ivil Appeal No 4496 of 1989
From the Judgment and Order dated 1541986 of the Madras High Court in Writ Appeal No 411 of 1986
CK Sucharita for the Appellant
B Dutta Additional Solicitor General NP PP Singh and Mrs Sushma Suri for the Respondents
The following Order of the Court was delivered Delay condoned
722 Leave granted
Heard counsel for the parties
The appel lant who is a freedom fighter was refused the grant of pension under the Swatantrata Sainik Samman Scheme by the Ministry of Home Affairs Union of India and hence the appellant approached the High Court for the issue of a writ of certiorarified mandamus
The appellant s writ petition was dismissed by a learned single Judge and the writ appeal against the said order was also dismissed by a Division Bench
Hence the present appeal by special leave
Initially the appellant sought the grant of pension on the ground that as a freedom fighter he was kept in police custody for fifteen days and after conviction he underwent imprisonment for three and a half months
Since under the Freedom Fighters Pension Scheme a freedom fighter must have undergone a minimum period of inprisonment for six months for his participation in the freedom struggle in order to get pension under that head the appellant was refused pension
Thereupon he applied for grant of pension on another ground viz that he had suffered permanent loss of vision in his left eye due to brutal lathi charge by the police against freedom fighters
The appellant s claim of permanent loss of vision in the left eye was duly certified by Government doctors
The District Collector after making a detailed enquiry certified the claim of the appellant as a bona fide one and recommended his case for grant of pen sion by letter dated 13984
Accepting the report of the Collector the Deputy Secre tary to the Government of Tamil Nadu addressed respondent No 2 as under It is seen from the verification report that Thiru R Narayanan the freedom fighter has been permanently physically handicapped due to his involvement in the freedom struggle of the nation
In the circumstances stated above
I am directed to request that the Government of India may kindly be moved to sanction Swatan trata Sainik Samman Pension to Thiru R Narayanan of Salem District
 In spite of the medical certificates issued by Govern ment doctors and the recommendations of the District Collec tor and the State Government for grant of pension under the SSS Pension Scheme the Ministry of Home Affairs declined to grant pension to the appellant on the ground that it is not possible to grant Samman Pension in terms of permanent incapacitation hence your case stands rejected by communi cation dated 30485
It was in such circumstances the appellant 723 moved the High Court of Madras for the issue of a writ of certiorarilied mandamus but failed to meet with success
On notice being issued to the respondents a counter affidavit has been filed on behalf of the Union of India by Shri Kishan Chand Under Secretary Ministry of Home Af fairs
In the counter affidavit it has been stated as fol lows The alleged incapacity of his losing vision of one eye as a result of lathi blow during the freedom struggle is not considered as permanent incapacitation as contemplated under clause 3e under para 4 of the Scheme under the heading who is eligible 
A person is eligible for the pension under the Scheme if he became permanently incapacitated during firing or lathi charge which would mean a person in such a case who has suffered complete loss of eye sight        The case of the petitioner has been consid ered and correctly rejected as per the terms of Scheme the petitioner not being eligible for pension
Moreover the petitioner has not been able to produce any documentary evidence from official records of the relevant period in support of his claim of loss of vision in one eye
In any case the Government having decided as a policy in not treating loss of one eye as permanent incapacitation a dis criminatory decision cannot be taken in favour of the petitioner
 Learned counsel for the appellant urged before us that the respondents are not justified in construing clause 3e of Para 4 of the Pensions Scheme to mean that the incapaci ty besides being permanent should also be of a total na ture and as such the denial of pension to the appellant under clause e is unjust
Under the Scheme a freedom fighter is eligible to receive pension if he satisfies one of the following clauses viz a Had suffered a minimum imprisonment of six months three months in the case of women b Had remained underground for more than six months provided i he was a proclaimed offender or 724 ii he was a person on whom an award for arrest had been announced or iii he was a person against whom detention order had been issued but not served
c Had been interned in his home or externed from his district provided the period of internmentexternment was for six months or more
d Had his property confiscated or attached and sold due to participation in the freedom struggle e Had become permanently incapacitated during firing or lathi charge f Had lost his job Central or State Govern ment and been thus deprived of his means of livelihood on account of his participation in the National movement
 We are now concerned only with the interpretation of clause e of the Scheme
The clause only refers to perma nent incapacitaton due to firing or lathi charge and not to total incapacitation
The respondents would however take the stand that the incapacitation must not only be permanent but it must also be a total one
Hence according to them since the appellant has not lost vision in both the eyes the incapacitation though permanent is only partial and not total and as such he is not eligible to grant of pension under clause e of the Scheme
The interpretation given by the respondents to clause 3e of Para 4 cannot be sustained because the words used in the clause are permanently incapacitated  and not perma nently totally incapacitated  If the stand of the respond ents is to be accepted it would be opposed to the plain meaning of the words and result in addition of more condi tions to the clause what the framers of the Scheme have laid down
It cannot be disputed in view of the certificates issued to him by the Government doctors that the appellant has suffered permanent incapacitation of his left eye due to lathi blows received by him during the freedom struggle
The question would then be whether that incapacity would satisfy the requirement of clause e or not
