Supreme Court of India
UNION OF INDIA versus KRISHNA MODI & ANR. on 3 February 2022
638
[2022] 1 S.C.R. 638
SUPREME COURT REPORTS
[2022] 1 S.C.R.
A
UNION OF INDIA
v.
KRISHNA MODI & ANR.
(Civil Appeal No. 909 of 2022)
BFEBRUARY 03, 2022
[VINEET SARAN AND ANIRUDDHA BOSE, JJ.]
Freedom Fighters – Pension – Scheme – Eligibility –Swatantrata Sainik Samman Pension Scheme, 1980 – Claim forpension under – Validity – Held: Claim of respondent no. 1 was, forCthe first time, made on 27.12.1982, whereas the Freedom FightersPension Scheme existed in year 1972, which was only amended inthe year 1980 – Hence, it cannot be said that the respondent filedhis claim promptly – Under the said scheme, a person eligible forthe benefit should have remained underground for more than sixDmonths – It is not understood as to how respondent no. 1 could becategorised as a person who remained underground for a periodof six months or more, merely on the basis of certificates issued bycertain freedom fighters, who were themselves in jail during theperiod when they certified that respondent no.1 had remainedunderground – Even assuming that the certificate issued by theEschool authorities is authentic, simply because respondent no.1 didnot attend the school during a particular period, when he was merelyabout 12 years of age, would not amount to respondent no.1 havingremained underground because of his participation in the freedomstruggle – Further, there was no recommendation of the StateFGovernment but the application of respondent no.1 was merelyforwarded by the State Government – Mere fact that the StateGovernment granted pension under some freedom fighters pensionscheme of the State Government would not, by itself, entitlerespondent no.1 to claim under the scheme of the CentralGovernment, unless respondent no.1 fulfilled the conditions of theGCentral Government Scheme, which in the present case is SSSPension Scheme, 1980 – On facts, the High Court overlooked thevarious requirements under the SSS Pension Scheme, 1980, whichwere to be fulfilled by respondent no.1 for grant of benefits of theScheme, and allowed grant of pension to respondent no.1 merelyHon basis of sympathy, and because the State Government had granted benefit under a separate scheme of the State Government, and oncertain presumption of respondent no.1 having remainedunderground for a certain period without there being properauthentication as required under the Scheme in question – Judgmentof High Court set aside.
Union of India v. Avtar Singh, (2006) 6 SCC 493 : [2006]3 Suppl. SCR 666 – referred to.
Case Law Reference
[2006] 3 Suppl. SCR 666referred toPara 14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 909 of2022.
From the Judgment and Order dated 17.02.2020 of the High Courtof Madhya Pradesh at Jabalpur Bench in W.A. No.1971 of 2019.
Jayant K. Sud, ASG, Merusagar Samantray, Ms. Preeti Rani, OmPrakash Shukla, Raghav Sharma, Ms. Garima Prasad, A. K. Sharma,B. V. Balaram Das, Advs. for the Appellant.
Rajeev Kumar Bansal, Ganesh Barowalia, Girish Patel, Advs. forthe Respondents.
The following Order of the Court was passed :
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ORDER
1. Leave granted.
2. The present matter relates to grant of pension under theSwatantrata Sainik Samman Pension Scheme, 1980 (for short ‘SSSPension Scheme’) introduced by the Central Government on 15.08.1981.
