IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3786 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ PURSHOTTAM @ FAKIRBHAI BHIKHABHAI PATEL Versus UNDER SECRETARY -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3786 of 2001 MR MAHENDRA K PATEL for Petitioner MR JS YADAV for Respondent No. 1 MR HC PATEL, Ld. AGP for Respondent No.2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 30/07/2001 C.A.V. JUDGEMENT 1. Rule. Service of rule is waived by Shri J.S.Yadav, learned Addl.Standing Counsel for the respondent No.1 and Mr.H.C.Patel, learned AGP for the respondent No.2. 2. Purshottam @ Fakirbhai Bhikabhai Patel, petitioner - freedom fighter, a senior citizen, has filed this petition before this Court under Articles 226/227 of the Constitution of India, challenging the order dated 30th March, 2001, passed by Under Secretary, Freedom Fighters Division, Ministry of Home Affairs, Government of India, respondent No.1. It has been contended in the petition that, by the aforesaid order dated 30th March, 2001, the respondent No.1 has rejected the claim of the petitioner for Swatantra Sainik Samman Pension Scheme, 1980 (hereinafter referred to as `S.S.S. Pension Scheme'). 3. The facts giving rise to this petition are as under: 3.1 The petitioner is a freedom fighter (Swatantra Sainik). Earlier the petitioner was an practising advocate in Dholka Court. Now the petitioner is an old aged about 82 years. It has been contended in the petition that petitioner is fully entitled to get the pension from the beginning as he is a freedom fighter and having all requisite qualification to get S.S.S. Pension as per the Scheme of the Central Government. 3.2 It has been contended that petitioner actively participated in freedom fight known as "Quit India Movement". In this freedom fight, the petitioner was detained and kept in jail for more than 10 months which he has proved many times before the respondent authorities by producing all the possible evidence. 3.3 It has been stated that this S.S.S. Pension scheme has been introduced to give respect and honour to freedom fighter who had actively participated in the Quit India Movement. Therefore, looking to the object of the scheme, the Government has to locate freedom fighters to fulfill the object of the scheme and to give honour and respect to the freedom fighter in the real sense instead of raising unnecessary query and technical objection in this behalf. It has been stated in the petition that the petitioner has been granted S.S.S. Pension by the State Government and the petitioner is also fully entitled to get the same benefit from the Central Government. It has been stated that the criteria of six months imprisonment is already fulfilled and therefore the State Government after examining all aspects have recommended the respondent No.1 to grant S.S.S. Pension to the petitioner. 3.4 In view of the aforesaid circumstances, it has been stated in the petition that, somewhere on 30th June, 1996, petitioner had applied before the Central Government for S.S.S. Pension before the Central Government, under the prescribed form to the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. Alongwith such application, he has annexed all requirements and necessary details, like certificate of Jail Superintendent and certificate of Swatantra Sainik Samaj, affidavit of co-prisoners, N.A.R.C. and other documents. Thereafter petitioner has also applied to the State Government giving all details and documents with a view to verify and recommend the same to the Central Government. Therefore petitioner has complied with all the conditions of both the respondent No.1 and 2. In view of the aforesaid application, the State Government has also recommended the petitioner's case as genuine and therefore, he is entitled for the S.S.S. Pension. 3.5 As stated earlier, it has been averred in the petition that the State Government has examined all aspects and considered the facts in details and finally it was found that petitioner is entitled for the S.S.S. Pension and therefore the State Government has recommended the name of the petitioner to respondent No.1 for the grant of S.S.S. Pension to the petitioner. It has been contended that respondent No.1 is seeking exact date of release which information was not possible after more than 50 years. Moreover, the petitioner has also tried to know the same from the Jail authority of Maharashtra & Gujarat but the same authority has denied that the same record is not available and therefore the Jail Authority has issued Non Available Record Certificate (NARC) which is the alternative under the Scheme. 3.5(A) The petitioner had applied for grant of pension under SSS Scheme 1980 with necessary documents in support of the same. The Central Government sent letter dated 26.5.1999 stating that the State Government had informed the Central Government that the petitioner's claim of having undergone imprisonment was not proved from the official records and that the genuineness of the petitioner's claim was not established. The State Government sent its communication dated 29.6.1999 to the Central Government contradicting the aforesaid stand adopted by the Central Government and stating that the State Government had already recommended for granting pension under SSS Pension Scheme vide State Government's letter dated 2.5.1998, and therefore, the State Government had recommended the petitioner's case after clearly stating that the petitioner had suffered an imprisonment for a period more than six months and therefore the State Government recommended the petitioner's case in SSS Pension Scheme under the Scheme of 1980. 