WP/9883/2005 of Kesireddy Ramachandra Reddy, Vs Union of India, Rep. by its Under Secretary, on 31 December 2013

ORDER:

This Writ Petition, under Article 226 of the Constitution of India, isfiled seeking the following relief:

“To issue an appropriate writ, order or direction moreparticularly in the nature of Writ of Mandamus declaring the actionof the Respondent in not granting pension to the petitioners fromthe date of receipt of their applications under Swatantra SainikSamman Pension Scheme, as arbitrary, illegal, for extraneousconsideration and in violation of Article 14 of the Constitution of India and to issue a consequential direction to the Respondent togrant pension to the petitioners with effect from the date of receiptof applications forthwith under Swatantra Sainik Samman PensionScheme”.

2. Briefly stated, the case of the petitioners, as per the pleadings inthe affidavit filed in support of the Writ Petition, is as under:

3. Petitioners are the freedom fighters participated in anti-Nizammovement for the merger of Hyderabad State into Indian Union and theywere in various border camps under the leadership of various wellknown freedom fighters. The then Nizam Government issued warrantsof arrest against the petitioners 1 and 2 and to evade the same, theywent underground for more than six months. As per Swatantra SainikSamman Pension Scheme, 1980, petitioners 1 and 2 submittedapplications to the respondent in the year 1992 and the 3[rd] petitionersubmitted his application in the year 1997. The Hyderabad SpecialScreening Committee, constituted under the leadership of SriCh.Rajeshwar Rao, verified and recommended the cases of thepetitioners in the year 1997 for the grant of freedom fighters’ pension. Inspite of the recommendations of the State Government, when there wasinaction on the part of the respondent in considering the applicationsfiled by the petitioners 1 and 2, they filed Writ Petitions earlier before thisCourt and in pursuance of the directions issued in the said WritPetitions, respondent herein granted pension to the petitioners 1 & 2herein with effect from 3.9.2004 and 6.6.2000 respectively. 3[rd] petitionerwas granted with effect from 20.1.2004.

4. Contending that the grant of pension prospectively instead ofretrospectively as illegal, arbitrary and contrary to the law laid down bythe Hon'ble Supreme Court in MUKUNDALAL BHANDARI V. UNIONOF INDIA[[1]],the present Writ Petition is filed.

5. A counter affidavit, resisting the averments in the affidavit filed insupport of Writ Petition, is filed on behalf of the respondent-Union ofIndia, contending principally that the petitioners are entitled for freedomfighters pension only prospectively, but not prospectively. It is furthercontended in the counter that since the pension was given on the basisof benefit of doubt, petitioners are entitled for the same prospectivelyonly. It is further stated that the petitioners have been granted pension inrelaxation of the provisions of the Swatantra Sainik Samman PensionScheme, 1980 by giving benefit of doubt on the basis of secondaryevidence.

6. Heard Sri Rajendra Prasad, learned counsel for petitioners andSmt.K.Mani Deepika, representing the Union of India.

7. It is contended by the learned counsel for petitioners that as perthe decision rendered by the Hon'ble Apex Court in MUKUNDALALBHANDARI V. UNION OF INDIA (1 supra), petitioners are entitled forpension from the date of the applications. It is further contended by thelearned counsel that the action of the respondent in declining to grantpension to the petitioners from the date of their applications is arbitraryand illegal and having dragged the matter years together without therebeing any valid reason, the respondent is not justified in grantingpension prospectively. It is further contended by the learned counselthat in the absence of any deficiency on the part of petitioners, there isabsolutely no justification on the part of the respondent in grantingpension prospectively by branding the grant made in favour ofpetitioners as one under benefit of doubt. It is further contended by thelearned counsel that the Government of Andhra Pradesh after dueverification of the claims of the petitioners recommended their cases forgrant of freedom fighters pension, as such the action of the respondent isillegal and arbitrary.

8. Per contra, it is vehemently contended by the learned AdditionalStanding Counsel for the Union of India that the respondent grantedpension in favour of petitioners herein basing on secondary evidence,as such they are entitled for the pension only prospectively. The learnedcounsel for respondent places reliance on the judgments of the Apex Court in GOVERNMENT OF INDIA v. K.V.SWAMINATHAN[[2]], UNIONOF INDIA V. GANESH CHANDRA DOLAI AND OTHERS[[3]], UNIONOF INDIA V. KAUSHALAYA DEVI[[4]],and also the orders of this Courtin W.P.No.30769/11, 34587/11 and 4213/12 dated 27.4.2012.

