HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.4222 OF 2009 ORDER: This writ petition has been instituted calling in question the legality and validity of the orders passed by the first respondent on 12.11.2008, declining to grant ‘Samman pension’ to the petitioner. 2. The writ petitioner claimed that he has participated in Aryan Satyagraha launched by Sarvadeshik Arya Prathinidhi Sabha, New Delhi, against the Nizam State of Hyderabad. It is claimed by him that he has gone underground for a period of about six months between 01.01.1939 to 30.06.1936 to avoid apprehension at the hands of Nizam State Police. He submits that he has continued to participate in the Liberation Struggle of the former State of Hyderabad till the famous police action took place. On the strength of the certificates issued by prominent leaders and Aryan Samaj, he claimed Samman Pension under the Swathantrata Sainik Samman Pension Scheme, 1980. Inspite of the necessary material proof made available, the first respondent has rejected the application of the writ petitioner for sanction on the following grounds:- (a) Petitioner has not furnished acceptable record-based primary evidence duly verified by the State Government; (b) Petitioner has not furnished a valid Non-Availability of Records Certificate (NARC) from the State Government; (c) Petitioner has not submitted any Personal Knowledge Certificate (PKC) from the eligible certifiers. (d) The camp-in-charge certificate issued by Sri S. Ambadass Rao is not acceptable as such certificate should be considered only in cases which were recommended by the erstwhile Hyderabad Special Screening Committee, whereas in the case of the petitioner, the Hyderabad Special Screening Committee did not verify his case; (e) A positive recommendation of the State Government, which is essentially required for sanction of pension has not been forthcoming from the State Government. Questioning the validity of the rejection order, the present writ petition has been instituted. 3. It would be appropriate to first notice the salient features of the Swathantrata Sainik Samman Pension Scheme, 1980, and the purpose behind subsequent constitution of the Special Screening Committee. 4. The Government of India, during the Silver Jubilee Year of Indian Independence introduced a scheme for grant of pension to freedom fighters and in case they have already died, to their eligible dependants, with effect from 15.08.1972. This original scheme has been refined and liberalized thus, brining in “Swathantrata Sainik Samman Pension Scheme, 1980” with effect from 01.08.1980. All those persons who participated in the freedom movement in some way or the other are not rendered eligible but only few categories of sufferers have been rendered eligible. Those who are rendered eligible for grant of pension under this scheme are: i. Martyrs, who laid down their lives either in action or in detention or subsequent to completion of the capital punishment imposed against them for participation in the freedom struggle; ii. Those who have suffered imprisonment for a minimum period of six months and those who suffered imprisonment of three months in case of women and members belonging to Scheduled Caste or Scheduled Tribe on account of participation in the freedom struggle; iii. Persons, on account of participation in freedom struggle, remained underground for a period of more than six months provided they are proclaimed as offenders, or those for whose arrest a reward was announced or of those against whom detention orders were issued but could not be served; (emphasis is brought out) iv. Those on account of participation in the freedom struggle, were interned in their home district or externed from their home district for a minimum period of six months; v. Persons whose property was confiscated or attached or sold due to participation in the freedom struggle; vi. Those who became permanently incapacitated either during firing that was ordered or Lathi charge ordered; vii. Those who have lost their Government job for participation in the freedom struggle provided they were not reinstated into service before expiry of two years from their initial date of dismissal or removal and they were not in receipt of benefits of pay and allowances for the said period; viii. Such of those, who were awarded punishment of a minimum of ten strokes of caning/flogging/whipping due to participation in the freedom struggle. 5. The eligible persons are required to produce relevant documents from official records or newspapers of the relevant time. The official records could be in the form of imprisonment / detention certificate from the jail authority concerned or the District Magistrate or the State Government indicating the period of sentence awarded, the date of admission, the date of release, the relevant facts of the case and the reasons for the release. In case the relevant records are not available, the secondary evidence in the form of certificates issued by two co- prisoners who have proven jail suffering for a minimum of one year period and who were inmates of the jail along with the applicants, can be produced. However, if a sitting or a former M.P or M.L.A happens to issue a certificate, that was considered as sufficient evidence of the suffering of the claimant. Similarly, secondary evidence in the form of Personal Knowledge Certificates (PKC) from any prominent freedom fighter who has proven jail suffering of a minimum of two years is also considered. Under the Swathantrata Sainik Samman Pension Scheme, the application should be sent in duplicate to the Chief Secretary of the concerned State/Union Territory Administration and copy submitted to the Deputy Secretary to the Government of India, Freedom Fighters Division, Ministry of Home Affairs, New Delhi. The claims would be processed by the Government of India only on receipt of verification and entitlement to pension report from the State Government/Union Territory Administration concerned. 