THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.26716 of 2006 Between:
Shaik Budan Khan PETITIONER AND Union of India rep. by its Deputy Secretary, Ministry of Home Affairs, Loknaya, Bhavan, (Hyderabad FF Cell), New Delhi.
RESPONDENT ORDER:
This writ petition is filed under Article 226 of the Constitution of India, challenging the proceedings No.52/CC/8/2006-FF(HC), dated 20.10.2006 issued by the respondent-Union of India, rejecting the claim of the petitioner for grant of freedom fighters pension under Swatantra Sainik Samman Pension Scheme, 1980.
2. Heard Sri Kowturu Vinaya Kumar, learned counsel for the petitioner, Sri B. Narayana Reddy, learned Assistant Solicitor General for respondent-Union of India, apart from perusing the material available on record.
3. According to the petitioner, he participated in anti Nizam Government Movement for merger of Hyderabad State into Union of India during the years 1947-
48 and he went underground and worked under the Camp In-charge, viz., Sri Vutukuru Satyanarayana at Tiruvuru Camp. The petitioner submitted an application in the year 1982 and his name was recommended by the State Government after thorough verification. The Union of India vide proceedings No.112/2185/97-FF(HC)- E, dated 19.01.2004 rejected the claim of the petitioner on the ground of contradiction in the name of Camp. As per the petitioner, he submitted a representation, stating that the name of the camp was wrongly mentioned as Peddaram instead of Tiruvuru due to typographical mistake. It is further pleaded that thereafter, the State Government forwarded his application on 26.06.2004 to the respondent and as there was no response thereafter, the petitioner filed W.P.No.26313 of 2005 and the same was disposed of by this Court on 9.12.2005, directing the respondent to consider and dispose of the representations dated 31.01.2004 and 4.01.2004 within a period of six weeks. It is further pleaded that inaction on the part of the respondent compelled the petitioner to file C.C.No.1013 of 2006 and subsequently, the respondent passed an order vide proceedings No. 52/CC/8/2006-FF(HC), dated 20.10.2006, once again rejecting the claim of the petitioner on the ground of discrepancy and further saying that the recommendations sent by the screening committee is not acceptable. Assailing the said proceedings dated 20.10.2006 passed by the respondent, rejecting the claim of the petitioner the present writ petition came to be filed.
4. This Court issued Rule Nisi on 22.12.2006 and responding to the same, a counter affidavit is filed on behalf of the respondent-Union of India, denying the averments made in the writ affidavit and in the direction of justifying the impugned action.
5. It is contended by the learned counsel for the petitioner that the impugned action of the respondent in rejecting the claim of the petitioner for grant of freedom fighters pension is highly illegal, arbitrary, discriminatory and violative of the principles of natural justice and is opposed to the very spirit and objective of the Scheme formulated by the Union of India. It is further contended that the reasons assigned by the respondent in the order of rejection cannot stand for judicial scrutiny. It is further contended by the learned counsel that the discrepancy pointed out by the respondent was satisfactorily answered by the petitioner and the State Government also forwarded his application, as such, the reason assigned by the respondent is not justified. It is further submitted that the names of the identically situated persons were recommended by the same committee for grant of pension, and they were granted pension, as such rejection of pension in favour of the petitioner is violative of Article 14 and highly arbitrary and discriminatory. In support of his submissions and contentions, the learned counsel placed reliance on the decisions K. Raja Gopal Rao v. Union of India, rep. by its Deputy Secretary, Ministry of Home Affairs, Freedom Fighters Division, New Delhi, Gurdial Singh v. Union of India, and others, Kamlabai Sinkar v. State of Maharashtra and others, Bommakant Venkavva v. Union of India and others, State of Maharashtra and others v. Namdeo.
6. Per contra, it is contended by the learned Assistant Solicitor General for Union of India that the order of rejection, which is impugned in the present writ petition, is strictly in accordance with the clauses in the Scheme framed by the Union of India and there is absolutely no illegality nor infirmity in the impugned order and in the absence of the same, the present writ petition is not maintainable and the petitioner is not entitled for any relief from this Court under Article 226 of the Constitution of India.
7. In the above backdrop, now the issues that emerge for consideration of this Court in the present writ petition are whether the impugned order of rejection passed by the respondent is sustainable and tenable and whether the petitioner is entitled for any relief from this Court under Article 226 of the Constitution of India.