9. For the purpose of adjudication of the issue involved in the presentWrit Petition i.e. whether the petitioners herein are entitled for the grantof freedom fighters pension from the date of their applications, it wouldbe appropriate to refer to the relevant provisions set out in the saidscheme of 1980. Clauses 2.1 to 2, 2.2 and 2.3 of the scheme read asunder:

“2.1 Eligible dependents of martyrs: A martyr is a person whodied or who was killed in action or in detention or was awardedcapital punishment due to participation in the freedom struggle ofIndia. Relevant documents from official records and newspapersof the relevant time are considered as evidences in such cases.

2.2 Imprisonment: A person who had suffered minimumimprisonment of six months (3 months in case of women, SC/STfreedom fighters) on account of participation in freedom strugglesubject to furnishing of the following evidences:

(a) Imprisonment/detention certificate from the concerned jailauthority, District Magistrate or the State Government indicatingthe period of sentence awarded, date of admission, date ofrelease, facts of the case and reasons for release.

(b) In case records of the relevant period are not available,the secondary evidences in the form of 2 co-prisonercertificates (CPC) from freedom fighters who have proven jailsuffering of minimum 1 year and who were with the applicant inthe jail could be considered provided the State Government/Union Territory Administration concerned, afterdue verification of the claim and its genuineness, certifies thatdocumentary evidences from the official records in support ofthe claimed sufferings were not available. In case the certifierhappens to be a sitting or Ex.M.P./M.L.A., only one certificate inplace of the two is required.

2.3 Underground:A person who on account of his participation infreedom struggle remained underground for more than six monthsprovided he was;

A. a proclaimed offender; or

B. one on whom an award for arrest was announced;

C. One for whose detention, order was issued but not served.”

10. In MUKUNDALAL BHANDARI V. UNION OF INDIA (1 supra), the Hon'ble Apex Court at paragraphs 4 and 5 held as under:

“4. As regards the sufficiency of the proof, the Scheme itselfmentions the documents which are required to be produced beforethe Government. It is not possible for this Court to scrutinize thedocuments which according to the petitioners, they had producedin support of their claim and pronounce upon their genuineness. Itis the function of the Government to do so. We would, therefore,direct accordingly. As regards the contention that the petitionershad filed their applications after the date prescribed in that behalf,we are afraid that the Government stand is not justifiable. It iscommon knowledge that those who participated in the freedomstruggle either at the national level or in the erstwhile Nizam State,are scattered all over the country and most of them may even beinhabiting the remotest parts of the rural areas. What is more,almost all of them must have now grown pretty old, if they are alive.Where the freedom fighters are not alive and their widows and theunmarried daughters have to prefer claims, the position may still beworse with regard to their knowledge of the prescribed date. Whatis more, if the Scheme has been introduced with the genuine desireto assist and honour those who had given the best part of their lifefor the country, it ill behoves the Government to raise pleas oflimitation against such claims. In fact, the Government, if it ispossible for them to do so, should find out the freedom fighters ortheir dependants and approach them with the pension instead ofrequiring them to make applications for the same. That would bethe true spirit of working out such Schemes. The Scheme hasrightly been renamed in 1985 as the Swatantra Sainik SammanPension Scheme to accord with its object. We, therefore, cannotcountenance the plea of the Government that the claimants would

only be entitled to the benefit of the Scheme if they madeapplications before a particular date notwithstanding that in factthey had suffered the imprisonment and made the sacrifices andwere thus otherwise qualified to receive the benefit. We are,therefore, of the view that whatever the date on which the claimantsmake the applications, the benefit should be made available tothem. The date prescribed in any past or future notice inviting theclaims, should be regarded more as a matter of administrativeconvenience than as a rigid time-limit. Coming now to the lastcontention advanced on behalf of the Government, viz., that thebenefit of the Scheme should be extended only from the date theclaimant produces the required proof of his eligibility to the pension,we are of the view that this contention can be accepted onlypartially. There have been cases, as in the present case, wheresome of the claimants had made their applications but eitherwithout the necessary documentary proof or with insufficient proof.It is unreasonable to expect that the freedom fighters and theirdependents, would be readily in possession of the requireddocuments. In the very nature of things, such documents have tobe secured either from the jail records or from persons who havebeen named in the Scheme to certify the eligibility. Thus theclaimants have to rely upon third parties. The records are also quiteold. They are bound to take their own time to be available. It is,therefore, unrealistic to expect that the claimants would be ina position to produce documents within a fixed time-limit. What isnecessary in matters of such claims is to ascertain the factum ofthe eligibility. The point of time when it is ascertained, isunimportant. The prescription of a rigid time-limit for the proof of theentitlement in the very nature of things is demeaning to the object ofthe Scheme. We are, therefore, of the view that neither the date ofthe application nor the date on which the required proof is furnishedshould make any difference to the entitlement of the benefit underthe Scheme. Hence, once the application is made, even if it isunaccompanied by the requisite eligibility data, the date on which itis made should be accepted as the date of the preferment of theclaim whatever the date on which the proof of eligibility is furnished.

