HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.5825, 10695, 10803, 20166, 28620, 30017, 31601, 33767, 33768, 33772, 34066, 34247, 34248, 34275, 34343, 34420, 34607, 34610, 34773 and 34775 of 2011 Date: 23.07.2014 W.P.No.5825 of 2011 Between:
Smt. Segyama Agamma w/o. Segyama Rajaiah, Aged 85 years, Occu: FF pensioner,r/o.Elegaid Village, Elagaid Mandal, Karimnagar District.
.. Petitioner and The Government of India, rep.by its Dy.Secretary, Ministry of Home Affairs, Freedom Fighter’s Division (HC), Lok Nayak Bhavan, Khan Market, New Delhi and others.
.. Respondents This Court made the following :
HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.5825, 10695, 10803, 20166, 28620, 30017, 31601, 33767, 33768, 33772, 34066, 34247, 34248, 34275, 34343, 34420, 34607, 34610, 34773 and 34775 of 2011 COMMON ORDER:
In all these cases, petitioners have participated in freedom moment against the Nizam Government for its merger into Union of India during the year 1947-48. Having recognized that several persons have fought for freedom, Government of India formulated a scheme called “Swatantrata Sainik Samman Pension Scheme - 1980” to provide financial assistance to the freedom fighters in the form of a pension. All the petitioners have applied for grant of freedom fighters pension. The pension applications of the petitioners were processed in terms of the scheme and they were granted pension on various dates in the year 2010. In all these writ petitions, petitioners challenge the clause incorporated in the order of grant of pension, which restrict the sanction of pension from the dates mentioned in the said orders prospectively in the year 2010. All the petitioner’s claim for grant of pension under the scheme from the dates of submission of their applications for grant of pension.
2. Heard learned counsels for the petitioners as well as learned standing counsels for respondents.
3. For the purpose of convenience, the facts in W.P.No.34275 of 2011 and the counter affidavit filed therein are recorded.
4. Petitioner applied for pension in the year 1997 claiming that he was one of the freedom fighters fought against the Nizam Government. By order 28.6.2010 pension was granted to the petitioner w.e.f., 26.04.2010.
5. Learned counsel for the petitioners submit that the scheme formulated in the year 1980 is applicable to all those freedom fighters, who have participated in the struggle in the Hyderabad Liberation Movement. Therefore, all the persons, who are entitled to the pension under the Scheme are one class and there cannot be any sub- classification in the freedom fighters category. Some of the freedom fighters were group leaders and identifiable personalities. Therefore, their names were incorporated in Police records, Court records etc. Some of them were arrested and imprisoned and, therefore, the concerned records disclose their participation in the freedom struggle. Many others like petitioners have worked in underground camps. How record of these underground camps were maintained is not known to petitioners. As petitioners were unaware of the possible success in the freedom struggle and consequential formation of Scheme for grant of pension, petitioners were never bothered to get their names incorporated in the records. It was a voluntary involvement of the petitioners, genuinely concerned for securing liberation from the Nizam and that was a single minded motto. Therefore, none of the petitioners have documentary proof in support of their claim that they have participated in the freedom struggle. However, group leaders, under whom they worked recognized that petitioners have worked and have accordingly given certificates. The claims of the petitioners were verified at various levels and State Government on thoroughly examining the records, have recommended favourably for grant of pension. Thus, having found that the petitioners are freedom fighters and entitled to receive pension, restricting the benefit to perspective date is illegal and amounts arbitrary exercise of power.
6. It is further contended that pension scheme prescribes criteria to determine the status of the person as freedom fighter, granting eligibility on martyrs dependents, persons who were imprisoned, persons who were underground etc. Insofar as martyr is concerned, records are available. So, therefore, there was no difficulty for the dependents to claim pension. Similarly, insofar as the persons who were imprisoned, there was no difficulty since the jail records or the Magistrate records or the State Government records would indicate their imprisonment. The difficulty was with reference to the persons who had gone underground and fought for freedom struggle. All the petitioners herein fall into this category. Para 2.3 of the scheme deals with this category. According to sub para (b), in case non availability of relevant records for the period, secondary evidence in the form of a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit could be considered subject to State Government, after due verification gives genuineness certificates. Such certificates were issued insofar as the petitioners are concerned. Learned counsel contend that in view of issuance of certificates of participation in freedom struggle, the petitioners answered the description of the freedom fighters and, therefore, they are also entitled to all the benefits that flowed out of the scheme. Thus, on the ground that they did not have primary evidence, but have only secondary evidence and, therefore, they are granted restricted pension from the date of sanction, is illegal.
7. Mrs. S.Nanda standing counsel for Central Government contended that it is the beneficial scheme formulated by the Government of India to help those freedom fighters who have participated in Hyderabad Liberation Movement, in addition to several such movements all over the country. Persons who have proved their direct participation were granted pension and petitioners are such of those persons, who do not have any direct evidence of their participation. They only claim to have participated in the freedom movement, but no record is available with them nor the official records support their stand. All such cases initially were not granted pension, but having understood their genuine grievance, the pension was liberalized and the scheme of the pension was also extended to all such persons who have secondary evidence in support of their claim that they have worked for the liberation movement. Parameters are prescribed as to what constitute the secondary evidence. In all such cases, where the pension is sanctioned based on the secondary evidence, the applicability of pension is restricted to the date, on which order is passed sanctioning the pension or approved whichever is earlier. It is further contended that the issue is no more resintegra.
Supreme Court considered similar issue in the case of Union of India
[1]
and others vs. Ganesh Chandra Dolai and others , Government
[2]
of India vs. K.V.Swaminathan and Union of India and another
[3]
vs. Kaushalaya Devi .
