Boinpally Madhava Rao vs Union Of India (Uoi) And Anr.
1998 Latest Caselaw 649 Del

JUDGMENT

R.C. Lahoti, J.

1. The petitioner seeks a Writ of Mandamus commanding the respondents to release Samman Pension under Swatantrata Sainik Samman Pension Scheme, 1980 (formerly known as Freedom Fighters' Pension Scheme, 1972) (hereinafter 'the Scheme' for short).

2. The petitioner is a resident of Andhra Pradesh. The Andhra Pradesh State has recommended the case of the petitioner for the release of the pension. However, the recommendation made by the State Government has been turned down by the Central Government after consideration.

3. The learned counsel for the petitioner has made available a copy of the Scheme for our perusal. The relevant parts thereof are extracted and reproduced hereunder :-

"4. WHO IS ELIGIBLE?

For the purpose of grant of Samman pension under the scheme, a freedom fighter is:-

(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for pension if the imprisonment/ detention suffered by them was outside India.

(b) The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1-8-1980.

EXPLANATION

1. The detention under the orders of the competent authority will be considered as imprisonment.

2. The period of normal remission upto one month will be treated as part of the actual imprisonment.

3. In the case of a trial end in conviction, the under trial period will be counted towards actual imprisonment suffered.

4. The broken period of imprisonment will be totalled up for computing the period

5. The person who remained underground for more than six months if he was:

a proclaimed offender; or

on whom an award for arrest/head was announced; or for whose detention order was issued but not served. Person interned in his home or exterme from his district provided the period of interest was six was six months or more

Person whose property was confiscated or attached and sold due to participation in the freedom struggle.

person who became permanently incapacitated during firing or a person who lost his job (Central or State Government) and thus livelihood for participation in national movement.

MARTYR is a person who died or who was killed in action or in was awarded capital punishment while participation in a movement for emancipation of India. It will include an ex-INA person who died fighting the British."

"9. HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED)

The applicant should furnish the documents indicated below whichever is applicable.

(a) IMPRISONMENT/DETENTION ETC.

Certificate from the concerned jail authorities, District Magistrates or the State Government in case of non-availability of such certificates co-prisoner certificates from a sitting M.P. or M.L.A. or from an ex-M.P. or an ex-M.L.A. specifying the jail period (Annexure-I in the application form).

(b) REMAINED UNDERGROUND:

(i) Documentary evidence by way of Court's/Government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention.

(ii) Certificates from veteran freedom fighter; who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability.

(c) INTERNMENT OR EXTERNMENT

(i) Order of internment or externment or any other corroboratory documentary evidence.

(ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. (Annexure II in the application).

Note:-

The Certifier veteran freedom fighters in respect of underground suffering, internment externment and the applicant should belong to the same administrative unit before the reorganisation of States and their area of operation must be the same.

(d) LOSS OF PROPERTY, JOB, ETC.

Orders of confiscation and sale of property, Orders of dismissal or removal from service."

4. Vide Para 4 of the scheme a person who has suffered a minimum imprisonment of six months in the mainland jails before the independence is entitled to the pension. The explanation appended to the para permits a person who remained underground for more than six months also to fall in the said category provided that he satisfies one of the conditions set out in the explanation appended to para 4.

5. It appears from the additional affidavit dated 29th May, 1998 as also from the record made available for our perusal by the learned counsel for Central Government that the petitioner was sentenced to imprisonment for five months under Section 27 and two months under Section 8 of the Maintenance Act. There were three co-accused persons, similarly sentenced. They have also been released the Pension because each of them had furnished documentary proof of having undergone jail sufferings for six months. In the case of the petitioner he does not claim to have remained in jail. His version is that he absconded after the pronouncement of the sentence.

6. The petitioner has not furnished any proof either to the State Government or to the Central Government of his falling into any one of the five categories which he was supposed to do in addition to his having remained underground for more than six months.

7. We have perused the original application filed by the petitioner himself. In the application there are columns for each one of the five alternatives referred to in Explanation to para 4 of the Scheme. Against each one of the columns the petitioner himself has filled - 'Not applicable', meaning thereby the petitioner himself does not claim to have been a proclaimed offender or on whom an award for arrest/head was announced or for whose detention an order was issued but not served and so on.

8. Para 9 of the Scheme itself lays down the mode of proof in which the claim has to be substantiated. The record does not show the petitioner having substantiated proof of his claim in the manner contemplated by the Scheme.

9. The Scheme came up for the consideration of the Supreme Court in Mukundlal Bhandari and Ors. v. Union of India . We quote therefrom a few observations made by their Lordships.

" The petitioners would undisputedly be entitled to the benefit of the Scheme provided, of course, they produced the relevant material in support of their claim."

" As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government."

" The pension should, of course, be sanctioned only after the required proof is produced."

10. In State of H.P. and Anr. v. Smt. Jafli Devi the Supreme Court has held in the context a beneficial scheme for compassionate appointment that the policy laid down by the Government should not be departed from merely on account of sympathetic considerations and hardship.

11. In the case at hand the petitioner has failed to prove his eligibility for entitlement under the Scheme by tendering the proof of the nature and in the manner contemplated by the Scheme. The rejection of the petitioner's claim by Central Government cannot be formed fault with.

12. For the foregoing reasons, no case is made out for giving any relief to the petitioner in exercise of writ jurisdiction of this court. The petition is dismissed though without any orders as to costs.

13. Though the present petition is being dismissed yet on a prayer made by the learned counsel for the petitioner it is clarified that if the Central Government may feel satisfied on production of satisfactory and acceptable evidence as contemplated by the Scheme, as to the entitlement of the petitioner, the dismissal of the present petition would not debar the Central Government from entertaining the petitioner's claim and granting him the Pension.