8. The Union of India, with a laudable and sacred object of safeguarding the freedom fighters from the onslaught of the financial constraints, which they are exposed to because of the sacrifices made by them during the freedom struggle, introduced the Swatantra Sainik Samman Pension Scheme, 1980. The benefit given under the said scheme in favour of the freedom fighters and their dependants is a right conferred on them and it is neither a gratis nor a charity. The authorities entrusted with the duty of dealing with the claims under the said scheme, are required to adopt a pragmatic and sympathetic approach towards their claims and the claims under this scheme shall not be dealt with in a mechanical and hyper technical manner. Therefore, the issue in the present writ petition is required to be examined in the light of the above aspects and in the light of the principles laid down by the Hon'ble Apex Court and this Court in various pronouncements.
9. In the instant case, the respondent authority rejected the claim of the petitioner by virtue of an order dated 19.01.2004 and the only reason mentioned in the said order reads as under.
“The applicant has mentioned his camp’s name as “Peddaram” whereas the State Government and PKCs & CPCs indicate the camp’s name as “Tiruvuru”. There is contradiction in the name of camp.”
10. Therefore, it is very much evident from the above order of rejection dated 19.01.2004 that only one contradiction was pointed out by the respondent with regard to the name of the camp. It is the case of the petitioner that subsequently by way of a representation it was clarified by him saying that the name of the camp was wrongly mentioned as ‘Peddaram’ instead of ‘Tiruvuru’ due to a typographical mistake and the said representation was forwarded to the Union of India by the State Government on 26.04.2004. It is to be noted that complaining inaction on the part of the respondent-authorities in taking action, petitioner filed W.P.No.26313 of 2005 wherein this Court, by way of an order dated 9.12.2005, directed the respondent to consider and dispose of the said representation within a period of six weeks. The inaction on the part of the respondent authorities pursuant to the order of this Court compelled the petitioner to file C.C.No.1013of 2006 before this Court.
11. Eventually, the respondent passed the impugned order dated 20.10.2006, rejecting the claim of the petitioner once again not only on the ground of discrepancy with regard to the name of the boarder camp but also on the other ground touching certain discrepancies in the recommendations of the Hyderabad Special Screening Committee. A perusal of the impugned order dated 20.10.2006 makes it abundantly clear that on discrepancy in the name of the camp, except saying that the petitioner did not give any further explanation to the discrepancy in the name of the boarder camp, the respondent authorities did not assign any other reason for rejection of the claim of the petitioner. It is also to be noted that peculiarly the respondent authorities raised another objection with regard to recommendation of the Hyderabad Special Screening Committee. Admittedly, this was never the ground in the earlier order of rejection. It is noteworthy that as per the averment in the writ affidavit at paragraph No.6 the names of similarly situated persons, viz., (1) Chinta Shankaraiah, Sanction file No.112/2198/97; (2) Seelam Ramireddy, sanction file No.112/2699/97; (3) Ainala Narasaiah, sanction file No.112/5348/97; (4) Seelam Gopireddy, sanction file No.112/5366/97, were recommended by the same Committee were accepted and pension was granted in their favour. The said aspect is not seriously disputed by the respondents in their counter except stating that the said sanctions were made before discovery of irregularities and subsequent systematic improvements. In the considered opinion of this Court, the said reason assigned by the respondent is neither sustainable nor tenable.
12. At this juncture, it may be appropriate to refer to the judgment of this Court in K. Raja Gopal Rao v. Union of India, rep. by its Deputy Secretary, Ministry of Home Affairs, Freedom Fighters Division, New Delhi (1 supra) held at paragraphs 8 and 9 held as under:
“If the petitioner's case is considered in the light of the propositions laid down in the latter decision, it is not possible to entertain his prayer for issue of a mandamus to the respondents to sanction pension to him under the 1980 Scheme. However, keeping in view the admitted fact that Sri K. Kistaiah, against whom arrest of warrant was issued along with the petitioner, has been treated as freedom fighter for the purpose of the 1980 Scheme and pension has been sanctioned to him, I feel that ends of justice would be met by directing respondent No. 1 to once again consider the petitioner's case for sanction of pension in the light of the documents already furnished by him as also the documents annexed with the writ petition and decide the same keeping in view the fact that pension has already been sanctioned to a similarly situated person namely, Sri K. Kistaiah.