3.6 It has been stated that, when earlier the Central Government denied the pension, the petitioner filed a Special Civil Application No.6643 of 1999 before this Court. When the aforesaid matter was placed for hearing before this Court, this Court (Coram: M.S. Shah, J.) by its order dated 11.10.1999 passed the following operative order: "Mr.U.I.Vyas, learned Addl.Standing Counsel appearing for the Central Government states that he has no instructions in the matter. However, in view of the aforesaid clear stand of the State Government as mentioned in the letter dated 2.5.98, a copy of which was also supplied to Mr.U.I.Vyas, this petition deserves to be allowed and the Union of India is required to be directed to consider the petitioner's case for pension under SSS Pension Scheme, 1980 as expeditiously as possible and in any case within one month from the date of the receipt of a certified copy of this order or the writ of this Court whichever is earlier." "The petition has been required to be filed in view of the letter dated 26.5.1999 (Annexure-G) from the Under Secretary to the Government of India and Ministry of Home Affairs which is absolutely contrary to the letter dated 2.5.1998 of the State Government. It is, therefore, just and proper to saddle respondent No.1 with the costs of this petition which are quantified at Rs.2,000/-. The costs shall be paid within one month from the date of receipt of a certified copy of this order." 3.7 Pursuant to the aforesaid order of this Court, the State Government had made a recommendation dated 19.11.1999 alongwith various supporting documents. However, vide order dated 30.11.1999 the claim of the petitioner was rejected stating that there were over writings in the certificate issued by the co-prisoner and moreover the date of release from Ahmedabad Central Jail, Sabarmati had also not been specified and, therefore, it was stated that as per the scheme the period of imprisonment of over six months had not been proved and hence the petitioner cannot be treated to be eligible for pension under the said Scheme. 3.8 On receipt of this Court's order dated 30.11.1999 the petitioner wrote a letter to the Central Government on 4.12.1999 requesting reconsideration of its earlier stand. The Central Government vide its communication dated 11.1.2000 stated that the representation for review should be forwarded only through the State Government. Accordingly, the petitioner informed on 17.1.2000 that his representation for review had already been forwarded through the State Government vide letter dated January 7, 2000. 3.9 It appears that against the aforesaid action of the respondent No.1, the petitioner filed Special Civil Application No.1403/2000 before this Court. When the aforesaid matter was placed for hearing before this Court, it appears that the affidavit dated 22.5.2000 has been filed on behalf of the respondent No.1. In the said affidavit, the facts which are already there in earlier order dated 30.11.1999 have been reiterated with emphasis. When the aforesaid matter was placed for hearing before this Court, this Court (Coram: D.A. Mehta, J.) has pointed out to the learned advocate for the respondent that, from the affidavit-in-reply the entire correspondence in the representation for review dated 7.1.2000 have not been taken into consideration by the authority concerned. When this was pointed out to the learned counsel for respondent No.1 she readily agreed and accepted that affidavit-in-reply pertained only to events upto 30.11.1999 and further correspondence including recommendation for review by the State Government alongwith the clarificatory certificate dated 10.12.1999 issued by the co-prisoner have not been taken into consideration by the authority. 3.10 In view of the same, this Court (Coram: D.A.Mehta,J.) on 8.2.2001 pleased to pass following order particularly para 6 reads as follows: "In view of the aforesaid fact situation this petition deserves to be allowed and the Union of India is hereby directed to reconsider the petitioner's case for pension under the Swatantra Sainik Samman Pension Scheme, 1980 in a favourable manner. Respondent No.1 is directed to decide the recommendation for review taking into consideration all the documents and correspondence produced both before and after the order dated 30.11.1999 and such decision should be arrived at as expeditiously as possible and in any case within four weeks from the date of the receipt of the writ of this Court or certified copy of this order, whichever is earlier. The order dated 30.11.1999 (Annex."D") passed by respondent no.1 is hereby quashed. In view of the fact that the representation for review had been forwarded through the State Government as far back as 7.1.2000 and yet respondent no.1 has not taken the same into consideration even at the stage of swearing the affidavit in reply in May, 2000, it is just and proper that respondent no.1 should be saddled with costs of this petition which are quantified at Rs.2,000/-. The costs shall be paid within a period of four weeks from the date of the receipt of certified copy of this order. Rule is made absolute in the aforesaid terms." 