IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1880 of 2010 1. NAVIN KUMAR S/O LATE KISHORI LALL R/O BAKSHI MOHALLA, P.O. PATNA CITY, P.S. KHAJEKALAN, NEAR PADARI KI HAVELI, PATNA CITY, DISTT. PATNA 2. CHANDRA SHEKHAR PRASAD S/O LATE KISHORI LALL R/O BAKSHI MOHALLA, P.O. PATNA CITY, P.S. KHAJEKALAN, NEAR PADARI KI HAVELI, PATNA CITY, DISTT. PATNA 3. RAJA BARDHAN KUMAR S/O LATE KISHORI LALL R/O BAKSHI MOHALLA, P.O. PATNA CITY, P.S. KHAJEKALAN, NEAR PADARI KI HAVELI, PATNA CITY, DISTT. PATNA 4. KALYANI KUMERI @ BULBUL D/O LATE KISHORI LALL, W/O JAY PRAKASH R/O VILL- BARH, P.O. BARH, P.S. BARH, DISTT. PATNA Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-3 2. THE JOINT SECRETARY GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-3 3. THE UNDER SECRETARY GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-3 4. THE STATE OF BIHAR THROUGH THE SECRETARY DEPTT. OF HOME (SPECIAL), BIHAR, PATNA 5. THE UNDER SECRETARY GOVT. OF BIHAR, DEPTT. OF HOME (SPECIAL), FREEDOM FIGHTER SECTION, BIHAR, PATNA 6. THE DISTRICT MAGISTRATE PATNA 7. THE JAIL SUPERINTENDENT SUB JAIL, BARH, PATNA 8. THE JAIL SUPERINTENDENT BEUR CENTRAL JAIL, BEUR, PATNA ----------- For the Petitioners:- Mr. Chitranjan Sinha, Sr. Adv. For the Union of India:- Mr. Gopesh Kr. C.G.C. (Respondent nos. 1 to 3) For the State of Bihar:- Mr. Shushankar Sharma, AC to GP-11 (Respondent Nos. 4 to 8) ------------- 2. 08.04.2011 Heard learned counsel for the petitioners and the Union of India. The petitioners are the sons of Late Kishori Lall seeking the arrears of his Freedom Fighters Samman Pension which should have been given to the deceased in 2 his lifetime and thereafter to his widow in accordance with the policy. They are aggrieved by the final order dated 23.9.2009, rejecting the claim passed by the Union of India. Learned counsel for the petitioners submits that their father was deceased in 1994 while his application was pending consideration. It was rejected on 2.4.2002. The widow of the deceased preferred C.W.J.C. No. 9440 of 2001. A Bench of this Court by order dated 10.9.2001 disposed the application with directions to take a final decision satisfied that the matter was still pending consideration. The claim was again rejected by order dated 2.4.2002, on the ground that the deceased was a minor (between 12 to 13 years) at the relevant time. It was not conceivable that he may have participated in the freedom struggle movement. The mother of the petitioners then filed C.W.J.C. No. 5760 of 2003, in which the petitioners were substituted after her death on 13.11.2007. A Bench of this Court on 2.2.2009, noticed that no order was produced that minors were not entitled for grant of pension under the freedom fighter scheme and remitted the matter back to the Government of India. That has been rejected again by the impugned order which is stated to be a reiteration of what was not accepted by this Court in C.W.J.C. No. 5760 of 2003. Any subsequent decision on 5.10.2009, debarring persons below 15 years of age from consideration cannot be 3 given retrospective effect. Counsel for the Union of India submitted that the authorities were satisfied that because of his tender age, the father of the deceased could not have participated in the freedom struggle. The ground cannot be stated to be vague, arbitrary or fanciful so as to make the decision of the respondents unsustainable. The grant of pension was subject to fulfillment of conditions under the scheme. The respondents have taken a policy decision on 5.10.2009 that persons below 15 years of age could not be considered for grant of pension on any contention of having participated in the freedom movement. The Union of India formulated a scheme known as the Freedom Fighter Samman Pension Scheme, 1980 replacing the earlier scheme of 15.8.1972. It lays down who is eligible, what are the conditions of eligibility including the procedure for consideration of application and the nature of evidence etc. This pension was unique in its nature and meant to recognize the sacrifices made by certain individuals for a better tomorrow of the nation. There can be no vested right in a person to claim pension under the scheme unless he fulfills the condition of eligibility. A grant of pension consequent to satisfactory service and a pension of the present nature stand on an entirely different footing. There may be a vested statutory right to the latter forming a 4 part of his estate. No such legal status attaches to the former. The pension of the present nature was a cause of action personal to the deceased. After his death the cause of action no more survives. It was not a pension given in lieu of satisfactory service. In the later event, pension may not be bounty but a matter of right. The present scheme does not classify in that category. The widow of the deceased may have had a claim to the extent that the policy may have provided for the benefits to enure for her benefit during her lifetime if it had been granted to the original freedom fighter in his life time. But in a case where the original freedom fighter claimant himself was not granted the pension, this Court has serious reservations if a claim would lie at the behest of his widow. Even if it were to be so it shall stand extinguished with her demise creating no claim in the legal heirs as an estate of the deceased freedom fighter. Whether a person below 15 years of age could participate in a freedom struggle or not is a matter more appropriately for the authorities to determine and decide on the eligibility for pension. This is not a statutory but a subjective administrative decision. If two views are possible, that a person could participate below 15 years of age and that a person could not participate below 15 years of age, merely because a different view can be taken by the Court 5 may not be sufficient justification for the Court to interfere with the decision dated 5.10.2009, unless the Court finds that the decision taken by the respondents and the reasoning given by them are arbitrary, fanciful and which no reasonable person could take. The Court does not hold it to be so. The freedom fighter pension having been held not to be a bounty and a matter of right that it never came to be granted to the original deceased in his life time or the widow, the Court finds it difficult to hold as urged on behalf of the petitioners that the decision dated 5.10.2009, has to be read prospective meaning thereby that in absence of any regulatory condition before that day, the petitioners as the legal heirs are entitled to entire arrears of the pension as a matter of right. The Court finds no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)