Kishan Hanuji Jambhulkar (Dr.) vs State Of Maharashtra And Ors.
2003 Latest Caselaw 523 Bom

JUDGMENT

V.C. Daga, J.

1. The petitioner, a freedom fighter recognised by the State of Maharashtra, is claiming pension under the Swatantra Sainik Samman Pension Scheme ("Scheme" for short) which was introduced by the Government of India with the object of providing grant of pension to the living freedom fighters, their families and to the families of martyrs.

FACTUAL MATRIX:

2. The factual matrix emerging from the documents filed with the petition are that the petitioner had preferred a claim for grant of Swatantra Sainik Samman Pension ("pension" for short), vide his letter-cum-application dated 24th July, 1981. In support of his claim he had produced two certificates from prominent freedom fighters as required by the scheme, certifying therein that the petitioner was underground during Goa Liberation Movement of 1955.

3. The application preferred by the petitioner came to be rejected by respondent No. 2, Union of India vide letter dated 8th August, 1986 issued under the signature of the Under Secretary to the Government of India, Ministry of Home Affairs, Freedom Fighters Division, New Delhi only on the sole ground that the documentary evidence does not prove claim of suffering.

4. The petitioner after getting the aforesaid letter of the rejection made two representations dated 15th April, 2000 and 14th December 2000 (Annexure 'I' and 'J') along with recommendation letters of the Member of Parliament. The representations were made when he came across a news item in the local news paper "Nav Bharat" dated 28th July 1989 incorporated at Annexure K which spelt out that the Home Minister had made statement in Rajya Sabha that even without application the pension had been granted to some of the freedom fighters, such as former Presidents of India Shri Zailsingh and Shri N. Sanjiva Reddy, former Prime Minister Shri Morarji Desai, the then Chief Minister of Hariyana Shri Devilal, Smt. Maniben Patel, daughter of late Sardar Vallabhabhai Patel, Shri Ramkrishna Bajaj, an industrialist and similar such other prominent persons of the country referred to in the said news item. The petitioner claimed similar treatment which was extended by the Government of India to the aforesaid prominent personalities in the matter of grant of pension. However, the representations made by the petitioner did not bear any fruits.

5. Being aggrieved by the inaction on the part of the Government of India and the order of rejection dated 8th August 1986, the petitioner preferred this writ petition under Article 226 of the Constitution of India.

6. On being noticed, respondent No. 1 the State of Maharashtra appeared through the learned A.G.P., and filed its return/counter affidavit duly affirmed by the Collector, Nagpur admitting therein that the Government of Maharashtra has awarded freedom fighters pension to the petitioner vide Government Resolution dated 19th May, 1987 and submitted that the pension claim of the petitioner having been rejected by the Union of India it is for the Union of India, the respondent No. 2 to justify its stand.

7. The respondent No. 2, Union of India to justify their action filed counter affidavit, stating therein that the application of the petitioner for grant of pension was considered and rejected for non-submission of documentary evidence in support of his claim. It was further contended that verification report as well as entitlement for pension report having not been received from the State Government which was mandatory, the claim of the petitioner was not considered favourably. In reply to the allegations made by the petitioner that some of the prominent political leaders, industrialist and social workers were granted pension benefits under the said scheme, the respondent No. 2 categorically admitted to have granted such pension to them suo motu without there being any application or proof of sufferings but contended that the same criteria cannot be applied in petitioner's case because all those persons are/were prominent personalities. The admission given in the counter affidavit filed by the Union of India reads as under:

"7. It is the contention of the petitioner that some persons have been granted Central Government Swatantra Sainik Samman Pension Scheme even without making application to the Central Government and hence, he should be awarded pension as of right i.e. without following the due procedure. Amongst them were S/Shri P.V. Narsingh Rao, then Union Minister, Shri S.B. Chavan, S/Shri Vasant Sathe, Bindeshwari Dube, Smt. Rajendrakumari Vajpayee, former President Zailsing, former President N. Sanjeeva Reddi, former Prime Minister Morarji Desai, Shri Devi Lal, daughter of Sardar Patel, Smt. Maniben Patel, Ramkrishna Bajaj, wife of Former President Fakruddin Ali Ahmad, Smt. Abida Ahmad, former Chief Minister Narayandutt Tiwari, former Chief Minister of Karnataka Shri Ramkrishna Hegade, former Deputy President of India Shri B.D. Jatti, Misses of Saikh Abdullah, Smt. Vijya Laxmi Pandit etc. all these persons are/were eminent personalities.

