HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.19242 of 2005 Date : 27.08.2009 Between : Smt.Nallapu Butchamma. …..Petitioner And Under Secretary/Deputy Secretary to the Government of India, Ministry of Home Affairs & 3 others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.19242 of 2005 ORDER : In this writ petition, the petitioner, who is the widow of a freedom fighter by name Nallapu Sattaiah, seeks directions by way of Mandamus, to pay dependant's freedom fighters pension under 'Swatantrata Sainik Sanman Pension Scheme, 1980', by setting aside the rejection proceedings, dated 31st of March 2003, issued in Letter No.112/2092/72-FF(HC)PT.(A), by the 1st respondent. 2. The husband of the petitioner, during his life time, made an application for sanction of freedom fighters pension under Swatantrata Sainik Sanman Pension Scheme, 1980. As per the said scheme notified by the Central Government, a freedom fighter, who fulfill the conditions specified under the scheme, is entitled for pension. It is also not in dispute that a dependant of the freedom fighter is also entitled for such pension. As per the scheme, one who has undergone imprisonment for a period of six months during the freedom struggle, is eligible for grant of pension. In this case, the Late husband of the petitioner, claiming that he was imprisoned in the freedom struggle for more than six months, applied for grant of pension. As per the scheme, on filing such application claiming pension, a report is to be called for from the State Government/Union Territory. In the present case, in support of the claim of the petitioner with regard to imprisonment of her Late husband, she has filed a certificate issued by the Superintendent, Central Prison, Warangal. A copy of such certificate is made available in the material papers, issuance of which, is not in dispute. As per the recitals of the said certificate, Nallapu Sattaiah S/o.Sheshaiah, who is the Late husband of the petitioner, was admitted in Jail as an undertrial prisoner on 18.11.1356 Fasli, vide Jail No.432. His release particulars are not available on the records. Again, he was admitted in the Jail as an undertrial prisoner on 06.04.1357 Fasli, under Section 15/55 of Security Act as per the orders of Munsiff Court, Warangal, vide No.891, and he was released on 15.09.1357 Fasli. 3. On filing of an application by the Late husband of the petitioner for grant of freedom fighters pension, the Government of India has addressed the State Government, calling for verification report. The verification report was sent by the 2nd respondent-State Government, which was addressed to the Deputy Secretary to Government of India, Ministry of Home Affairs, vide letter No.85130/FF.I/A1/94-1, dated 17.10.1995. In its report, the State Government has taken into account the period of detention of the Late husband of the petitioner only for the period from 06.04.1357 Fasli to 15.09.1357 Fasli, and recorded a finding that the husband of the petitioner was in custody for a period of 5 months 15 days. As the release particulars with reference to his admission into jail on 18.11.1356 Fasli are not available, the said period was not taken into consideration. In view of the findings recorded by the State Government, the husband of the petitioner was not given the benefit of pension during his life time. After the demise of the husband of the petitioner, the petitioner has been making representations from time to time for grant of pension. A copy of one such representation is dated 02.07.2001. In the said representation, the petitioner had specifically brought to the notice of the respondent-authorities that the period pursuant to admission of her husband to jail on 18.11.1356 Fasli, was not taken into consideration inspite of the fact that such admission into jail is not in dispute. When it was stated that release particulars of petitioner's husband with reference to admission to jail on 18.11.1356 Fasli were not available, the petitioner has filed a certification from a co-prisoner, by name, Sri Gangaraboina Komuraiah S/o.Chandraiah, stating that after the admission of petitioner's husband into prison on 18.11.1356 Fasli, he was in prison for a period of 37 days. In the representation, it is specifically stated that if that period is taken into consideration, the husband of the petitioner has fulfilled the eligibility criteria for grant of pension and requested to reconsider the same. Inspite of such specific representations, lastly, by impugned letter, dated 31st of March 2003, the claim of the petitioner is rejected, stating that as per verification report No.85130/FF.I/A1/94-1, dated 17.10.1995, sent by the 2nd respondent-State Government, as her husband was imprisoned for less than six months, as such, petitioner is not eligible for grant of pension as per Swatantrata Sainik Sanman Pension Scheme, 1980. 4. Heard learned counsel for petitioner Sri Challa Siva Sankar and the learned Government Pleader appearing for the 2nd respondent and also the learned Assistant Solicitor General, appearing for the 1st respondent. 5. It is contended by the learned counsel for petitioner that there is no reason or justification for rejecting the claim of the petitioner for grant of pension as per the scheme. It is submitted that though the Late husband of petitioner was imprisoned for more than six months during the freedom struggle, only on the ground that the release particulars of the freedom fighter were not available in the jail records with reference to his admission into jail on 18.11.1356 Fasli, the claim is rejected on the ground that the record discloses imprisonment only for a period of 5 months 15 days, whereas the requirement is six months. It is submitted that the admission of petitioner’s Late husband in jail on 18.11.1356 Fasli, and his imprisonment for a period of 37 days, which is evident from the certification by the co-prisoner, has not been considered and the claim of the petitioner is mechanically rejected by the 1st respondent-Central Government, based on the report of the 2nd respondent-State Government. It is submitted that from a perusal of the certification issued by the Superintendent of Central Prison, Warangal, it is clear that the husband of the petitioner was imprisoned for more than six months. 