suffered for the cause of Tamil language,

5. It is further stated that after the introduction of the Act, the petitioner had submitted an application for the sanction of pension before the first respondent on 17-8-1984 along with certificate to prove that he has participated in the merger movement and suffered imprisonment. The petitioner produced certificate dated 14-8-1984 from the Ex. M. P. P. Thanulinga Nadar and M.L.A., Mr. M. A. Noor Mohammed, as both of them were the co-prisoners of the petitioner. The Kanyakumari District Freedom Fighters Association by certificate dated 27-11-1975. certified that the petitioner suffered due to the merger movement. The petitioner could not produce official documentary evidence to prove his arrest and sufferings as all the documents were burnt by the then Trivancore Government before the merger. Since, there was no reply from any of the respondents, the petitioner concerned have approached this Court in W.P. No. 13877 of 1993. This Court by an order dated 27-7-1993. considering the long delay on the part of the respondents, directed the respondents to pass orders on the application of the petitioner within three months from the date of receipt of the order. Ultimately after placing the matter before the High Level Committee Meeting, the first respondent rejected the petitioner's name on the ground of non-production of jail certificate. Even though the jail records were destroyed by the then Trivancore Government and the same are not available from the authorities, the Government has erroneously rejected their claim. Moreover, the same is not required under the Rules for the sanction of pension. Thus, the order of the first respondent rejecting the claim of the petitioner, solely on the ground of non-production of jail certificate, is erroneous, arbitrary and violative of Article 14 and also against the provisions of the Act and Rules. In such circumstances, having no other remedy, he filed the said writ petition for quashing the same as well as for direction for payment of pension under the Article

6. Even though the first respondent has filed a separate counter-affidavit in all the cases, here again, for the sake of convenience, I shall refer the counter-affidavit in W.P. No. 20799 of 1993. It is stated that the State has a moral responsibility to improve the condition of those who rendered valuable services for the cause of Tamil and in particular the condition of those who suffered imprisonment and the members of the family of those who sacrificed their life for the cause of Tamil. In tune with the above objections, the Government of Tamil Nadu has formulated suitable rules under the Act. As per Rule 5, the Government have constituted High Level Committee from time to time. The Government have sanctioned financial assistance on the basis of the recommendations of the High Level Committee. It is further stated that as per the Kanyakumari District Collector's report in letter No. 4/64/84, dated 3-6-1985 received in the Tamil Development and Culture Department on 17-7-1985, the petitioner has not produced the jail certificate issued by the appropriate authority to support his claim. The Collector has also recommended his case not based on any jail certificate issued by the appropriate authority. It is evident from the Kanyakumari District Collector's report that the petitioner has not fulfilled the basic requirements as prescribed in the Act and the Rules to support his claim. There is no merit in the writ petition. Accordingly, prayed for dismissal of the same.

7. In the light of the above pleadings. I have heard Thiru N. Paul Vasantha Kumar, learned counsel for the petitioners and Thiru S. Gopinathan, learned Government Advocate for the respondents in all the writ petitions.

8. The points for consideration are : whether the first respondent Government of Tamil Nadu is justified in rejecting the claim of the petitioners for payment of pension under the Act and Rules; and whether any direction has to be issued to the respondents for considering the claim of the petitioners.

9. As stated earlier, all the petitioners are hailing from Kanyakumari District. Now, I shall consider the relevant provisions from the Act and the Rules made thereunder. The Stale Government has passed the Tamil Nadu Act 23 of 1983, namely, Tamil Nadu Payment of Pension to Tamil Scholars and Miscellaneous Provisions Act, 1983. The objects of the Act, as seen from the preamble is as follows :

"An Act to provide for the sanction of pension or grant of scholarship to those who have exhibited courage or nobility in their zeal to preserve the growth of Tamil language or Tamil culture or exhibited conspicuous talents in Tamil language and to provide for the sanction of pension or grant to the families of persons who have evinced remarkable enthusiasm for Tamil language or Tamil culture, and while striving to uphold their enthusiasm for Tamil language or for the preservation of Tamil culture, lost their life."

Section 2 is a definition Section. The said Section reads thus :

2(c) "grantee" means a person to whom pension, grant or scholarship has been sanctioned under this Act;

2(d) "martyr" means a person, who has evinced remarkable enthusiasm for Tamil language and Tamil culture and while striving to uphold his enthusiasm for Tamil language or in his zeal to preserve the growth of Tamil language or to preserve the Tamil culture, has lost his life.

