Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. CWP No. 2376 OF 2009. DATE OF DECISION: 7th July, 2011. Smt. Kalasi Devi …..Petitioner Versus Union of India and Another …..Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Vinay Kuthiala, Advocate. For the respondents: Mr. Atul Jhingon, Advocate, vice Ms. Shilpa Sood, Central Government Counsel for respondent No.1. Mr. A.K. Bansal, Addl. Advocate General for respondent No.2. Surinder Singh, J. (Oral): The present Writ Petition preferred under Article 226 of the Constitution of India by the petitioner, widow of late Sh. Laxman Ram, has sought mainly the following reliefs:- - 2 - “a) That the rejection letter (Annexure P-9), communicated by the respondent No.2 may kindly be quashed and petitioner’s husband be declared as a Freedom Fighter and thus he be held entitled to receive pension under the Swatantarta Sainani Samman Pension Scheme, 1980 and under the H.P. Swatantarta Sainani Samman Pension Scheme, 1985 from the date of his application. b) That respondents No.1 & 2 be directed to pay pension to the petitioner under the “Swatantarta Sainani Samman Pension Scheme, 1980”, from the date of his application alongwith arrears and interest at the rate of `9% per annum and the records pertaining to his case may kindly be summoned.” 2. The petitioner belongs to the erstwhile State of Bilaspur which merged into the State of Himachal Pradesh on and w.e.f. 12th October, 1948. The petitioner’s husband, Sh. Laxman Ram was a subject of the erstwhile Ruler of Bilaspur princely State. It is contended that before independence, ‘the Indian National Congress’ was fighting for the independence of the country - 3 - from ‘British rule’. Similar movements for the freedom of the country and for the merger of the princely States with the Indian Union were going on in almost all the States and Bilaspur was no exception. During that time, ‘the Praja Mandal Movement’ was being run by various ‘Praja Mandals’ which were affiliated to “All India States People Conference” a Central Organization, of which Pt. Jawahar Lal Nehru was the Chairman. The object of the ‘Praja Mandal Movement’ in various States was to achieve independence of the country and also to get the princely States merged in the Indian Union. It is alleged that the Raja of Bilaspur made all out efforts to suppress the movement by imprisoning and ordering externment and internment of the members who participated in Praja Mandal Movement. The Raja of Bilaspur was a despot in his own State. Because of his resistance for merging his State with the Indian Union, it got delayed and ultimately it was merged on 12th October, 1948. 3. It is alleged that said Sh. Laxman Ram actively participated in the Praja Mandal - 4 - Movement of Bilaspur State and faced the brunt of the Ruler of the State for his involvement in Satyagrah and other activities related to the merger of the State with the Indian Union. The ruler was known for issuing oral warrants of arrest. He also ordered for the arrest of Laxman Ram. But he was successful in evading the displeasure of the Ruler and went underground from the year 1946 up to October 1948 till the merger of Bilaspur State and suffered immensely during this period. During this period he also found his hide-out in District Sirmour. 4. Much after its independence, the Govt. of India promulgated a scheme known as ‘Freedom Fighter’s Pension Scheme, 1972’ which was further renamed as “Swatantarta Sainik Samman Pension Scheme” in the year 1980, which laid down the eligibility criteria and the mode of proof for getting the pension under the ‘Freedom Fighter’s Pension Scheme’ by the freedom fighters and after their death their spouses and unmarried daughters which inter-alia provides that those persons who went - 5 - underground or were interned in their homes or externed from the territory of the Ruler, were eligible to get this pension, if such internment and externment has been for a period of six months or more. Further, the respondent- State also promulgated a scheme for the grant of financial assistance to such ‘freedom fighters’ of the State and their wives which also provides the eligibility criteria for the financial assistance to the freedom fighters who had undergone imprisonment for a cumulative period of not less than two months, or were externed or remained underground for a cumulative period of not less than two months for participating in the National Movement for freedom. Under the State General the spouses of such freedom fighters are also eligible for financial assistance who are not receiving any pension from the Central Government under its own scheme. The persons who are eligible under the scheme for the financial assistance are required to apply in the prescribed format to the State Government for the said financial assistance and to the Central Government for the pension under - 6 - the Central Government Scheme with a documentary proof as provided in the scheme. 5. In the instant case, the petitioner applied for the pension under “Swatantarta Sainik Samman Pension Scheme” and appended the certificates issued by the freedom fighters who were already getting financial assistance from the Central Government/State Government and were declared as such and were getting the pension, which is a requirement under both the Central and State Schemes. 