THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.3028 of 2003 March 04, 2011 Between: P.Kameswara Sarma, S/o.Late P.Kameswara Sarma ... Petitioner And The Government of India, represented by its Secretary, Ministry of Home Affairs, Lok Nayak Bhavan, Khan Market, New Delhi And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.3028 of 2003 ORDER: The petitioner is the son of late Kameswara Sarma. The father allegedly participated in the Non-cooperation Movement pursuant to the call given by Mahatma Gandhi during 1930. It appears, late Sarma had applied for Freedom Fighters Pension under Swatantra Sainik Samman Scheme, 1980 (the Pension Scheme). After death of the father, the petitioner made application. By an order dated 07.3.2002, the first respondent rejected the request on the ground that the sons are not eligible for pension. Assailing the said communication, the petitioner filed the instant writ petition. The matter was listed before the Hon’ble the Chief Justice on 10.10.2006. The Central Government informed the Court that the request of late Sarma for pension had already been rejected vide communication dated 13.4.1992. This Court then granted time for amending the writ petition. Again when the matter came before this Court, on 27.1.2011, the Court pointed out that amendment application has not been filed. The petitioner sought time. Subsequently, W.P.M.P.No.2505 of 2011 was filed challenging the Order No.112/190/89-FF/SZ, dated 13.4.1992. As this Court itself earlier permitted for amendment of this writ petition, the application was ordered and the writ petition was taken up for hearing. The Government of India introduced Central Scheme with effect from 15.8.1972 for grant of pension to freedom fighters and their eligible dependents. As per the Central Scheme the pension was payable only to those persons who are in financial need subject to annual income ceiling of Rs.5,000/-. With effect from 01.8.1980 a liberalized and renamed scheme, Swatantra Sainik Samman Scheme (the Pension Scheme) came into effect. As per the Pension Scheme, all persons who participated in the freedom movement and who suffered minimum imprisonment of six months (three months in case of women of persons SC/ST), are eligible. For the purpose of grant of pension, mother, father, widower/widow and unmarried daughters are made eligible. As per paragraph 8 of the Pension Scheme, the last date for applying for the benefit is 31.3.1982. The Scheme also prescribes procedure for conducting enquiry and certification/recommendation by the State Government. It is the case of the petitioner that his father applied to the second respondent allegedly on 14.5.1981. The same was enquired into by the third respondent. The petitioner came to the Court on a misconception that though the third respondent made recommendation for grant of pension, the first respondent rejected the same on 07.3.2002. It now transpires (as seen from the counter affidavit filed by the first respondent) that the second respondent recommended for grant of pension stating that during 1942-46, late Sarma met with underground suffering. As there was no documentary evidence, the first respondent came to the conclusion that the claim of underground suffering to be voluntarily in nature and not against any executive action. Therefore by letter dated 13.4.1992, the claim was rejected. Again when the petitioner applied, by communication dated 07.3.2002 the claim was rejected as sons are not eligible for grant of pension. The Counsel for the petitioner submits that the application made by late Sarma was thoroughly enquired by the third respondent who submitted the report to the second respondent. When the second respondent submitted recommendation, the first respondent ought to have granted pension. Rejection for grant of pension is, therefore, arbitrary and illegal. Secondly, he submits that the petitioner’s father died on 20.5.2000. If the pension is sanctioned, the petitioner’s legal heir is entitled to receive the same although the petitioner is not treated as dependent under the Pension Scheme. Per contra, the Additional Central Government Standing Counsel refused the contentions. The record reveals that late Kameswara Sarma sent application on 10.5.1981 to the Central Government. The same was forwarded by them vide communication No.112/190/89-FF.SZ, dated 26.10.1989 to the second respondent. The communication reads as under. No.112/190/89-FF.SZ Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya New Delhi New Delhi, the _________________ To The Secretary to the Government of Andhra Pradesh Revenue (FF) Department, Hyderabad. Sub: Grant of Swatantrata Sainik Samman Pension from Central revenues effective from 1.8.1980. Sir, I am directed to say that Shri Peri Kameswara Sharma, S/o.Sundanna, V/o.Pedapuram, Vakil’ Street, Door No.9-1-27, Peddapuram Taluk, East Godavari – has applied for grant of pension under the liberalized pension scheme 1980. He has claimed underground/jail imprisonment suffering. He might have applied to the State Government within the prescribed last date for submission of applications i.e., 31.3.1982. It is, therefore, requested that the suffering of the freedom fighter may be verified on from the official records and a report in this connection with your specific recommendation may be furnished to this Ministry at an early date to process the case further. Yours faithfully Sd/- xx (K.L.Malhotra) For Deputy Secretary to Govt. of India. Copy to: Shri Peri Kameswara Sharma, S/o.Sundanna, V/o.Pedapuram, Vakil’ Street, Door No.9-1-27, Peddapuram Taluk, East Godavari, Andhra Pradesh. After receiving the same, the second respondent got the same enquired into by the third respondent. After enquiry, the third respondent submitted a report dated 02.1.1981. Based on the same, by letter No.89176/FF/A2/89-2, dated 02.9.1991, the second respondent recommended the case of late Kameswara Sarma and four others. The relevant portion from the said letter reads as under. The Collector, East Godavari District in his letter 3rd cited has reported that the matter has been got enquired into by the Revenue Divisional Officer, Amalapuram who reported that all the individuals have not produced documentary evidence in support of their participation in freedom movement. He has however recommended the cases of following five individuals only stating that they have participated in National Movement during the years 1942-46 and suffered under ground sufferings. These individuals have produced documentary evidence in support of their claim. 