5. That leaves us with the question as to whether, notwithstandingthe date on which the application itself is made, the claimant shouldbe entitled to the benefit of the pension with effect from an earlierdate. In support of the contention that the benefit should be madeavailable with retrospective effect, reliance is placed on the twocases cited earlier where the benefit is given with effect fromAugust 1, 1980. We have given our anxious consideration to thequestion and are of the view that for reasons more than one, thebenefit should flow only from the date of the application and not

from any date earlier. As pointed out before in the two earlier casesthe question with regard to the retrospectivity of the benefit wasneither raised nor answered. We have, therefore, to decide it for thefirst time. There is no doubt that if the object of the Scheme is tobenefit the freedom fighters, theoretically, they should be entitled tothe benefit from the date the Scheme came into operation. But thehistory, the true spirit and the object of the Scheme would itselfprobably not support such strait-jacket formula. As has beenpointed out above, the Scheme was introduced in 1972 on theoccasion of the Silver Jubilee of our National Independence. It isnot suggested that some of the freedom fighters were not in needof financial assistance prior to that date. When the Scheme cameinto force for the first time, it was also restricted to those who werein need of such assistance and hence only such freedom fighterswere given its benefit, whose annual income did not exceed Rs5000. It is only later, i.e., from August 1, 1980, that the benefit wasextended to all irrespective of their income. The object in makingthe said relaxation was not to reward or compensate the sacrificesmade in the freedom struggle. The object was to honour and whereit was necessary, also to mitigate the sufferings of those who hadgiven their all for the country in the hour of its need. In fact, many ofthose who do not have sufficient income to maintain themselvesrefuse to take benefit of it, since they consider it as an affront to thesense of patriotism with which they plunged in the FreedomStruggle. The spirit of the Scheme being both to assist and honourthe needy and acknowledge the valuable sacrifices made, it wouldbe contrary to its spirit to convert it into some kind of a programmeof compensation. Yet that may be the result if the benefit is directedto be given retrospectively whatever the date the application ismade. The Scheme should retain its high objective with which itwas motivated. It should not further be forgotten that now its benefitis made available irrespective of the income limit. Secondly, andthis is equally important to note, since we are by this decisionmaking the benefit of the scheme available irrespective of the dateon which the application is made, it would not be advisable toextend the benefit retrospectively. Lastly, the pension under thepresent Scheme is not the only benefit made available to thefreedom fighters or their dependants. The preference inemployment, allotment of accommodation and in admission toschools and colleges to their kith and kin etc. are also the otherbenefits which have been made available to them for quitesometime now. Hence we are of the view that the pension underthe Scheme should be made payable only from the date on whichthe application is made whether the application is accompanied bythe necessary proof of eligibility or not. The pension should, of course, be sanctioned only after the required proof is produced.”

11. In GOVERNMENT OF INDIA v. K.V.SWAMINATHAN (2 supra),the Hon'ble Supreme Court at paragraph 3 held as follows:

“In view of the above-settled legal position, though therespondent was not entitled to the pension as a freedom fighter, hewas given the relief on the basis of benefit of doubt. Therefore, he isentitled to the pension only from the date of the order and not fromthe date of the application. We are informed that pursuant to theorder of the High Court, the amount has been released. Under thiscircumstance, the appellant is directed to deduct the paid amountproportionately from the amount payable in every month, instead ofasking him to refund the amount.”

12. In UNION OF INDIA V. GANESH CHANDRA DOLAI (3 supra),the Hon'ble Supreme Court at paragraphs 4 and 5 held as follows:

“4. We have heard the learned counsel for the parties. We are ofthe view that the ratio in Duli Chand case [(1992) 2 SCC 28] is notapplicable to the facts of the present case. In Duli Chand case thisCourt had by the order dated 16-7-1990 [1990 Supp SCC 762]directed the Government of India to pay pension to the petitionerstherein w.e.f. 1-8-1980. It was specifically mentioned in the orderthat all the 41 petitioners had produced the relevant documentssupporting their claim and keeping in view the facts of these casespension was directed to be given w.e.f. 1980. In this case theGovernment of India has categorically stated that the respondentswere given benefit of doubt and as such the pension can only bygiven from the date of the order.