6. The petitioner applied for the pension through the State Government for getting financial assistance under the central scheme being widow of Laxman Ram. The State Government referred the case of the petitioner for such pension to the Central Government, which was declined vide its letter dated 31st August 2005 (Annexure P-9) for the reasons mentioned in Para- 3 as the official record was not produced and in reply, the Central Government also reiterated same reasons mentioned in the said letter. - 7 - 7. After hearing the learned counsel for the parties and on going through both the central and State schemes on record, at this stage when Shri Laxman Ram has died and widow, the petitioner is in the fag end of her life, she is not expected to keep any proof after such a long lapse of time. It is well settled that if primary proof is not available the claim of freedom fighter or their spouses or daughters who are unmarried, can be allowed on satisfactory secondary evidence. Their claim can not be rejected on the basis of delay or lack of written orders. Thus, the certificate of Ex-MLA and other prominent freedom fighters of the State with whom he came in contact and participated in freedom movement. These are considered sufficient to prove imprisonment, internment and externment etc. These certificates, if found genuine can not be rejected simply on the ground that there is no other documentary record supporting the application. 8. Further, after such a long time, it would not be possible either to the eligible person to - 8 - recollect the exact period of externment, internment or imprisonment but that by itself, would not be enough to reject the claim if, otherwise found genuine. These details can be found in the affidavit of the petitioner which could be verified with reference to the other documentary evidence furnished by her. 9. Had the respondents considered the documentary evidence produced by the petitioner in the context of her affidavit in consonance with the Scheme, they might have found it difficult to reject the claim of the petitioner, even in the instant case in view of the judgment of the apex Court in Mukand Lal Bhandari and others v. Union of India and others, [AIR, 1993, SC 2127]. The similar matter also came up for consideration before the Division Bench of this Court in CWP No.539/1990 Prabhu Ram Sharma v. Union of India and another decided on 29.12.1994 wherein the judgment of the apex Court in Mukand Lal’s case supra, was relied upon and the Court observed that if the claim requires proof in particular manner, i.e., furnishing of affidavit and - 9 - other corroboratory evidence as in the case in hand, the respondents are not entitled to require proof of the fact in any other manner. Thus, while allowing the petition held that the petitioner was able to prove his eligibility to the pension under the scheme by producing the documents as required under the said scheme. 10. In the instant case, admittedly, the petitioner did not apply for financial assistance under the State Scheme, therefore, the petitioner may apply under the said scheme i.e. Swatantrata Sainik Samman Scheme Rashi Yojna, 1985 aforesaid within a period of one month from today on the prescribed format supported by the requisite documents to the respondent-State for the said financial assistance under the said scheme. The respondent-State shall finalize the matter after due inquiry within a period of three months thereafter. If the petitioner is found eligible and entitled for the financial assistance under the said scheme, it be accorded to her from the date of her application and the respondent- State shall also forward the case of - 10 - the petitioner to respondent No.1 with its report, to consider the case of the petitioner under the Central Government Scheme, i.e. Swatantarta Sainik Samman Pension Scheme, 1980 for the financial assistance. Immediately, thereafter on the receipt of such recommendation, respondent No.1 shall finalize the matter within three months from the date of the receipt of the report of respondent No.2 State of H.P. on the basis of the provisions as contained in the Scheme and also in view of the observations made above and the judgment in Prabhu Ram Sharma’s case supra and also the judgment referred in CWP No.756/1995 Jeet Ram Vs. Union of India and others decided on 21. 09.1995, the copies whereof shall also be annexed by the petitioner with her application to the respondents. The reasons for not allowing the grant of S.S.S. pension by respondent No.1 as conveyed vide letter dated 31.08.2005 annexure P-9 in my opinion are not in consonance with the verdict of the above judicial pronouncements and also the spirit of the scheme, therefore, Annexure PA is hereby - 11 - quashed and set-aside. The respondent No.1 shall consider the case of the petitioner afresh in a time bound manner, as stated above, on being referred to it by the respondent State. The matter stands disposed of. No costs. 7th July, 2011. (Surinder Singh), k.sharma Judge.