IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1197 of 2011 AKHILESH NARAYAN SINGH @ AKHILESH NARAYAN SINHA . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioner: Mr. Shailesh Kumar, Advocate For the State : Mr. Sanjay Kumar, AC to GA 6 For Union of India: Md. Nadeem Seraj, CGC ------- 2. 14.02.2011 Heard learned Counsel for the petitioner, for the State and for the Union of India. The petitioner was sanctioned Freedom Fighters Pension by order dated 14.5.1999 with effect from 6.2.1998. Thereafter a show cause notice was issued to him by the District Magistrate in context of “the discrepancy in his date of birth and consequent sanction of Freedom Fighters Pension by furnishing forged and false certificate”, as mentioned in the notice. The petitioner came to this Court in CWJC No. 12655 of 2000 questioning the same. The writ petition was permitted to be withdrawn to file his reply to the show cause notice. Thereafter final orders were passed by the District Magistrate on 13.10.2000 recommending to the Union of India for cancellation of the Freedom Fighters Pension. That culminated in the final order dated 2.11.2010 by the Union of India in the Ministry of Home Affairs. Learned Counsel for the petitioner submitted that Freedom Fighters Pension was granted after full enquiry and satisfaction. The controversy in the date of birth vacillates between the date 1.2.1931 and 1.2.1934. The factual foundation on which the application was made has not been suspected in the show cause notice. There was no age limit mentioned in the regulations to debar the petitioner if he was at the age of 11 years or 8 years from the benefits. The date of birth 1.2.1931 was explicitly mentioned in the Freedom Fighters Pension Book. The order of the District Magistrate dated 13.10.2000 takes into 2 consideration extraneous materials with regard to the alleged continuance by the petitioner in service for a longer duration by representing his date of birth incorrectly. Assailing the final order dated 2.11.2010 it was submitted that the grounds mentioned in Paragraphs 11 & 14 of the same are beyond the show cause notice. That per se vititiates the final order. Counsel for the Union of India emphasized that the order granting Freedom Fighters Pension itself states that the petitioner was being given the benefit of doubt on basis of the materials produced by him. That necessarily conceives that certain aspects with regard to eligibility remained in the gray area and no finality was attached in the enquiry upon those aspects. It is reiterated that it is highly unlikely that the petitioner was involved in the freedom struggle at the tender age of 8 years or 11 years. Once the discrepancy between the date of birth as 1.2.1931 and 1.2.1934 are admitted by the petitioner in his reply to the District Magistrate, the order cannot be said to be arbitrary, warranting interference by the writ Court. The grant of Freedom Fighters Pension is not a matter of right but is a privilege conferred on those who underwent the rigors of the freedom struggle to give the country a better tomorrow. It is a scheme formulated to honor such persons who gave their contribution to the creation of a new State and Society. Being an exceptional scheme, peculiar in its nature, quite obviously when a judicial review of the same arises, the scrutiny shall be strict to ensure that one genuine Freedom Fighters is not deprived of his claim but simultaneously those who may not be eligible are not permitted to avail the benefit. The very order granting Freedom Fighters Pension to the petitioner states that he was being given benefit of doubt. On a reading 3 simplicitor of the words Counsel for the Union of India is correct that certain enquiry remained in the gray area and there was no positive satisfaction. If the materials in the gray area surfaced subsequently they can certainly be a matter for enquiry and if confirmed pension can be stopped To that extent this Court finds no error in the show cause given to the petitioner. It remains a question of fact whether persons at the tender age of 8-11 years have participated in the freedom struggle, gone underground etc., as the petitioner claims. It appears from the order of the District Magistrate and the authorities of the Union of India that no specific age limit has been prescribed in the circular regulating Freedom Fighters Pension. Therefore it shall remain a matter within the discretion of the authorities based on contemporaneous materials that may be available with them whether persons at this tender age did or did not participate in the freedom struggle. The Court at this stage refrains from discussing this issue further unless and until a reasoned order is passed and the question of judicial review may or may not arise. If no pension has been granted to any others on basis of participation at this tender age, the Union of India may or may not be entitled to arrive at its own conclusion. But, if it has been granted different questions may arise. Learned Counsel for the petitioner appears correct in his submission that paragraphs 11 and 14 which questions his very eligibility for grant of Freedom Fighters Pension go beyond the show cause notice issued by the District Magistrate. The show cause notice dated 4.7.2000 is confined to the issue of date of birth and that at the tender age of 8 years he could not have participated in the freedom struggle. The recommendation of the District Magistrate takes into consideration extraneous materials when it 4 decides the issue that the petitioner has wrongfully continued in government service for three extra years and was liable to be proceeded with departmentally appropriately. To this Court that also vitiates the recommendation of the District Magistrate. But, in the nature of the scheme of Freedom Fighters Pension as discussed above, that certain queries remained unanswered and when he was given benefit of doubt and pension sanctioned, the grounds mentioned in paragraphs 11 and 14 of the final order dated 2.11.2010 cannot be said to be frivolous, completely devoid of reasoning, for this Court to hold that because the final order goes beyond the show cause notice it was perverse and arbitrary to allow the writ application on that ground. The Court is satisfied that the recitals in paragraphs 11 & 14 are materials with which the petitioner should have been confronted first with an opportunity to reply and whereafter final orders could have been passed. If the Freedom Fighters Pension was granted without verification of the original documents on basis of photo copies only, when the circular dated 6.8.1980 read with 17.8.1981 appears to be requiring certain additional features and enquiry from those who claim the benefits of pension for being underground and which appears to be case of the petitioner presently this Court is not persuaded to set aside the impugned order so as to allow the petitioner revival of his Freedom Fighters Pension. The Court is satisfied that the two paragraphs, 11 and 14, raise serious issues which are required to be made known to the petitioner with an opportunity to rebut, apart from other grounds mentioned therein. It shall be open for the petitioner, if so advised to supplement and satisfy the authorities that he also fulfils all conditions as specified in the aforesaid two circulars dated 6.8.1980 and 17.8.1981 5 with regard to those who have gone underground, that he has submitted documents in support of the same to their satisfaction and only thereafter the order granting Freedom Fighters Pension was passed. The order dated 2.11.2010 is set aside. It is unfortunate that on the previous occasion the authorities took nearly ten years from the date of recommendation of the District Magistrate to pass final orders. The grounds mentioned in paragraphs 11, 12 & 14 shall be deemed to be a show cause to the petitioner. The petitioner may file his reply to the same before the Union of India. Let final orders by the Union of India be then passed within a maximum period of three months from the date of receipt and/or presentation of a copy of this order. It shall be for the Union of India to seek any clarification from the petitioner on the cause shown, if it deems necessary. The writ application stands allowed but only to the extent indicated above. Snkumar/- (Navin Sinha,J.)