3. Sanction of pension, grant or scholarship.-- (1) The Government may sanction a pension of one hundred and fifty rupees per mensem, or a grant not exceeding ten thousand rupees or both-

(a) to every person who has exhibited conspicuous courage and nobility in his enthusiasm for the Tamil language or in his zeal to preserve the growth of Tamil language or to preserve the Tamil culture;

4. Application for pension, etc.-

(1) Any person who is eligible for sanction of pension, grant or scholarship under this Act may make an application to the Government in such form and in such manner, as may be prescribed.

(2) The application under Sub-section (1) shall be accompanied by a certificate from such officer, in such form, and in such manner, as may be prescribed.

(3) On receipt of an application under Sub-section (1), the Government may cause such enquiries as they may deem necessary, to be made regarding the eligibility or otherwise of the applicant and may sanction the pension, grant or scholarship, as the case may be, in accordance with the provisions of this Act and the rules made thereunder.

(4) The Government, while sanctioning pension (other than the pension referred to in Sub-section (5)), the grant or scholarship under this Act, shall take into consideration the following factors, namely.

(i) the remarkable skill or conspicuous talent in Tamil language exhibited by the applicant, or the martyr, as the case may be;

(ii) the outstanding merit of the applicant or the martyr, as the case may be, in contributing to the growth of Tamil language and the preservation of Tamil culture;

(iii) the courage and nobility exhibited by the applicant in his zeal to preserve the growth of Tamil language or to preserve the Tamil culture;

(iv) the remarkable enthusiasm for Tamil language and his zeal to preserve Tamil culture, evinced by the martyr;

(v) the nature of the suffering either by way of imprisonment or otherwise undergone by the applicant or the martyr, as the case may be;"

Section 9 enables the Government to make rules for the purpose of carrying into effect the provisions of the Act.

10. In pursuance of the powers conferred under Section 9, the Government of Tamil Nadu framed rules, namely, the Tamil Nadu Payment of Pension to Tamil Scholars and Miscellaneous Provisions Rules, 1984 in G.O. Ms. No. 21, Tamil Development Culture, dated 20th June, 1984. Some important definitions and Rules are extracted as under:

"Rule 2(b) "Enquiry Officer" means the Revenue Divisional Officer or any other Officer of the Revenue Department not below the rank of a Revenue Inspector as may be authorised by the Collector;

Rule 3. Application for pension, etc.--Every application for sanction of pension, grant or scholarship shall be submitted to the Secretary to the Government of Tamil Nadu, Tamil Development Culture Department, Madras-600 009, in Form I, together with the attested copies of documents evidencing the factors supporting the claim. A copy of such application shall also be sent to the Collector of the District concerned.

Rule 4. Enquiry.-- (1) The Government may forward the application received under Section 4 to the Collector of the District concerned for conducting necessary enquiry; (2) On receipt of such application together with the attested copies of documents, the Collector of the District shall cause necessary enquiry through the Enquiry Officer regarding the eligibility for the sanction of pension, grant or scholarship. The Enquiry Officer shall personally interview the applicant and such other persons, as he considers necessary and verify the original documents produced by the applicant to satisfy himself whether the conditions of eligibility are satisfied; (3) The period of Imprisonment, if any, may be verified with reference to Jail records; (4) The Inspector-General of Prisons shall issue suitable instructions to all the Superintendents of the Jails to comply with the requests of the Collector or the Enquiry Officer, as the case may be to peruse the jail records and to furnish extracts from the Convict Registers promptly to the applicant, (5) In case whether the applicant is a minor, the Enquiry Officer shall ascertain the correct age of the applicant by such verification and enquiry as may be necessary. The correct age shall be verified with reference to the certificate of date of birth or any other reliable record produced by the applicant. He shall incorporate in his report the correct age of the minor; (6) When the Enquiry Officer interviews personally the applicant, he shall also verify the Identity marks of the applicant. After the enquiry, the Enquiry Officer shall submit his report in Form II to the Collector; (7) The Collector shall first satisfy himself that the enquiry has been full and complete and then forward the application along with his report in Form III to the Secretary to the Government of Tamil Nadu, Tamil Development Culture Department, Madras-600 009 together with his recommendation regarding the eligibility or otherwise of the applicant for the sanction of pension, grant or scholarship.

