Hon'ble Mrs. Ranjana Pandya,J.
Heard learned counsel for the petitioner and also the learned Standing Counsel.
2. The present writ petition has been filed by the petitioner seeking the following reliefs:-
(i)issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1.10.2009 passed by the respondent no. 2, vide Annexure No. 1 to the writ petition.
(ii)issue a writ, order or direction in the nature of mandamus commanding and directing the respondent nos. 1 & 2 to grant and pay Samman pension/central freedom fighter family pension to petitioner with effect from 5.4.1995 with interest under the aforesaid pension Yojana, 1980.
(iii)issue further writ, order or direction in the nature of mandamus commanding and directing the respondent nos. 1 & 2 to grant and pay life time pension of her husband, late Harihar Singh to petitioner since 8.8.1980 to 4.4.1995 with interest under the aforesaid pension Yojana, 1980.
3. It has been contended by the counsel for the petitioner that the order passed by the respondent no. 2 is bad in the eyes of law. All the material having not been considered, the said order is arbitrary and biased. It has further been argued that Parashuram, whose case stands on the same footing, has been granted central pension whereas the petitioner has been refused the same. Perusal of the impugned order shows that the case of Parashuram Singh was based on the ground of his claimed jail suffering whereas the claim of the petitioner was on the ground of underground suffering of her husband.
4. Admitted facts are that the husband of the petitioner Sri Harihar was not getting the pension of any kind either from the State or from the Center. It is also admitted that the petitioner is getting pension from the State of Uttar Pradesh. It has been argued on behalf of the petitioner that the husband of the petitioner was a proclaimed offender for more than six months, hence, according to the scheme, in the event of his death, the petitioner is entitled to get the Samman pension given by the Central Government.
5. Learned Standing Counsel appearing for the State as well as the learned counsel appearing for the Government of India has argued that the petitioner does not meet the eligibility criteria and evidenciary requirement of the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as the Pension Scheme, 1980). Hence, she not being eligible, the same was rightly refused to her.
6. Reference has to be made to Para 9 (B)(1)(2), which runs as under:-
"9. ([k) tks Hkwfexr jgs:-
(1) vijk/kh ?kksf"kr djus ds U;k;ky; ljdkj ds vkns'kksa ls lacaf/kr nLrkosth izek.ki= ftlesa mls idMokus] ;k mldks fxjQ~rkj djokus ds fy;s buke ?kksf"kr fd;k x;k gks ;k utjcanh ds vkns'k fn;s x;s gksA (2) ;fn ljdkjh fjdkMZ miyC/k u gks rks tkus&ekus Lora=rk lSukfu;ksa ls izek.ki= ftUgksaus Lo;a ikWp o"kZ ;k mlls vf/kd vof/k rd tsy Hkksxh gksA"
7. Thus, petitioner, who claims her husband to have undergone underground suffering, will only be eligible for grant of Samman pension provided it is proved that he remained underground for more than six months being a proclaimed offender against whom award for arrest was announced or detention order was issued but not served. The claim of underground suffering is considered subject to furnishing of the following evidence:-
(i)Primary evidence: Documentary evidence by way of Court's/Government's orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or for ordering his detention.
In absence of the primary evidence, secondary evidence is admissible, which is as under:-
(ii)Secondary evidence:- In the absence of primary record based evidence, a Non-Availability of Records Certificate (NARC) from the concerned State Government/Union Territory Administration, along with a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of minimum two years and who happened to be from the same administrative district can be submitted as supporting evidence to the claim.
Where record of the relevant period are not available, a Non-Availability of Records Certificate (NARC) from the concerned authority is mandatory pre- requisite for secondary evidence. The NARC should not be general and vague but should conform to the instructions issued by the Government of India, Ministry of Home Affairs. The instructions, inter alia, require the State Governments to issue NARC only after due verification from all sources.
8. The counsel for the petitioner has argued that the Collector, Ballia has conducted the inquiry and submitted his report dated 26.9.2009 forwarding it with the endorsement that the petitioner may be granted central pension. The Court thinks that this endorsement of the Collector is no binding on the authority for taking the decision. In as much as it is just a recommendation letter forwarded to the Central Government. Besides, perusal of the record shows that the Samman pension under the Pension Scheme, 1980 is granted only when the requirements of the said scheme are fulfilled. Grant of freedom fighter pension by the State Government under its own pension scheme does not ipso facto entitle a person for grant of Samman pension under the Pension Scheme, 1980 of the Central Government. Since the two schemes are separate and distinct, as such, the conditions for grant of pension by the Central Government are more rigorous than that of the State. This Court in its order dated 9.12.2013 has held as under:-
"The fact of the matter is that before the Central Government for the same judgment there were two contradictory copies of the judgment, first copy issued on 27th July, 1974 and second copy issued on 12th June, 1978, in view of this, as the Central Government has proceeded to mention that same raises serious doubt about the genuineness of records, this Court proceeds to direct the District Magistrate, Ballia to get an enquiry conducted in the matter and submit report by the next date fixed."
9. After this order was passed, it was detected that the record had been weeded out and was not traceable. Thus, as soon as this situation arose that the record was not traceable, it was imperative on the petitioner to have taken recourse to the second part, i.e., the secondary evidence and the petitioner should have filed secondary evidence in the form of two co-prisoners having Central Freedom Fighter Pension, who have proven jail of minimum two years and were with the applicant in the same jail. But, compliance of this part was never done by the petitioner nor this compliance has seen the light of the day. Thus, on this ground, the respondent no. 2 passed the impugned order, which cannot be termed to be arbitrary or erroneous since the petitioner did not abide by the procedure prescribed.
10. Learned counsel for the petitioner has placed reliance upon a Judgment rendered by the Apex Court in the case of Gurdial Singh Vs. Union of India & others, JT 2001 (8) SC 165 but the facts of this case are different and do not come to the rescue of the petitioner because the applicant of that case was initially granted pension, which was later on withdrawn. Thus, the facts of that case differ.
11.The petitioner has further relied upon a Judgment of this Court passed in Misc. Bench No.1282 of 2007, Jharkhande Tripathi Vs. Union of India and two others but this ruling also does not help the petitioner because in this case also the matter relates to withdrawal of the pension already granted.
12.Thus, in view of the above discussions, the writ petition is liable to be dismissed, which is hereby dismissed.
Order Date :- 25.4.2014 Ram Murti