1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4244/2008 Krishna S/o Vithalrao Kulkarni (Bhaggavkar), Age : 80 years, Occ-Nil, R/o 31, Vinayak Colony Vaijapur, Tq. Vaijapur, Dist.Aurangabad .. PETITIONER VERSUS 1] The Union of India through its Secretary Ministry of Home Affairs, Loknayak Bhavan, Khan Market New Delhi – 110 003 2] The State of Maharashtra through its Secretary, General Administration Department Mantralaya, Mumbai. ..RESPONDENTS .... Shri S.R.Barlinge,Advocate for petitioner 2 Shri Alok Sharma,Assistant Solicitor General for Union of India. .... CORAM : NARESH H.PATIL & N.D.DESHPANDE,JJ. JUDGMENT RESERVED ON : 15/04/2010 JUDGMENT PRONOUNCED ON :06/05/2010 ORDER : [PER DESHPANDE,J.] 1] By this petition, the petitioner viz. Krishna Kulkarni seeks to challenge order dated 1/9/2006 passed by respondent no.3 of rejection of his claim of Central Government pension for freedom fighters and direction to the respondents 1 and 3 to consider his claim for the pension w.e.f. 1984. 2] Heard both sides. The petitioner claims himself to be underground freedom fighter who actively participated in Hyderabad Mukti Sangram. He has received the freedom fighters pension from the State of Maharashtra from 1984 as underground freedom fighter. He therefore, contended that he is entitled to get pension from the Central Government under the Scheme called “Swatantra Sainik Pension Scheme, 1980” by the Ministry of Home Affairs, Government of India. 3] According to petitioner, his case needs to be recommended 3 and processed to the Union of India through State of Maharashtra-respondent no.2 as per the Rules. However, it remained pending for years together, so he was constrained to file Writ Petition No.2939/1998. Said Writ Petition was disposed of by this Court by order dated 1/4/1999 with direction to the respondent no.2 State Government to consider the case of the petitioner on its merit and forward it to the Union of India, if found valid to consider the claim. 4] It is undisputed that respondent no.2 State of Maharashtra forwarded the proposal of the petitioner to the respondent no.1 on or about 8/8/2000 and the petitioner submitted his application in prescribed form to the Ministry of Home Affairs for sanctioning the Swatantra Sainik Sangram Pension, alongwith affidavits of 2 freedom fighters viz. Shri Premraj Uttamchand Changedia and Shri Nivrutti Dadarao Raut, in support of his claim as underground freedom fighter. He also submitted a certificate about non availability of record (NARC) amongst other necessary documents and the report of Vaijapur police station of the relevant period of 1946 to 1948 when he worked as underground freedom fighter. According to petitioner, he complied with all the requirements as per the Rules. 5] The main grievance of the petitioner is that despite his compliance, the respondent no.3, who was incharge of the freedom fighters cell of the Central Government did not consider his claim and the same was rejected on technical ground stating 4 that the NARC issued by the police station is not acceptable and it should have been issued by the State Government. The said rejection was communicated to the petitioner vide communication dated 10/11/2004 and the same is impugned in this Petition. 6] Shri Barlinge, learned counsel for petitioner relied upon judgment of Apex Court reported in AIR 1978 S.C.C. 851 Mohinder Singh Gill and Anr V/s The Chief Election Commissioner, New Delhi and others. It is urged that power of the judicial review is limited only when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds lateron brought out. He therefore, urged that respondents cannot raise any additional grounds in their affidavits and in the course of hearing to challenge the eligibility of the petitioner. According to petitioner, the scope of hearing of the Petition should be limited to consider NARC of local police station as sufficient compliance for grant of Samman Pension. 7] Perused the affidavit in reply filed on behalf of respondents 1 and 3. The respondents contended that only such freedom fighters are eligible who fulfill conditions of the Scheme by furnishing the proof. According to respondents, petitioner did not fulfil the eligibility criteria. Admittedly, he had not suffered 5 minimum imprisonment of 6 months and there is no documentary evidence viz. imprisonment/detention certificate from the concerned jail authority, District Magistrate or State Government indicating the period of sentence awarded etc. There is no NARC from the concerned State filed alongwith 2 co-prisoners ceretificates from the freedom fighters who proved jail sufferings of minimum 1 year and who were with the applicant in the jail. A person must have been underground in connection with the freedom struggle for atleast 6 months for getting Samman Pension on furnishing specified evidence. 8] Shri Alok Sharma, learned Assistant Solicitor General for respondent no.1 pointed out from record that the Personal Knowledge Certificate (PKC) of S/Shri Changedia and Raut are not acceptable as the certifiers have not furnished any record/evidence of their own two year’s jail sufferings i.e. they have furnished no record/evidence to establish that they are eligible certifiers and hence their recommendations or the affidavits would not help the petitioner to establish his claim in the absence of other documentary proof and merely the NARC of the police station would not be enough. 9] In the light of the affidavit submitted as per the requirement, we examined the petitioner’s claim as an underground freedom fighter. There is no evidence or document to show that the petitioner was proclaimed offender or was wanted or in detention. We have minutely examined the affidavits of 2 freedom fighters- 6 the awardees of the Central Government Pension Scheme viz. Shri Premraj Uttamchand Changedia and Shri Nivrutti Dadarao Raut. However, they do not satisfy the conditions as sufficiently qualifying to recommend the petitioner’s case as underground freedom fighter. We have also gone through the record. Nowhere it is stated during what period the petitioner was an underground freedom fighter and was under the apprehension of a warrant of arrest etc. Thus the petition is devoid of any substance. As such, no interference is called for. Petition is dismissed with no order as to costs. [N.D.DESHPANDE,J.] [NARESH H.PATIL,J.] umg/wp4244-08