Rule 5. Sanction of pension, a grant of scholarship.-- (1) On receipt of the application for sanction of pension, grant of scholarship, as the case may, along with the report of the Collector, the Government shall refer such application to the High Level Committee constituted by the Government under Sub-rule2);

(2) There shall be constituted a High Level Committee consisting of a Chairman and such number of members as the Government may, by order, specify;

(3) The High Level Committee shall examine the eligibility of the applicant for the sanction of pension, grant or scholarship, as the case may be, and forward the application to the Government along with its recommendation. The Government, on being satisfied about the eligibility of the applicant for the sanction of pension, grant or scholarship, as the case may be, in accordance with the provisions of the Act and after taking into account the recommendation of the High Level Committee, shall make an order sanctioning the pension, grant, or scholarship in Form IV or rejecting the application, as the case may be;

(4) The order sanctioning the pension, grant or scholarship, as the case may be, to the grantee, shall be communicated, to the grantee, the Collector, the Director of Treasuries and Accounts, the Accounts Officer, Pension Pay Office, Madras-6000 009 in the case of Madras District and the Treasury Officers of the Districts concerned in the case of other Districts and to the Accountant General. Tamil Nadu for the purpose of audit."

11. Except the Rules stated above, we are not concerned with the other Rules. The application for the sanction of pension shall be in Form I. Form II is the report of the Enquiry Officer. Form II speaks about the report by the Collector and Form IV is the order of sanction of panston/grant/scholar-ship by the Government.

12. I have already stated that the petitioners are hailing from Kanyakumari District involved in the merger movement of Kanyakumari District with the State of Tamil Nadu and participated in the agitation. According to them, they were also imprisoned for certain period. No doubt, the petitioners did not enclose the jail certificate from the appropriate authority in support of their claim. In all the rejection orders, the Government have mentioned the only reason that the petitioners have not produced the Jail certificate issued by the appropriate authority in support of their claim. I have already extracted the object of the enactment. In order to provide the monetary relief by way of pension or grant or scholarship to those who have exhibited courage or nobility in their zeal to preserve the growth of Tamil language or Tamil culture or exhibited conspicuous talents in Tamil language and also evinced remarkable enthusiasm for Tamil language or Tamil culture, and while striving to uphold their enthusiasm for Tamil language or for the preservation of Tamil culture, lost their life, the Government have brought forward the said legislation, namely, Tamil Nadu Act 23 of 1983.

13. By pointing out the relevant provisions. Thiru N. Paul Vasanthakumar, learned counsel for the petitioners would contend that though the petitioners could not produce the Jail certificate regarding their imprisonment, they have produced certificate from co-prisoners in support of their claim for imprisonment. He also submitted that since the incident had happened 40 years ago. it is difficult for them to get a certificate from the jail authorities due to efflux of time. By pointing out Section 4(4)(v) of the Act, he would contend that the sufferings may be proved by placing the Jail records for imprisonment or by production of certificates from the co-prisoners. In this regard, it is useful to refer the same clause once again, which reads thus :

"4(4)(v): the nature of the suffering either by way of imprisonment or otherwise undergone by the applicant or the martyr;"

It is clear that in order to establish the sufferings for the development of Tamil language or Tamil culture, the claimants have to necessarily produce proof by way of imprisonment certificate or as per the latter part of Sub-clause (v) of Sub-section (4) of Section 4 of the Act, if they able to establish that they undergone imprisonment or sufferings for the cause of Tamil language or culture, they are entitled to apply for pension from the State Government. The Government themselves have agreed and accepted that the said Act has envisaged the payment of pension not only to Tamil scholars but also those who had fought for the merger of Tamil areas with the State of Tamil Nadu (vide paragraph 4 of the counter-affidavit of the first respondent in W.P. No. 14718 of 1993). It is also not disputed that in respect of the same cause, the Government have sanctioned pension for more than hundred persons on the basis of the co-prisoners certificate.