3.11 After the aforesaid order of this Court, the respondent No.1 has passed the order dated 30th March, 2001, and has rejected the claim vide communication dated 30.3.2001 on the ground that there is no specific date when petitioner was released from the prison. It has been further stated that though the State Government has recommended the case, it has been observed by the Central Government that, it is not obligatory to accept the recommendations of the State Govt. and this Ministry can differ with the recommendations of the State Govt. The Central Government also did not accept the certificate issued by Shri Naval Chand Nemi Chand Shah, Ex-Minister Gujarat, in which it was indicated that the petitioner was in jail from the period from 23.9.1942 to 24.9.1943. The certificate issued by Shri Becharbhai Virambhai Thakor has also not been considered as the same is not in the prescribed format. The jail certificate issued by Suptd. Ahmedabad Central Prison, Sabarmati also does not indicate the date of the release of the petitioner. 3.12 Being aggrieved and dissatisfied with the aforesaid action of the respondent No.1, the present petition was filed somewhere on 24th May, 2001, and this Court has issued notice on 29th May, 2001. 4. Shri J.S.Yadav, learned Addl.Standing Counsel appearing on behalf of respondent No.1-Union of India and Mr.H.C.Patel, learned AGP appearing on behalf of the respondent No.2. 5. The learned advocate for the petitioner has assailed the aforesaid order of the Central Government on various grounds. He has submitted that the decision of the respondent No.1 is prolonging simple case of the petitioner which could have been decided by the respondent No.1 because whatever the information is required by the respondent No.1 itself can verify the jail certificate and the detention order was passed under the Defence of India Rule 26V and the same authority was competent under the Act. The District Magistrate of Ahmedabad had passed the order of detention. It has been stated that all the relevant records which have been available with the petitioner has been supplied to the respondent No.1, however, the contention of the petitioner has been rejected by the Central Government only on technical grounds. The Central Government ought to have consider that when the Ex-Minister of Gujarat Shri Naval Chand Nemi Chand Shah has stated that the petitioner was in jail during the period from 23.9.1942 to 24.9.1943 and he has suffered during that period for more than six months imprisonment, inspite of the categorically affidavit by Ex-Minister of Gujarat State, the Central Government has unnecessary on technical ground rejected the claim of the petitioner that the petitioner has not specifically indicated the exact date of release. Therefore the contention taken by the Central Government that the petitioner has not indicated the exact date of release and even the jail certificate issued by Ahmedabad Prison does not indicate the date of release is an absolutely technical contention taken by the Central Government and the Central Government has not taken relevant factor and has taken into consideration the irrelevant factor in this behalf. The Central Government has not taken into consideration two further orders of this Court; one order passed by Justice M.S.Shah vide order dated 11th October, 1999 and another order passed by Justice D.A.Mehta vide order dated 8th February, 2001. Without considering these two decisions of the High Court, which is binding on the Central Government, the Central Government has passed the order. 5.1 Learned advocate for the petitioner has also relied upon the judgment of Hon'ble Supreme Court in the case of Narayanan Vs. Union of India reported in AIR 1990 SC 746. In para 10 the Hon'ble Supreme Court has observed as under: "The Scheme has been formulated with a view to acknowledge the services rendered to the country by patriotic citizens during the freedom movement and who had suffered at the hands of British Rulers in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country." 5.2 Learned advocate for the petitioner has also relied upon another judgment of the Apex Court in the case of Surja and others Vs. Union of India and another reported in (1991) 4 SCC 366. In para 7 on page 367 the Hon'ble Supreme Court has observed as under: "Freedom Fighters' Pension Scheme of 1972 was renamed as "Swatantra Sainik Samman Pension Scheme, 1980". The brochure published by the Union of India indicates: "A person who had suffered a minimum punishment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension." It has already been indicated that each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months. The petitioners' assertion that they did not claim remission has not been doubted or disputed. In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond six months remission had been granted and they were let off earlier would not take away their right to earn pension. Learned Attorney General appearing for the respondents has accepted this construction of the entitlement clause." 