9. In the result, the writ petition is allowed. The rejection of the petitioner's claim for grant of pension under the 1980 Scheme vide letter dated 3-1-2006 is declared illegal and quashed. Respondent No. 1 shall reconsider the petitioner's case in the light of the observations made in this order and pass appropriate order with in a period of one month from the date of receipt of certified copy of this order. If the Government of India comes to the conclusion that the petitioner's case is similar to that of Sri K. Kistaiah, then appropriate order be passed for sanction of pension to the petitioner with effect from 12-9-2003 i.e. the date on which pension was sanctioned to Sri K. Kistaiah. In that event, arrears shall be paid to the petitioner within next three months.”
13. In view of absence of any dispute with regard to grant of freedom fighters pension in favour of similarly situated persons, this Court does not find any justification on the part of the respondent in denying the benefit to the petitioner herein. Therefore, the contention contra advanced by the respondent is liable to be rejected.
14. It is also noteworthy that in Kamalabai Sinkar v. State of Maharashtra and others, (3 supra), Gurdial Singh v. Union of India and others (2 supra) and Bommakanti Venkavva v. Union of India and others (4 supra), the Hon’ble Apex Court and this Court categorically held that the aspect of participation in the freedom movement shall be decided on the basis of touchstone of probabilities but not on the touchstone of test of beyond reasonable doubt.
15. It is also relevant to refer to the judgment of the Hon’ble Apex Court in State of Maharashtra and others v. Namdeo (5 supra) while dealing with the issue of freedom fighters pension, at paragraph No.19 held as under:
“The aforementioned discussion leads us to sum up the legal position as under.
a. The claims of the freedom fighters are to be dealt with, with sympathy.
b. The authorities are not to go by the test of “beyond reasonable doubt” and standard of proof based on this principle has to be discarded.
c. On the contrary, the principle of probability is to be applied and eschewing the technicalities, the approach should be to uphold the entitlement.
d. When scheme itself mentions the documents which are required to be produced by the applicant, normally those documents need to be produced to prove the claim.
e. The High Court exercising writ jurisdiction does not sit in judgment over the decision of the State Government like an appellant authority. The order of the State Government is to be examined applying the parameters of judicial review which are available in examining the validity of such orders.
f. Even if order is found to be perverse or flawed, the High court can, at the most, remit back to the State Government to reconsider the case.
However, this Court has also observed that there may be cases where because of long lapse of item or other circumstances beyond the control of the applicant, it is almost impossible or cumbersome to procure and produce all the stipulated documents. In such cases, the claim cannot be summarily rejected for want of documents, even though as per the Pension Scheme, such documents are to be provided. We are of the opinion that to meet such eventualities, following principle needs to be added.
g. On the basis of evidence/documents/ material submitted by the applicant, the Government should examine whether it is a genuine case and the documents produced establish that the applicant had participated in the freedom movement. It should be done applying the principle of probability. If the material/documents produced are otherwise convincing, the Government in appropriate cases may not insist on strict compliance with all the requirements stated in the Scheme.”
16. In view of the above narration and the judgments referred to supra and the principles enunciated therein, this Court is of the opinion that the impugned order of rejection passed by the respondent cannot be sustained in the eye of law and the same is highly preposterous, unreasonable and cannot stand for the twin tests of reasonableness and rationality. The authorities while dealing with the claims are required to be sympathetic and shall not be hyper technical. Having granted pension in favour of similarly situated persons, the respondent authorities are not justified in refusing the same benefit to the petitioner. Since the petitioner is in the evening of his life, this Court deems it appropriate that his claim deserves to be redressed as expeditiously as possible.
17. For the aforesaid reasons, this writ petition is allowed, setting aside the proceedings No.52/CC/8/2006, dated 20.10.2006 issued by the respondent. The respondent-Union of India is directed to grant freedom fighters pension in favour of the petitioner from the date of his application, within a period of three months from the date of receipt of a copy of this order. No order as to costs. As a sequel, miscellaneous petitions, if any, stands closed.
JUSTICE A.V. SESHA SAI.
7th November, 2014 Js.