8. Learned standing counsel further contended that identical issue has come up for consideration before this Court in batch of writ petitions. Learned single Judge of this Court rendered judgment in W.P.No.30769 of 2012 and batch. This Court held that the restricting the pension from the date of order of sanction is valid and petitioners are not entitled to claim pension from the retrospective date. Writ Appeal No.1437 of 2012 filed against the said judgment was dismissed by judgment dated 20.11.2012 affirming the decision of the single Judge following the earlier judgment in Writ Appeal No.315 of 2012. In W.A.No.315 of 2012, this similar issue was considered and following the judgment in Kaushalaya Devi, this Court dismissed the claim of the petitioners for retrospective extension of the pension and upheld the decision of the Central Government to grant pension only from the date of decision/order and not from the date of submission of the application.
9. Admittedly, in all these cases, petitioners do not have primary evidence in support of their claim that they have participated in Hyderabad Liberation Movement. All of them have participated in the freedom movement underground and all of them have fallen back on the certificates issued by the prominent freedom fighters in the form of Personal Knowledge Certificates. These certificates were scrutinized by the State Government and State Government recommended for grant of pension. Considering the recommendation of the State Government, pension was granted in the year 2010. The evidence produced by the petitioners in support of their claim was treated as secondary evidence. Granting pension under 1980 Scheme based on the secondary evidence is treated as benefit of doubt. In case of granting pension by applying the principle of benefit of doubt, pension is granted prospectively from the date of order or the date of decision. It is useful to extract relevant paras of the order impugned in writ petition No.34275 of 2011:
“ Shri Bobbala Thirupathi Reddy had applied for pension on the basis of his underground sufferings in border camp during Hyderabad Liberation Movement. No evidence prescribed under the Swatantrata Sainik Samman Pension Scheme in support of claimed underground sufferings has been produced by the applicant.
The State Government has recommended the claim on the basis of certificates given by other Central freedom fighter pensioners.
The claim has been considered based on the relaxed eligibility and evidentiary requirements in relaxation of the normal eligibility and evidentiary requirements of the Scheme on the basis of certificates given by other central freedom fighter pensions, recommendations of the State Government and that of Screening Committee of Eminent Freedom Fighters. ”
10. It is, thus, clear that the petitioner in W.P.No.34275 of 2011 was granted pension on the basis of certificate given by the other central freedom fighter pensioners. No evidence was produced by the petitioner in support of the claim of underground sufferings. It is stated that the claim of the petitioner was considered on the relaxed eligibility evidentiary requirements in relaxation of the normal eligibility and evidentiary requirements of the scheme and pension was granted. Same is the case with all other petitioners.
11. In K.V.Swaminathan, by giving benefit of doubt, respondent was granted pension on 18.11.1989. Respondent claimed that he is entitled for pension from the date of application. The High Court granted relief to pay pension from the date of application. Following the earlier decision in Union of India v. M.R. Chelliah Thevar (CA No.7762 of 1996) decided on 30.04.1996, Supreme Court held as under:
“ In view of the above-settled legal position, thought he respondent was not entitled to the pension as a freedom fighter, he was given the relief on the basis of benefit of doubt. Therefore, he is entitled to the pension only from the date of the order and not from the date of the application. We are informed that pursuant to the order of the High Court, the amount has been released. Under this circumstance, the appellant is directed to deduct the paid amount proportionately from the amount payable in every month, instead of asking him to refund the amount. ”
12. The above decision was followed in Kaushalaya Devi case. It was also a case where the petitioner based claim for pension on the secondary nature of evidence. Supreme Court held that petitioner is entitled to claim pension from the date of the order and not from the date of application. Similar view is expressed in Ganesh Chandra Dolai. Following the decision of the Supreme Court in Kaushalaya Devi, batch of writ petitions were dismissed by this Court in the judgment dated 7.4.2012. Following the decision of Kaushalaya Devi, similar claim was dismissed in W.A.No.315 of 2012. In W.A.No.315 of 2012, the Division Bench of this Court held that a person who is granted pension based on the secondary evidence is entitled to draw pension only from the date of decision and not from the date of application. The same is reiterated in W.A.No.1437 of 2012 affirming the decision of the learned single judge.
13. Elaborate submissions were made in support of the claim for retrospective grant of pension from the date of application and that there cannot be any sub-classification or mini classification among the pensioners who have participated in the Hyderabad Liberation Movement, once they have satisfied the description of freedom fighters. In plethora of precedents on the subject, it is held that if a person is identified as a freedom fighter for grant of pension under the 1980 scheme by granting benefit of doubt based on secondary evidence, such person is entitled to grant of pension only from the date of decision or order and not from the date of submission of application. All the petitioners were granted pension by giving them benefit of doubt based on secondary evidence. Hence, the claim of the petitioners for grant of pension from retrospective date i.e., date on which the application for pension was made, is not valid and hence, these writ petitions are liable to be dismissed.
14. Accordingly, these writ petitions are dismissed. There shall be no order as to costs. Miscellaneous petitions if any pending in these writ petitions shall stand closed.
JUSTICE P.NAVEEN RAO Date: 23.07.2014 Kkm HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.5825, 10695, 10803, 20166, 28620, 30017, 31601, 33767, 33768, 33772, 34066, 34247, 34248, 34275, 34343, 34420, 34607, 34610, 34773 and 34775 of 2011 Date: 23.07.2014 kkm
[1] (1997) 10 Supreme Court Cases 289
[2] (1997) 10 Supreme Court Cases 190
[3] (2007) 9 Supreme Court Cases 525