As already stated clause e refers only to permanent incapacitation and not total incapacitation of a permanent nature
It therefore follows 725 that the measure of test laid down by the clause is the permanent nature of the incapacitation and not the total nature of the incapacitation
If clause e is to be inter preted in the manner set out in the counter affidavit it would follow that a freedom fighter who has lost a leg or an arm cannot claim payment of pension on the basis of perma nent incapacitation inasmuch as the incapacitation suffered by him is not of both the legs or both the arms
It would be the height of injustice to freedom fighters who are a diminishing lot to construe clause e in the said manner
Highly inequitable therefore it would be for the appellant to be denied pension under the Scheme because he has suf fered loss of vision only in one eye and not in both the eyes
The respondents have failed to see that under the Scheme if a freedom fighter had undergone imprisonment or had been underground for a minimum period of six months he can be granted pension
In such circumstances can it be contended that a person who has permanently lost his power of vision in one eye due to firing or lathi charge cannot be granted pension unlike a person who has been in prison for six months or had remained underground for six months in order to evade arrest
The Scheme has been formulated with a view to acknowl edge the services rendered to the country by patriotic citizens during the freedom movement and who had suffered at the hands of the British Rulers in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country
The respondents are therefore not justified in refusing to grant pension to the appellant under clause e of the Scheme on the ground that the perma nent incapacitation suffered by him does not satisfy the requirements of clause e of the Scheme
The learned Single Judge and the Division Bench of the High Court while re jecting the Writ Petition and Writ Appeal filed by the appellant have only taken into account the period of im prisonment undergone by the appellant and the said period falling short of the prescribed minimum of six months and have not considered the appellant s claim for pension under clause e
Before concluding the judgment we may also refer to two other objections that have been raised by the respondents in their counteraffidavits
The first one is that the appel lant s claim for pension under clause e is an after thought since he had putforth such a claim only after his claim for pension on the ground of incarceration had been rejected
The second objection putforth is that the petitioner has not been able to produce any docu 726 mentary evidence from official records of the relevant period in support of his claim of loss of vision in one eye
 There is neither justice nor grace in the respondent s putting forth such objections
No one can really expect official records to have been preserved for a period of 40 years to prove the treatment given to the petitioner for the injuries sustained by him during the freedom struggle
Hence the objection relating to non production of official records of the relevant period by the appellant to prove the sus tainment of injury by him deserves outright rejection as well as outright condemnation
As regards the criticism that the appellant s claim under Clause e appears to be an after thought this too merits instantaneous rejection
As we have already pointed out the government doctors who have examined the appellant have found his claim of permanent incapacitation of the left eye to be true and the State Government authorities have after due enquiry accepted the bona fides of the appellant s claim and recommended his case for grant of pension under the SSS Scheme by the respond ents
Consequently merely because the appellant perhaps out of ignorance of the several heads under which the claim of pension could be made had applied initially for grant of pension under clause e it can never be said that the present claim of the appellant is an after thought
For all the aforesaid reasons we allow the appeal with costs of Rs2000 and quash the impugned order of the re spondents dated 3041985 set aside the judgment of the High Court and issue a rule absolute in favour of the appel lant as prayed for
PSS Appeal allowed


Summary:
Paragraph 173 of Chapter 17 Part II of the Report of the Fourth Central Pay Commission entitled Government em ployees retiring during the period January 1 1986 to Sep tember 30 1986 to consideration of the entire dearness allowance drawn by them upto December 31 1985 as pay for pensionary benefits
Rule 52 of the Central Civil Services Pension Rules 1972 permits the day on which a Government servant retires from service to be treated as his last working day
The proviso thereto however states that in the case of a Government servant who retires voluntarily under Rule 48 A the date of retirement shall be treated as a non working day
The petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court under the provisions of Rule 48 A of the Rules with effect from the forenoon of January 1 1986 by an order dated December 6 1985
His claim to the benefit of paragraph 173 was not acceded to
In the writ petition it was contended for the respond ents that as in view of the proviso to rule 52 of the Rules the petitioner was not entitled to the salary for the day of his retirement he was not entitled to the benefit of paragraph 173
Allowing the writ petition HELD Under paragraph 173 of Chapter 17 Part II of the Report of the Fourth Central Pay Commission the benefits recommended will be available to employees retiring during the period January 1 1986 to September 30 1986
In the instant case the petitioner was permitted to retire volun tarily from the service of the 563 Registry of the Supreme Court with effect from the forenoon of January 1 1986
The fact that under the proviso to rule 52 of the Rules the petitioner will not be entitled to any salary for the day on which he actually retired has no bearing on the question as to the date of retirement
The petitioner could not be said to have retired on December 31 1985
It has then to be said that he had retired with effect from January 1 1986 and that is also the order of this Court dated December 6 1985
He therefore comes within the purview of paragraph 173 of the recommendations of the Pay Commission
565A E The respondents to calculate and pay to the petitioner within three months his pension in accordance with the recommendation of the Pay Commission as contained in para graph 173
566D