6. From a perusal of the Swathantrata Sainik Samman Pension Scheme, 1980, it becomes clear that the credentials are required to be established by the applicants with reference to either primary or secondary evidence. These requirements have been found to be difficult to be produced by majority of those who participated in the integration of the erstwhile Nizam State of Hyderabad with the rest of the Indian Union. Therefore, the Government of India in the Ministry of Home Affairs through their office Memorandum No.8/48/83-FF(P) dated 05.10.1983 announced the decision that the applications from such participants of the liberation struggle of the erstwhile Nizam State of Hyderabad be screened/scrutinized by a `Special Screening Committee (SSC)’ headed by Sri Govind Bhai Shroff of Aurangabad and comprising of Sri Jagannath Rao Chanderki of Gulbarga District and Sri P. Thirumal Rao of Khammam District as members. The Deputy Secretary in charge of the Freedom Fighters’ Division of the Ministry of Home Affairs has been made the Convenor of this Committee. The meetings of this Committee were required to be held at New Delhi or at such other convenient places as may be decided upon by the Committee. The applications of eligible persons will be initially scrutinized by the Ministry of Home Affairs and then placed before the said committee for their recommendations. 7. The Supreme Court in Mukund Lal Bhandari Vs. Union of India[1], after elaborately considering the matter, issued the following directions:- “[a] The respondents should accept the applications of the petitioners irrespective of the date on which they are made. The applications received hereafter should also be entertained without raising the plea that they are beyond the prescribed date. [b] The respondents should scrutinies every application and the evidence produced in support of the claim and dispose it of as expeditiously as possible and in any case within three months of the receipt of the application, and the documents proof keeping in view the laudable and sacrosanct object of the Scheme. [c] The pension should he paid to the applicant front the date on which the original application is received whether the application is filed with or without the requisite evidence. The sanction of tile pension would, however, he subject to the requisite proof in support of the claim.” 8. Thereafter, the Supreme Court has again considered the matter in great detail in Duli Chand Vs. Union of India[2], Surja Vs. Union of India[3], Union of India Vs. Ganesh Chandra Dolai[4], Union of India Vs. M.R. Chelliah Thevar[5] and Government of India Vs. K.V. Swaminathan[6]. 9. In Union of India Vs. Kaushalaya Devi[7], the Supreme Court has clearly brought out in which set of cases, the dictum laid by it in Mukund Lal Bhandari’s case should be followed and in which other cases, the sanction of pension should be from a prospective date. 10. It, therefore, emerges from a careful analysis of the legal principles set out by the Supreme Court that, wherever the claim for a freedom fighters pension is based upon the proof of the eligibility criteria set out in Swathantrata Sainik Samman Pension Scheme, the claimant will have to be granted freedom fighters pension from the date he submits the application, though the actual proof may have been furnished subsequent to the date of the application. On the other hand, wherever the freedom fighters pension is ordered to be sanctioned extending the benefit of doubt on the strength of the secondary evidence produced by the claimant, in all such cases the pension will be sanctioned only from the date of the order and not from the date on which the application is submitted. 11. What exactly is the standard of proof that is required to be established by the claimants who seek Freedom Fighters Pension, was dealt with by the Supreme Court, in Gurdial Singh Vs. Union of India[8], as follows: “7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari's case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour…….” 12. Hence, it is beyond any pale of doubt that the standard which the Ministry of Home Affairs can look for, while dealing with cases for sanction of Freedom Fighters Pension must not be proof beyond doubt like in a criminal case. The attempt that should be made is, not to find lacunae or shortcomings in the evidence produced by the applicants nor was it proper to examine the record under a microscope. The rational approach is to find as to whether the evidence produced by the claimants is a probable one that lends credence to the claim made or not and on that basis the decision should be rested. 