5.3 Learned advocate for the petitioner has relied upon the judgment of the Apex Court in the case of Mukund Lal Bhandari and others Vs. Union of India and others reported in AIR 1993 S.C. 2127, where the Division Bench of the Hon'ble Supreme Court in para 4 has observed as under: "As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly." "As regards the contention that the petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not justifiable. It is common knowledge that those who participated in the freedom struggle either at the national level or in the erstwhile Nizam State, are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural areas. What is more, almost all of them must have know grown pretty old, if they are alive. Where the freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it will behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. The Scheme has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. We are, therefore, of the view that whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit." 5.4 Learned advocate for the petitioner has invited my attention to the judgment of this Court in the case of Late Ambalal Ratnabhai Through his Widow Smt. Santokben Ambalal Vs. Government of India & Anr. reported in 1995(1) GLR 289, where the learned Single Judge has considered the entire scheme and in paragraphs 2,3 and 5 of the said judgment has been quoted with a view to see that the entire scheme of the Act can be understood, which reads as under: "para.2 In the year 1972, on the eve of the Silver Jubilee of the Independence Day, central scheme for grant of pension to freedom fighters and their families was introduced by the Government of India in the name of Freedom Fighters' Pension Scheme, 1972. This scheme commenced with effect from 15-8-1972 and provided for grant of pension to living freedom fighters and their families if they are no more and to the families of martyrs. The minimum pension sanctioned to the freedom fighters was Rs.200/per month and for their families varied from Rs.100/to Rs.200/- in accordance with the size and number of eligible dependants. The benefit of the Pension Scheme has been extended to all freedom fighters. The benefit of the scheme was available only to the persons whose annual income does not exceed Rs.5000/-. This scheme was liberalised with effect from 1-8-1980 and the benefit of the scheme was extended to all the freedom fighters as a token of `Samman'. Thus, the 1980 Pension Scheme is also known as `Samman Scheme'. "Para.3 The maximum quantum of pension was also increased from Rs.200/- to Rs.300/- for freedom fighters and the minimum was enhanced from Rs.100/- to Rs.200/- to widows of the late freedom fighters with an addition of Rs.50/- per months per each unmarried daughter with a maximum of Rs.300/- per month. Clause IV of the Scheme provides eligibility for the `Samman Pension' as under: (a) a person who has suffered minimum imprisonment of six months. In case of women and persons belongs to SC/ST categories, the actual period of imprisonment has been reduced to three months; (b) a person who has remained underground for more than six months provided he was a proclaimed offender or one whom against award for arrest/warrant was announced or one whose detention order was issued but not served; (c) a person interned in his home or externed from his District provided for the period of externment was not less than six months; (d) a person whose property was confiscated or attached and sold due to participation in the freedom struggle; (e) a person who became permanently incapacitated during the firing or lathicharge; (f) a person who lost his job from Central or State Government and thus means of livelihood is affected after participation in national movement. This scheme provides that person who considers thus eligible for `Samman Pension' under the scheme should apply in duplicate in the prescribed application form. Such application form is required to be accompanied by required documents as proof of claim of suffering. The second copy is required to be sent to the Deputy Secretary to the Government of India, Freedom Fighters' Division, Ministry of Home Affairs. Clause 9 provides the manner of proving the claim. In order to establish a claim on the ground of imprisonment/detention, a certificate from the concerned jail authorities, District Magistrate, or the State Government is required to be produced. However, in case of non-availability of such certificate of imprisonment or the detention can be established alternatively by a certificate of co-prisoners or certificate from sitting MP or MLA or from ex-MP or ex-MLA certifying the jail period. "Para.5 This scheme further provides that the claim of the applicant shall be scrutinised by the State Government in consultation with State Advisory Committee after receipt of the said verification and entitlement to pension report, the claim of the applicant is scrutinised and if found to be eligible, the pension is to be granted." The learned Single Judge after considering the Narayanan's case has observed in para 12 as under: "Thus, the object of the Scheme is to honour and wherever necessary, to mitigate the sufferings of those who had given their lives for the country in its hour of need. The spirit of the Scheme was thus to assist and honour the needy and acknowledge their sacrifice. It is not in dispute that though the petitioners were reinstated they were not paid salary for the period they lost their jobs. Thus, they lost their livelihood for participation in the National movement. It is further significant to notice that sub-clause(f) of the Scheme 1980 simply says `loss of job' and not `loss of permanent job'. The word `permanent' cannot be permitted to be read in sub-clause (f). A plain reading of sub-clause (f) with the objectives of the scheme only suggests that the persons who lost their jobs irrespective of the fact that they were reinstated later on, on account of their sufferings will be covered by sub-clause (f). If the