3. The brief facts of this case are that in response to the SSSPension Scheme,1980, the respondent no. 1 submitted an applicationbefore the Central Government on 27.12.1982 claiming freedom fighter’spension on the ground that he suffered eight months confinement in thefreedom movement in the year 1942, in the form of being undergroundfor such period. It is the case of the respondent no. 1 that from theperiod of 21.11.1942 to 20.08.1943 (during which he did not attend theschool), he remained underground and hence, would be entitled for pensionunder the said SSS Pension Scheme. Since the application of therespondent no. 1 was not considered, he filed a writ petition before the A
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AMadhya Pradesh High Court, which was disposed of by giving a directionto the appellant/Union of India herein to decide the claim of the respondentno. 1. The matter travelled to the High Court on several occasions andultimately, on 03.02.2009, the application of the respondent was rejectedby the appellant.B4. Aggrieved by the said order, the respondent no. 1 filed a writpetition before the Single Judge of the Madhya Pradesh High Court,which was allowed on 14.02.2019 and after setting aside the order dated03.02.2009 passed by the appellant, the appellant was directed to grantpension to the respondent no. 1 along with 6% interest per annum.Challenging the said order the appellant filed an intra court appeal beforeCthe Division Bench of the High Court, which was dismissed on17.02.2020. Aggrieved by the same, this appeal by way of special leavepetition has been filed.
5. The submission of Mr. Jayant K. Sud, learned Additional SolicitorGeneral appearing for the appellant, is that the respondent no. 1 wasDborn on 05.07.1930 and was only about 12 years of age when he claimsto be underground during the freedom movement of 1942. It is contendedthat there is no specific proof of the respondent no. 1 having remainedunderground during the period which is being claimed by him, except forthe fact that the School certificate obtained after about 40 years indicatesEthat the respondent no. 1 had attended school from 13.7.1942 to 20.11.1942and from 21.08.1943 to 13.09.1947. Learned ASG has submitted thatmerely because the respondent no. 1 did not attend the school during theintervening period would not, by itself, mean that respondent no. 1remained underground because of his participation in the freedommovement. He has, however, also disputed the issuance of schoolFcertificate issued by the school authorities. On merits, it has been submittedthat the freedom fighters pension scheme was there in the year 1972and the SSS Pension Scheme,1980 was nothing but amendment of thesaid scheme to the extent of raising eligibility to all the freedom fightersas token of ‘Samman’ to them, by deleting the provision in the earlierGscheme with regard to ceiling on annual income for being eligible forgetting such pension. It is, thus, contended that the application filed bythe respondent no.1 was with a delay of twenty years.
6. It is further contended that for being eligible, what was requiredwas that a person should have remained underground for more than sixHmonths, provided he was a proclaimed offender; or one on whom an award for arrest/head was announced; or one for whom detention orderwas issued but not served, which, according to the learned ASG, was notso in the case of the respondent no.1. He also submitted that in theabsence of the respondent no. 1 having furnished the Non-availability ofRecord Certificate (NARC), the case of the respondent no. 1 could nothave been considered merely on the basis of certificate issued by thefreedom fighters who had undergone imprisonment for five years ormore. Learned counsel has submitted that the freedom fighters, whohad allegedly issued the certificate, were themselves in custody duringthe period in question when the respondent no. 1 claims to have remainedunderground, and since the persons issuing the certificate werethemselves in jail, they could not have certified that the respondent no. 1was underground during such period.
7. The further contention is that the applicant/respondent no.1was required to provide the exact period of underground suffering which,according to the learned counsel, has not been provided by the respondentno. 1. It is submitted by learned ASG that in the absence of anyrecommendation by the State Government, which was mandatorilyrequired, the application of the respondent no. 1 was rightly rejected, asthe State Government had merely forwarded the application of therespondent no. 1 without any recommendation.
8. Per contra, Mr. Rajeev Kumar Bansal, learned counselappearing for the respondent no. 1 contended, that the learned SingleJudge as well as the Division Bench of the High Court have given acategorical finding of fact that the requirement as per the SSS PensionScheme, 1980 is fulfilled by the respondent no. 1 and, thus, the claim ofrespondent no. 1 has rightly been allowed under the said scheme.
9. It has been stated that under a similar scheme of the StateGovernment (though the same is not on record) the respondent no. 1 hasbeen receiving the freedom fighter’s pension and, thus, there is no reasonwhy the same benefits be not accorded to him under the CentralGovernment SSS Pension Scheme. He, thus, contended that thejudgments of the High Court do not call for any interference and thisappeal deserves to be dismissed.