13. In the instant case, the State Government through their Revenue (F.F III Department) communication dated 22.11.2007 addressed the Under Secretary to the Government of India, Ministry of Home Affairs (F.F Division), New Delhi, requesting the Ministry of Home Affairs to sanction the Freedom Fighters Pension under the Swathantrata Sainik Samman Pension Scheme, 1980, to the applicant, while enclosing thereto the re-verification report along with checklist and enclosures received from the Collector, Hyderabad District in respect of the petitioner. The Collector’s report concerned is submitted on 14.09.2007 in this regard. Earlier thereto, the State Government on 06.01.2003 made available to the Ministry of Home Affairs the Personal Knowledge Certificates (PKC) issued by Sri Padige Rama Swamy, Sri S. Ambadass Rao and Sri M. Ramaiah. The jail certificate and the pension payment order of Sri Ramaiah have also been forwarded to the Government of India. Verification report submitted by the Collector, Hyderabad District has clearly indicated that the petitioner has suffered owning to his participation in the freedom struggle as detention orders were issued against him but they could not be served on him. Sri S. Ambadass Rao was the Assistant Camp-in-charge of Sholapur camp, which was run and operated under the charge of Sri K. Lakshman Rao. Sri K. Lakshman Rao appears to have died sometime during 1998. Hence, Sri S. Ambadass Rao certified that he was looking after the affairs of the camp between September 1947 to September 1948, at Barshi Town, Akelkote, Naldurge, Heperga, Mahendergi, etc, which are all part of the Sholapur District. There are about hundred inmates in the camp and the writ petitioner is one of them and he has participated actively. Sri S. Ambadass Rao has certified that the detention order was issued against the petitioner but it could not be served. The petitioner has also made available the certificate issued by Arya Prathinidhi Sabha, Sultan Bazar, Hyderabad and also a certificate issued by Sri N.V. Ananth Swamy, a prominent freedom fighter and Thamarapathra Graheeta. Similarly, Sri Partha Saradhi has also given a certificate that the petitioner has gone underground for about six months from 01.01.1939 to 01.06.1939 to avoid detention pursuant to the orders issued against him for his detention. The certificate issued by Sri N.B. Ananth Swamy and Sri Partha Saradhi make this position very clear. These certificates are available as enclosures to the application submitted by the petitioner on 13.03.1986 but in the instant case, the same has not been considered or adverted to by the Government of India. They merely proceeded to conclude that the petitioner has not produced sufficient and necessary secondary evidence. 14. As was already noticed supra, Swatanthra Sainik Samman Pension Scheme, 1980, recognizes for grant of pension, the underground suffering of any person for a minimum period of six months provided he was “one for whose detention order was issued but not served”. However, a raider was added that voluntary underground suffering or self exile suffering for party work under the command of the party leaders is not to be reckoned. In the instant case, the petitioner has specifically claimed that he had suffered not because he has been asked to go underground by the party leaders but he has gone underground to avoid the detention order issued against him. Clearly the Swatanthra Sainik Samman Pension Scheme, 1980, has drawn a well marked distinction between voluntary suffering of underground period and one which has been undergone to avoid a detention order. It is not very difficult for one to understand the significance of going underground to avoid detention orders. Detention orders are possibly issued against only the most active and prominent participants in any struggle. If such persons are detained and thus removed, the rest of the participants would get dispirited or demoralized and the movement or struggle will get weakened so that at some stage or the other, the State would gain an upper hand and thus control the movement effectively. When viewed in this setting, the Nizams State of Hyderabad has taken as many measures as it could to effectively quell the liberation struggle launched against it. Qualitatively, there was any amount of struggle between the freedom fighters in the rest of the British India and those who have participated in the liberation struggle in the Nizam’s State of Hyderabad. History has recorded that those who have participated in the liberation struggle of Hyderabad state had to surmount greater difficulties as the rulers of the former Hyderabad State and its officers were far more cruel than the British establishment in the rest of India. Further, it should not be lost sight of the fact that by late 1930’s the Freedom struggle in the rest of India has been greatly galvanized under the leadership of Mahatma Gandhi and it was clearly on the home stretch. There is not a single province, which has not thrown up sizable numbers of participants in the freedom struggle there. The advantages enjoyed by men and women in the rest of India are plainly attributable to higher knowledge about Civil and Political rights and greater percentage of literacy rate than those present in the former Nizam’s State of Hyderabad. Going by the size and dimension of the Nizam’s State of Hyderabad, the number of persons who have participated in its liberation struggle is far insignificant in comparison to the rest of the provinces in the country. Therefore, great significance ought to have been attached to the statements made by prominent freedom fighters certifying that the petitioner has gone underground to avoid a detention order, instead of tersely brushing it aside by the Union of India. 