14. The rules framed by the Government clearly show that every application for sanction of pension or grant or scholarship has to be submitted to the Secretary to the Government of Tamil Nadu, Tamil Development Culture Department in Form I together with the attested copies of documents evidencing the factors supporting the claim. The applicant has to sent a copy of such application to the Collector of the District concerned. Elaborate procedure has been formulated in Rule 4 of the Rules. It is clear from Rule 4 that on receipt of the application from the person concerned, under Section 4, the Government is to forward the application to the Collector of the District concerned for conducting necessary enquiry. The Collector of the District is authorised to get a report from the Enquiry Officer regarding the eligibility for sanction of pension, grant or scholarship. As per Rule 2(b), it is open to the Revenue Divisional Officer or any other Officer of the Revenue Department not below the rank of a Revenue Inspector to conduct an enquiry, personally interview the applicant, verily the original documents produced, period of imprisonment etc., and sent a report to the Collector. It is also clear that whenever any imprisonment certificate is produced, the Superintendents of the Jails are directed to permit to the Enquiry Officer or the applicant concerned to peruse the jail records and also furnish extract from the Convict Register without any delay and free of cost. After completion of the enquiry, the Enquiry Officer has to submit report in Form II to the Collector. Thereafter, the Collector has to satisfy himself that the enquiry has been full and complete and then forward the application along with his report in Form III to the Secretary to the Government of Tamil Nadu. Tamil Development Culture Department, Madras-600 009, together with his recommendation regarding the eligibility or otherwise of the applicant for the sanction of pension, grant or scholarship. On receipt of such report from the Collector, as per Rule 5, the Government has to refer such application to the High Level Committee, constituted by them under Sub-rule2). Sub-rule (3) of Rule 5 enables the High Level Committee to examine the eligibility of the applicant and forward the application to the Government along with its recommendation.

Thereafter, the Government on being satisfied about the eligibility for sanction of pension, grant or scholarship in Form IV or reject the application. Further, the order sanctioning the pension or as the case" may be shall communicate to the grantee, the Collector, the Director of Treasuries and Accounts, the Accounts Officer, Pension Fay Office etc.

15. A reading of the entire scheme of the Act as well as the relevant Rules, clearly show that it contains elaborate procedure to be followed by the applicant. Enquiry Officer, District Collector, High Level Committee and the Government. As rightly contended by the learned counsel for the petitioners, it is not open to the Government to reject the claim of the petitioners merely on the ground of non-production of jail certificate from the appropriate authority. I have already extracted the detailed procedure contemplated under the Act and Rules. As observed by their Lordships of the Supreme Court in R. Narayanan v. Union of India, . no one can really expect office records to have been preserved for a period of 30 or 40 years.

16. Having framed a legislation in order to help the persons who fought for the Tamil language and Tamil culture and having accepted the persons who had fought for the merger of Tamil areas with the State of Tamil Nadu are entitled for pension under the Act, it is not open for the respondents to deny the claim of the petitioners purely on technical grounds as observed by J. Kanakaraj, J. in Gabriel, D. v. The Government of India, 1991 Writ LR 49. the schemes are introduced by the Government not for the purpose of adding feathers to their cap. As rightly observed in a matter like this, the razor edge interpretation is certainly not called for. In all these cases, the Government refused to grant pension only on the ground of non-production of imprisonment certificate. I have already stated that this Court as; well as the Apex Court have repeatedly pointed out that the records which are more than 30 or 40 years have already been destroyed following the rules prescribed with reference to maintenance of records. That being the position, it is not possible for the petitioners and it is also not fair on the part of the respondents to insist for the production of jail certificate. As rightly pointed out by the learned counsel for the petitioners that the Rules framed under the Art do not prescribe any condition or the certificate which arc required to substantiate the claim of the petitioners. While construing the very same provisions of the Act and Rules as well as the non-production "of jail records and enclosing certificates from Members of Parliament or other Public men, E. Padmanabhan. J. in a decision reported in K. Arumughan Nadar v. The Government of Tamil Nadu, 1997 Writ LR 639, has observed :

"It is rightly also pointed out that the Rules do not prescribe production of a particular certificate or particular mode of proof of imprisonment or taking part in the movement in question. The materials which have been placed by the writ petitioner which will be more than sufficient to substantiate the claim that he had taken part in the movement and the respondents ought to have, in my view, sanctioned the pension."

In the light of the object, scheme of the Act and Rules, I am in agreement with the view expressed by the learned Judge.

17. The learned counsel for the petitioners has also brought to my notice that even though the Government have rejected the claim of the petitioners merely on the ground of non-production of imprisonment certificate, the very same Government have granted pension in respect of several persons in G.O. Ms. No. 72 Tamil Development Culture Department, dated 3-3-1988. without insisting for production of imprisonment certificate. A perusal of the said Government Order shows that out of 381 applications, the Government have sanctioned pension for 141 applicants merely on the basis of certificate issued by former Members of legislative Assembly of Tamil Nadu, pertaining to Kanyakumari District. After perusing the said Government Order, I am in agreement with the contention of the learned counsel tor the petitioners that the Government have sanctioned pension even on the basis of certificates issued by the former Members of legislative Assembly of Stats and Members of Parliament from Kanyakumari District. If that is so, the Government is not justified in rejecting the claim of the petitioners merely on the basis of non-production of imprisonment certificate, when they produce certificate from eo prisoners. Likewise, in some eases, in spite of making application along with the certificates from co-prisoners, it is not clear whv the Government have not passed any orders for several years, which necessitated them to approach this Court for the issuance of Mandamus (Vide W.P. Nos. 14718, 15899, 19645, 19646 of 1993 and 1788 of 1994).