8. They need not prove themselves. However, though it may be stated that the petitioner is equally for grant of Swatantrata Sainik Samman Pension still without any proof in support thereof, his claim cannot be allowed. It is needles to say that, if the petitioner does not fulfil the criteria for pension under Central Government Scheme, then merely because the State Government has granted pension to him that automatically would not entitle him to get pension under the Central Government Scheme also as a freedom fighter. It is also taken into consideration that the recommendation of the State Government is not binding on the Central Government as it is sent only for consideration and not for granting pension. Whether the person was freedom fighter or not, is always to be decided by the competent authority of the Government. The answering respondent cannot understand the adamancy of the petitioner for applying under Swatantrata Sainik Samman Pension Scheme without following the due procedure prescribed thereunder."

8. In rejoinder, the petitioner contended that it was not open for respondent No. 2 to apply different yardstick, while considering the pension case of the petitioner, than that applied to the cases of some prominent leaders and personalities of the country. In his submission freedom fighters of the country falling in the scheme form one class. No further classification amongst them is permissible so as to justify applicability of different criteria muchless that of the 'eminence'. In his submission in order, however, to pass the test of permissible classification two conditions must be satisfied, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the classification must have a rational relation to the object in question sought to be achieved. In his submission, the classification of the freedom fighters on the basis of their 'eminence' does not answer the test of Article 14 of the Constitution of India. He further submits that Article 14 guarantees to all persons the right of equality before the law and equal protection of laws. Article 14 not only guarantees equal protection to the similarly situated but they are entitled to the same procedural rights for reliefs, and for defence with like protection and without discrimination.

9. The petitioner, a freedom fighter appeared in person and ably canvassed his case in consonance with the case pleaded in the petition and rejoinder; whereas respondent No. 2 represented by its learned Counsel vehemently opposed this petition on the grounds raised in the counter affidavit. The learned A.G.P. appearing for the State of Maharashtra was neutral in the legal fight between the freedom fighter and the Union of India, the respondent No. 2.

10. The petitioner, initially, relied upon the Division Bench judgment of this Court in Writ Petition No. 701 of 1990, Waman Gomaji Umathe v. The State of Maharashtra & others, wherein this Court relying upon the news item which had appeared in "Nav Bharat" dated 28th July, 1989, and the statement made by the Union Home Minister in the Rajya Sabha as reflected therein was pleased to allow the said petition by setting aside the order of the Union of India rejecting pension of the petitioner therein and the respondents were directed to pay the pension to the petitioner to which he was held entitled as freedom fighter. The petitioner in the present petition contended that his case is similar to that of Waman Gomaji Umathe (supra). He further contended that the aforesaid order of the Division Bench in the case of Waman Gomaji Umathe (supra) was accepted by the Union of India considering the absence of further challenge to the order in question. He, therefore, submitted that following the said verdict his petition should be allowed. The petitioner also relied upon Apex Court judgment in the case of Mukund Lal Bhandari v. Union of India, and Gurdial Singh v. Union of India, , in support of his submissions.

CONSIDERATION:

11. Having heard the rival contentions, it is clear that on two occasions the Apex Court considered the question of grant of pension to the freedom fighters under the Freedom Fighters Pension Scheme which was initially introduced in the year 1972. In the case of Gurdial Singh (supra) the Apex Court had occasion to observe as under:

"The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country."