15. The fact that the petitioner has not produced record based primary evidence is of no legal significance at all. The Swatanthra Sainik Samman Pension Scheme, 1980, has clearly recognized that primary evidence may not be readily available and hence secondary evidence can be made available, in the absence of primary evidence. The statement, that the petitioner has not produced Personal Knowledge Certificate (PKC) from the eligible certifiers, by the Ministry, to say the least is a hopeless misstatement of fact. The Swatanthra Sainik Samman Pension Scheme, 1980, recognizes the Personal Knowledge Certificate (PKC) from any prominent freedom fighter who has proven jail suffering of minimum of two years and who happened to be from the same administrative district. Personal Knowledge Certificate (PKC) can be submitted as a supporting evidence to the claim. As was noticed supra, the Collector, Hyderabad District has submitted a complete data in the revised checklist with all enclosures, to his report dated 14.09.2007 and the same was forwarded by the State Government to the Ministry of Home Affairs on 22.11.2007. Sri N.B. Ananth Swamy and Sri Partha Saradhi are two prominent freedom fighters and they are the Thamarapathra Awardees of Government of India in recognition of their incarceration of jail terms. Similarly, Sri S. Ambadass Rao is also a prominent freedom fighter and he was also a Thamarapathra Awardee. He was assistant camp-in- charge of Sholapur Camp conducted by Sri K. Lakshman Rao. It is significant to note that Sholapur District is currently forming part of Maharashtra State and it was forming part of the former State of Hyderabad. As to which District Magistrate has issued a detention order against the petitioner more than 60 or 70 years back is nearly impossible to be traced down now. Therefore, the reasons assigned by the Government of India for rejecting the claim of the petitioner are not germane to the issue. They appear as though invented for purpose of rejecting the claim rather than being the result of careful scrutiny of the claim. 16. As was already noticed supra, the Deputy Secretary to the Government of India, in-charge of the freedom fighters division in the Ministry of Home Affairs has acted as the member Convenor of the Hyderabad Special Screening Committee. Therefore, it is that Convenor who should tender an acceptable explanation as to why the Hyderabad Special Screening Committee has failed to scrutinize the application of the writ petitioner. It is a fundamental principle of law that no one can take advantage of once own wrong or error. If the Ministry of Home Affairs has failed to secure the scrutiny of the application of the petitioner by the Hyderabad Special Screening Committee, it cannot now turn round and seek to take any advantage there from. No reasons are forthcoming as to why the Convenor of the Hyderabad Special Screening Committee or the Ministry of Human Affairs failed to place the papers relating to the petitioner’s claim for scrutiny of the said committee or if the papers are placed before the said committee as to the result of their scrutiny. 17. It was recorded that the petitioner has enclosed Personal Knowledge Certificate (PKC) issued by Sri Partha Saradhi, N.B. Ananth Swamy and Sri S. Ambadass Rao. Dealing with these certificates, it was noted in the impugned order that the petitioner has not submitted the Personal Knowledge Certificate (PKC) from the eligible certifiers. It baffles me that the Thamarapathra Awardee by the Government of India is not recognized as an eligible certifier by the very same Government. I hope and trust that the Ministry of Home Affairs would not be meaning, in the process to heap insult and humiliation on such Thamarapathra Awardees!. 18. There is no rational decision whatsoever behind the impugned action of the respondents in rejecting to award pension to the petitioner under the Swatanthra Sainik Samman Pension Scheme, 1980. Therefore, I set-aside the impugned order and remit the matter back for consideration afresh all such material produced by him by the Ministry of Home Affairs, Freedom Fighters Pension Division for taking appropriate decision and communicate the same at the earliest at any rate on or before 31.01.2012 to the petitioner. 19. With this the writ petition stands disposed of. No costs. _____________________________________ Justice Nooty Ramamohana Rao 10th October, 2011 SP HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO (Pre-delivered Judgment) In WRIT PETITION No.4222 OF 2009 10th October, 2011 SP [1] 1993 SCC Supp (3) 2 [2] 1990 Supp SCC 762 [3] (1991) 4 SCC 366 [4] (1997) 10 SCC 289 [5] C.A.No.7762/96 [6] (1997) 10 SCC 190 [7] (2007) 9 SCC 525 [8] (2001) 8 SCC 8