18. As stated earlier. In the first six writ petitions, the Government have rejected the claim of the petitioners only on the ground of non-production of imprisonment certificate from the concerned authority. In the last five writ petitions, in spite of the application of the petitioners for pension along with certificate from co-prisoners and other respectable persons, the Government have not passed any orders other to accept their claim or reject the same till date. In the light of the entire scheme of the Act and Rules, 1 am unable to accept the stand of the Government that only on production of imprisonment certificate from the concerned authority, they may be sanctioned pension, grant or scholarship.

19. In the risk of repetition, I once again come to Clause (v) of Sub-section (4) of Section 4 of the Act. It enables the applicant either to place the documents of imprisonment or prove the sufferings by way of placing acceptable evidence. As observed earlier, in the absence of any details either in the Act or in the Rules the Government cannot expect the applicants to keep the imprisonment certificate for 30 to 40 years anticipating such legislation will be brought by the Government. 1 am satisfied that in the light of elaborate procedure in the Act and Rules, it is open to the applicants to place relevant records or the Collector or the Enquiry Officer can very well enquire the jail records, such as Convict Register and furnish the extract to the applicant as well as to the sanctioning authority. II is also clear from the said Rule, if the Enquiry Officer or the Collector is satisfied, based on various sources and makes a recommendation, the same will have to be considered by the Government. Alter all it is the Government which brought the legislation in help the persons who involved in the growth of Tamil language or Tamil culture. His also the State Government who recommended the persons, who had fought for the merger of the Tamil areas in Kanyakumari District and Chengottah Taluk of Tirunclveli District merged with the State of Tamil Nadu and granted pension to various persons, based not only on the imprisonment certificate but merely on the basis of certificate from the former Members of Legislature and Parliament as evidenced in G.O. Ms. No. 72, Tamil Development Culture Department, dated 3-3-1988. I am satisfied that the respondents have not taken into consideration the relevant fads and materials. Instead of rejecting the request of the petitioners in the first six cases on the ground of non-production of imprisonment certificate, it is incumbent on the part of the respondents to verify the claim of the petitioners with reference to the materials available or produced or placed by them before the respondents. As stated earlier Rule 4(4) enables the Collector or the Enquiry Officer to verily the Jail records and issue extract from the Convict Register to the applicants free of cost. While so, the respondents should themselves can verify with the jail authorities. Even assuming that those records art not available, in the absence of any specific provision in the Act and Rules, as pointed out, the co-prisoner certificate issued by public men of reputation and who have undergone the imprisonment during the said movement should have been given due credit and weight. The only reason given by the first respondent in rejecting the application of the petitioners without going into the merits of their claim, cannot be sustained, J also accept that it cannot be said that there is no material before the respondents to hold that the claim of the petitioners are false or that they had not undergone imprisonment or had not taken part in the movement. It is also brought to my notice that number of persons from the Kanyakumari District for taking part in the "merger movement" have been granted pension and the Government is not justified in rejecting the claim of these petitioners on the ground o!" non-production of imprisonment certificate. I have already stated that the learned counsel for the petitioners has placed the relevant Government Orders sanctioning pension to others merely on the basis of certificates issued by former Members of the Legislature and Parliament.

2O. Under these circumstances: I pass the following orders :

(1) The impugned orders of the first respondent in W.P. Nos. 20799, 21924, 21925, 21926, 21927 and 22587 of 1993 are quashed and the matter is remitted to the first respondent-Government for passing appropriate fresh orders.

(2) The first respondent-Government is directed to consider the claim of the petitioners in W.P. Nos. 14718, 15899, 19645, 19646 of 1993 and 1788 of 1994 and pass appropriate orders on the basis of materials placed by them.

(3) The first respondent is directed to take note of the observations made above while passing fresh orders.

(4) If any additional information/material is required, it is open to the first respondent to get the same from the respective petitioners.

(5) The order shall be passed within a period of three months from the date of receipt of a copy of this order.

21. All the writ petitions are allowed to the extent mentioned above. No costs. Consequently W.M.P. Nos. 32554, 34391 to 34394, 35347, 24594, 30646, 30647 of 1993 and 2897 of 1994 are closed.