6. On the other hand, it is argued by the learned Government Pleader appearing for the 2nd respondent- State Government that though the admission of the freedom fighter at first instance into jail on 18.11.1356 Fasli is not in dispute, as his release particulars are not available, it is not possible to record a finding that he was imprisoned for more than six months. It is submitted that by referring to the particulars of imprisonment in detail, a report was sent on 17.10.1995. Further, it is submitted by the learned Assistant Solicitor General appearing for respondent No.1-Central Government that as per the Scheme, those who were imprisoned for a period of six months alone are eligible for pension, but as per the findings recorded by the 2nd respondent-State Government, as the imprisonment is for less than six months i.e. only for 5 months 15 days, as certified by the Superintendent of Central Prison, Warangal, neither the freedom fighter nor the petitioner is eligible for grant of pension under the scheme. 7. I have perused the certificate issued by the Superintendent of Central Prison, Warangal and also the report sent by the State Government to the Union of India. In the certificate issued by the Superintendent of Central Prison, Warangal, he has certified that the petitioner was admitted into prison at first instance on 18.11.1356 Fasli vide Jail No.432, but on the ground that his release particulars are not available, the benefit of imprisonment after 18.11.1356 Fasli is not extended. In the same certificate, it is further certified that the Late husband of the petitioner was in imprisonment for the period from 06.04.1357 Fasli to 15.09.1357 Fasli. In the report sent by the 2nd respondent-State Government, dated 17.10.1995, referring to the report of the District Collector, it is stated that the petitioner was in custody from 06.04.1357 Fasli to 15.09.1357 Fasli i.e. for a period of 5 months 15 days. At this stage, it is to be noticed that though the admission of the freedom fighter into jail on 18.11.1356 Fasli is not in dispute, but his imprisonment thereafter is not given benefit of, mainly for the reason that his release particulars are not available. The Home Department of Government of India has notified the salient features of Swatantrata Sainik Sanman Pension Scheme, 1980, and as per the scheme, if the records of the relevant period are not available, 'Non-availability of Record' Certificate in the concerned State Government/Union Territory is to be issued and a certificate from a freedom fighter who has proven jail suffering also can be considered for grant of pension. In the case on hand, after the demise of the freedom fighter, in the representation filed by the petitioner on 02.07.2001, she has also requested to consider the co-prisoner's certificate given by one Sri Gangaraboina Komuraiah, who has certified that the husband of the petitioner has undergone 37 days of imprisonment pursuant to his admission into jail on 18.11.1356 Fasli. Further, with regard to non-availability of particulars of release with reference to admission of the freedom fighter into jail on 18.11.1356 Fasli, it is categorically stated that the jail records during the relevant period were verified with the help of Urdu known staff member and that the date of admission of Nallapu Sattaiah (husband of the petitioner) was 18.11.1356 Fasli, but his release particulars are not available in the records. In view of the specific stand of the 2nd respondent-State Government, the admission of Late husband of the petitioner into jail on 18.11.1356 Fasli is not disputed, but as his release particulars are not available, the respondents ought to have considered the certification made by the co-prisoner. Unfortunately, inspite of a specific representation by the petitioner, who is a widow of the freedom fighter, the same has not been considered at all, though the scheme permits consideration of such certification in cases, where documents are not available on record. Therefore, it is evidently a fit case for reconsideration of the claim of the petitioner . 8. For the aforesaid reasons, the impugned rejection proceedings, dated 31st of March 2003, issued in Letter No.112/2092/72-FF(HC)PT.(A), by the 1st respondent- Central Government, are hereby quashed. Consequently, there shall be a direction to the 2nd respondent-State Government to send “Non-availability of Record” certificate with regard to the release particulars of the petitioner's husband with reference to his arrest in freedom movement on 18.11.1356 Fasli, within a period of six weeks from the date of receipt of a copy of this order. On such certification by the 2nd respondent, the 1st respondent is directed to consider the matter afresh, taking into account the personal knowledge certificate filed by the petitioner, which was issued by a co-prisoner by name Sri Gangaraboina Komuraiah, which is required to be considered as per the conditions notified in Swatantrata Sainik Sanman Pension Scheme, 1980. As much as the claim of the petitioner is a long pending one, the 1st respondent shall consider and pass appropriate as expeditiously as possible, preferably within a period of three months from the date of receipt of report from the 2nd respondent. 9. The writ petition is allowed subject to the directions referred above. No order as to costs. ______________________ R. SUBHASH REDDY, J 27th August 2009 ajr