1. Sri Bandaru Ammannanaidu, S/o.Gangaraju 2. Sri Saldi Satyanarayana Murthy, S/o.Gangaraju 3. Sri Surabanetla Suryanarayana, S/o.Bapanna 4. Sri Kotla Krishna Murthy, S/o.Venkataswamy 5. Sri P.Kameswara Sarma, S/o.Sundanna The Collector, East Godavari has rejected nine cases of the individuals for want of documentary evidence. Action is being taken separately to inform the individuals under intimation to Government of India in respect of 9 rejected cases. The State Government however recommended the cases of Sri Bandari Ammannanaidu, S/o.Gangaraju, Sri Saladi Satyanarayana Murthy, S/o.Gangaraju, Sri Surebahatla Suryanarayana, S/o.Bapanna, Sri Kotla Krishna Murthy, S/o.Venkataswamy and Sri P.Kameswara Sarma, S/o.Sunanda, for grant of Freedom Fighters Pension under Central Scheme. The letter of the second respondent also refers to various documents which were sent by District Collector along with the report. Be that as it is, after considering the report, the first respondent rejected the application for grant of pension by communicated dated 13.4.1922, which reads as under. No.112/190/89-FF.SZ Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya New Delhi Issued seal 13April 1992 To Shri Peri Kameswara Sarma, S/o.Sundanna, Vakil’s Street, Door No.9-1-27, Peddapuram-533437, East Godavari District., Andhra Pradesh. Sub: Swatantrata Sainik Samman Pension Scheme, 1980. Sir, I am directed to refer to your application dt.10.5.1981 on the subject mentioned above and to say that your case has been examined carefully but it has not been found possible to consider for grant of Samman Pension and rejected for the following reasons: 1. Your application was received after the prescribed date fixed for receipt of such applications i.e., after 31.3.1981. 2. Your suffering under the Police custody is less than the required minimum period of six months. Yours faithfully Sd/- xx (B.L.Azad) For Under Secretary to Govt. of India. Copy forwarded for information to: The Secretary, Govt. of A.P., Revenue (FF) Department, Hyderabad, with reference to their letter No.89/76/FF/A2/ 89-2, dated 02.9.1991. The two reasons for rejection are that, late Sarma did not quality under the pension scheme and his suffering in Police custody less than the period prescribed, and the other ground is the application was received after the prescribed date. Both these grounds cannot be treated as arbitrary. Paragraph 4 of the pension scheme reads as under. Who are eligible dependents? For the purpose of grant of Samman pension, family, father, widower/widow if he/she ha not since remarried, unmarried daughter. Not more than one eligible dependent can be granted pension and in the event of availability of more than one dependent the sequence of eligibility will be widow/widower, unmarried daughters, mother and father. Who is eligible? For the purpose of grant of samman pension under the scheme, a freedom fighter is:- (a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. (b) The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1980. EXPLANATION 1. Detention under the orders of the competent authority will be considered as imprisonment. 2. Period of normal remission upto one month will be treated as part of actual imprisonment. 3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered. 4. Broken period of imprisonment will be totaled up for computing the qualifying period. (b) A person who remained underground for more than six months provided he was: 1. A proclaimed offender; or 2. One on whom an award for arrest/head was announced; or 3. One for whose detention order was issued but not served. (c) property was confiscated or attached and sold due to A person interned in his home or externed from his district provided the period of internment/externment was six months or more. (d) A person whose participation in the freedom struggle. (e) A person who became permanently incapacitated during firing or lathi charge. (f) A person who lost his job (central or state Government) and thus means of livelihood for participation in national movement. A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British. A plain reading of the above eligibility criteria shows that to be eligible for pension under the Pension Scheme, a person had been suffered imprisonment for a minimum period of six months in the mainland jails or a person had remained underground for more than six months as a proclaimed offender or one on whom an award for arrest/head was announced before independence. Four representations made by late Sarma on 24.11.1992, in February 1993, on 13.9.1997 and in April 2000 have been annexed to the writ petition, but the original application allegedly made by him is not before the Court. In all these representations, the application dated 11.5.1980 allegedly made by him requesting for pension is mentioned in the reference entry. Neither a copy thereof nor acknowledgement from the Government of India or the Government of Andhra Pradesh are before this Court to come to a conclusion that the application was made within the time as stipulated in paragraph 8 of the Pension Scheme. Indeed another communication dated 26.10.1989; the first respondent surmised that late Sarma might have applied to the State Government before the last date prescribed for submission of applications i.e., 31.3.1982. In that view of the matter, in the absence of any material before this Court, it is not possible to accept the submission of the Counsel for the petitioner that the application was made by late Sarma before the last date prescribed. The verification report of the State Government is of utmost importance. When once the same is considered by the Government of India and pension was rejected on the ground of ineligibility, the matter must rest there. In the four representations referred to hereinabove, no details of late Sarma suffering imprisonment or underground are mentioned. In the absence of any such evidence, it is not possible for this Court to hold that the impugned order is arbitrary. Further, as held by this Court in Panjala Rajaiah v Government of India, New Delhi[1], recommendation of the State Government is not binding and ultimate authority to grant pension under the Pension Scheme is Central Government. When they rejected the request for grant of pension on the ground that a person does not possession eligible criteria, the finding of fact cannot be lightly interfered with. The Counsel did not raise any other plea. It is now well settled that pension payable under the Scheme is from the date of sanction (see Union of India v Ganesh Chandra Dolai[2]). For the above reasons, the writ petition fails and is, accordingly, dismissed. No costs. ________________ (V.V.S. RAO, J) March , 2011 YS [1] 2006 (4) ALD 185 [2] (1997) 10 SCC 289