The Apex Court in Mukund Lal Bhandari's case (supra) observed:

"The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the freedom struggle. The spirit of the scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now."

12. In the case of Gurdial Singh (supra), the Apex Court expressed revulsion of the hypertechnical approach adopted by the Union of India while dealing with the case of freedom fighter in the following words:

"We have noticed with disgust that the respondent authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the scheme. The impugned order also appears to have been passed with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari's case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in C.W.P. No. 3790 of 1994 entitled Mohan Singh v. Union of India, decided on 1-6-1995 and Mohan Singh v. Union of India, C.W.P. 14442 of 1995 decided on 11-12-1995."

The Apex Court in the above case specifically ruled that the standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. It further observed that looking to the object of the scheme, the approach should be to honour and mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach should be taken while determining the case of the person seeking pension under the scheme. The Apex Court further observed that it should not be forgotten that the persons intended to be covered by the scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The cases of the claimants under this scheme are required to be determined on the basis of the probabilities and not on the touch-stone of the test of 'beyond reasonable doubt'. Once on the basis of evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.

13. This Court had also an occasion to rely upon the statement of the Home Minister made in the Rajya Sabha as reflected in the news item dated 28th July, 1989 referred to hereinabove and to uphold the claim of the freedom fighter Shri Waman Gomaji Umathe, who was similarly circumstanced as that of the present petitioner.

14. Turning to the facts of the case at hand, the petitioner had produced two certificates of the freedom fighters as required by the scheme on the basis of which application form was framed by respondent No. 2 (see Annexure-G) (at pages 26-34). The petitioner did produce documentary evidence as required by the scheme. The petitioner is recipient of the pension from the State of Maharashtra. This relevant proved fact ought to have been taken into account by respondent No. 2 as one of the strong pieces of evidence, which unequivocally goes to prove that the petitioner is a recognised freedom fighter recognised by the State of Maharashtra which is sufficient to prove that the petitioner had participated and suffered in Goa Liberation Movement of 1955, as such the respondent No. 2 should not have ignored the claim of the petitioner for want of verification report and/or entitlement for pension report. In this view of the matter, petitioner ought not have been denied the benefit of the said scheme. No other deficiency in the impugned order against the petitioner was pointed out by respondent No. 2. Even otherwise, once the order is made by the authority the same cannot be supplemented by the affidavit or other additional material so as to support or validate the action taken. The order bad in beginning cannot be validated by the time it comes to the Court as held by the Apex Court in Mohinder Singh v. Chief Election Commissioner, .

15. One more thing is clear from the statement made by the Home Minister in Rajya Sabha as reflected in the news item dated 28th July, 1989 referred to hereinabove that the eminent personalities of the country referred to in paras 4 and 7 (supra) were granted benefit of the said pension scheme. They were exempted from moving any application and/or producing any proof in support of their sufferings. The circumstances on which different treatment was being given to the other persons has not been explained by respondent No. 2. Other eminent persons were granted pension not because they were eminent but because they were freedom fighters. In our opinion, the petitioner was entitled to have the same treatment being a person falling in the category of freedom fighter. The benefit of the pension scheme could not have been denied to him merely because in the opinion of the Government of India he was not a eminent person, especially, in absence of any criteria laid down by the Government of India in this behalf. No such exception has been made out by the pension scheme in favour of eminent persons.

16. In the circumstances, the writ petition is allowed. The impugned order of respondent No. 2, Union of India is set aside. Respondent No. 2 is directed to pay pension to the petitioner to which he is entitled to as freedom fighter as per the scheme but with effect from the date of filing of the petition i.e. 13th September, 2001. The arrears shall be calculated and paid to the petitioner positively within a period of six weeks from today, failing which, the petitioner will be entitled to interest at the rate of 10% per annum from 13th September, 2001 till the date the arrears are actually paid. Accordingly, Rule is made absolute in terms of this order. The petitioner is also held entitled to payment of cost quantified at Rs. 5,000/-.