5. Keeping in view the documents produced by the respondentsbefore the Government, the respondents have been rightly givenpension by the Government of India from the date of the order. Weallow this appeal, set aside the impugned order of the High Courtand restore the order of the Government of India whereunderpension has been given to the respondents from the date of theorder of the Government of India. No costs.”

13. I n UNION OF INDIA V. KAUSHALAYA DEVI (4 supra), theHon'ble Supreme Court at paragraph 5 held as follows:

“In the present case, we have perused the record and foundthat it is stated therein that the claim was allowed on the basis ofsecondary nature of evidence. In other words, the claim was notallowed on the basis of jail certificate produced by the claimant buton the basis of oral statement of some other detenu. Hence, we areof the opinion that the pension should be granted from the date ofthe order and not from the date of the application.”

14. In W.P.No.30769/11, 34587/11 and 4213/12 dated 27.4.2012, thisCourt upheld the prospective payment of pension in case of secondaryevidence.

15. In the instant case, the petitioners 1 and 2 made applications inthe year 1992, whereas the 3[rd] petitioner submitted his application forthe grant of pension in the year 1997. As per the petitioners, theirapplications were processed and their claims were recommended by thescreening committee as long back as in the year 1997. In the case ofpetitioners 1 and 2, warrants of arrest were issued and their claim isbased on the primary evidence, as such the consideration of their casesby giving benefit of doubt is contrary to the very scheme by the CentralGovernment. Petitioners 1 and 2 cannot be categorized as personsentitled under the benefit of doubt. It is the categoric case of thepetitioners herein that arrest warrants were issued against them andthey remained underground for more than six months. In the casesrelied upon by the learned counsel for respondent the concernedpersons produced only secondary evidence, but not the primaryevidence. In KAMLABAI SINKAR v. STATE OF MAHARASHTRA[[5]], GURDIAL SINGH v. UNION OF INDIA[[6]]and BOMMAKANTI

GURDIAL SINGH v. UNION OF INDIA[[6]]and BOMMAKANTI

VENKAVVA v. UNION OF INDIA[[7]], the Hon'ble Apex Court and thisCourt categorically held that the standard of proof applicable in theparticipation of freedom movement is on the basis of preponderance ofprobabilities, but not on the touchstone of test of probability beyond reasonable doubt. In W.P.No.1193 of 2004, this court by virtue of anorder dated 2.7.2010 categorically held that unless the veracity of thedocuments is doubted, there can be no rationale whatsoever in givingpurported benefit of doubt to the petitioner and denying her pension forthe period anterior to the date on which the pension is sanctioned. Thefreedom fighters who sacrificed their lives, wealth, health and valuableyoung age for the liberation of the country, are entitled for the pension asa matter of right and it is not a grace nor a charity for them and on theother hand it is a recognition for their sacrifices.

16. For the aforesaid reasons and after giving thoughtful considerationto the issue involved in the present Writ Petition, this Court is of theconsidered opinion that in respect of petitioners 1 and 2 there isabsolutely no justification on the part of the respondent in grantingpension prospectively only. Therefore, the Writ Petition is allowed,directing the respondent herein to grant pension to the petitioners 1 and2 from the date of receipt of their applications. The said exercise shallbe completed within a period of three months from the date of receipt ofthis order. However, 3[rd] petitioner is not entitled to said benefit as hisclaim is based on secondary evidence, as such the Writ Petition isdismissed to the extent of 3[rd] petitioner. As a sequel, the miscellaneouspetitions, if any, shall stand closed. There shall be no order as to costs.

Date: 31.12.2013DA

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A.V.SESHA SAI, J

31.12.2013

[1]1993 Supp (3) SCC 1 : AIR 1993 SC 21271993 Supp (3) SCC 1 : AIR 1993 SC 2127

[2](1997) 10 SCC 190(1997) 10 SCC 190

[3](1997) 10 SCC 289(1997) 10 SCC 289

[4](2007) 9 SCC 525(2007) 9 SCC 525

[5](2012) 11 SCC 754(2012) 11 SCC 754

[6](2001) 8 SCC 8(2001) 8 SCC 8

[7]2013(5) ALD 1732013(5) ALD 173