10. We have heard learned counsel for the parties at length andhave perused the record.
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A11. There is no denial of the fact that the claim of the respondentno. 1 was, for the first time, made on 27.12.1982, whereas the FreedomFighters Pension Scheme existed in year 1972, which was only amendedin the year 1980. Hence, it cannot be said that the respondent filed hisclaim promptly. Under the said scheme, a person eligible for the benefitshould have remained underground for more than six months, providedBhe was a proclaimed offender; or one on whom an award for arrest/head was announced; or one for whom detention order was issued butnot served. In the present case, there is no order by which the respondentno. 1 was declared as a proclaimed offender. Further it was not theclaim of the respondent no. 1 that an award for arrest of the respondentCno. 1 was ever announced, nor is it the case that any detention orderwas issued but not served on the respondent no.1. Hence, it is notunderstood as to how the respondent no. 1 could be categorised as aperson who remained underground for a period of six months or more,merely on the basis of certificates issued by certain freedom fighters,who were themselves in jail during the period when they certified thatDthe respondent no. 1 had remained underground.
12. Even assuming that the certificate issued by the schoolauthorities is authentic, simply because the respondent no. 1 did not attendthe school during a particular period, when he was merely about 12Eyears of age, would not amount to respondent no. 1 having remainedunderground because of his participation in the freedom struggle. Further,if the law or the pension scheme in question requires an application to beaccompanied by NARC, then in absence of the same, the application ofthe respondent no.1, if not considered, cannot be faulted.
F13. Further, the scheme requires the State Government to notmerely forward the application but recommend such application for grantof pension. In the present case, it is not disputed that there was norecommendation of the State Government but the application of therespondent no. 1 was merely forwarded by the State Government. Themere fact that the State Government has granted pension under someGfreedom fighters pension scheme of the State Government would not,by itself, entitle the respondent no. 1 to claim under the scheme of theCentral Government, unless the respondent no. 1 fulfills the conditionsof the Central Government Scheme, which in the present case is SSSPension Scheme, 1980.H
14. We are conscious of the fact that those persons who hadparticipated in the freedom struggle of our country, because of whichwe got independence, should certainly be honoured and if they are entitledto any benefits, which includes pension, they should definitely be providedsuch benefit. However, such benefits should be awarded only to thosepersons who are entitled for the same under any Scheme of theGovernment. This Court in the case of “Union of India Versus AvtarSingh” (2006) 6 SCC 493, has in paragraph no. 8 of the said judgmentheld as under:
“8. …………The genuine freedom fighters deserve to be treatedwith reverence, respect and honour. But at the same time it cannotbe lost sight of that people who had no role to play in the freedomstruggle should not be permitted to benefit from the liberal approachrequired to be adopted in the case of the freedom fighters, mostof whom in the normal course are septuagenarians andoctogenarians.”
15. In view of the aforesaid facts, where the Single Judge, as wellas the Division Bench of the High Court, have overlooked the variousrequirements under the SSS Pension Scheme, 1980, which were to befulfilled by the respondent no. 1 for grant of benefits of the Scheme, andhave allowed the grant of pension to respondent no. 1 merely on thebasis of sympathy, and because the State Government has granted abenefit under a separate scheme of the State Government, and on certainpresumption of the respondent no. 1 having remained underground for acertain period without there being proper authentication as required underthe Scheme in question, we are of the opinion that the said judgmentsdeserve to be quashed.
16. Accordingly, this appeal is allowed and the judgments of theHigh Court dated 14.02.2019 and 17.02.2020 are set aside.
17. No order as to costs.
18. Before parting with the case, we record our appreciation forthe assistance provided by Mr. Rajeev Kumar Bansal, who has appearedas the counsel appointed by the Supreme Court Legal ServicesCommittee for the respondent no. 1.
Bibhuti Bhushan Bose
Appeal allowed.
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