IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1330/2006 Reserved on:22.8.2008 Decided on:17.9.2008 Himmati Devi. …Petitioner. Versus Union of India and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Petitioner : Mr. Vijay Verma, Advocate. For the Respondents : Mr. Sandeep Sharma, Assistant solicitor General of India for respondent No.1. Mr. Rajinder Dogra, Additional Advocate General for respondent No.2. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the husband of the petitioner Sh. Dhani Ram was enrolled in the Indian Army in the year 1943. He was discharged from the Indian Army in consonance of reduction in Indian Army as per certificate of service dated 8.6.1947 Annexure P-2. Respondent No.1 has contested and resisted the writ petition primarily on the ground that the petitioner’s husband was never member of Indian National Army and thus was not entitled to be 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 declared as freedom fighter. The case of respondent No.2 i.e. State Government is that the petitioner’s husband has not been recommended by the Sub-Committee constituted by the State Government as per letter dated 18.9.2006 under the Himachal Pradesh Freedom Fighters Saman Policy, 1985. Mr. Vijay Verma, Advocate had strenuously argued that the case of the petitioner has not been considered in conformity with the scheme by the Central Government and the State Government could not reject the case of the petitioner under the Himachal Pradesh Freedom Fighters Saman Policy, 1985. Mr. Sandeep Sharma, Assistant Solicitor General of India had strenuously argued that the case of the petitioner could not be considered under the Scheme as he was never the member of the Indian National Army and to the contrary he was serving the cause of the Indian-British Army for which he was awarded Star, Barma Star, War Medal and G.S. Medal. Mr. Rajinder Dogra, Additional Advocate General had strenuously argued that the petitioner was called upon to supply the requisite documents and the same were considered by the Sub-Committee constituted by the State Government after the receipt of the case from the Deputy Commissioner, Mandi alongwith his inquiry report dated 18.10.2005. He further contended that the petitioner has not supplied the certificate from the Akhil Bhartiya Azad Hind Sena Samiti, New Delhi. In other words he had supported the decision of the Himachal Pradesh Swantantrta Sainani Kalyan Board. I have heard the learned counsel for the parties and perused the record carefully. 3 The husband of the petitioner was enrolled in the Indian Army, as noticed above, and was discharged as per Annexure P-2 on 8.4.1947 in consonance of reduction of Indian Army. He was awarded Star, Barma Star, War Medal and G.S. Medal. It has not been proved conclusively by the petitioner that her husband has ever served in the Indian National Army. If he had ever served the Indian National Army, the entry would have definitely been made in his discharge certificate. It will be apt at this stage to take into consideration two categories of Indian National Army personnel i.e. (i) those who joined the Indian National Army from the then British Indian Army called “Military Category” and (ii) those who were recruited in the Indian National Army Movement locally called “Civilian Category”. It has come in the reply filed by respondent No.1 that many Indian personnel who were made POW during the Second World War had joined the Indian National Army constituted in the South East Asia under the command of General Mohan Singh in 1942 and later under Netaji Subhash Chandra Bose. Only those persons who suffered imprisonment/detention by the British and/or lost their Government jobs for their participation in the Indian National Army are eligible for pension on production of the prescribed documentary evidence. The issuance of discharge book/certificate issued by the concerned Army authority/Regiments (the Regiment to which the claimant had served prior to joining the Indian National Army) is a crucial documentary evidence to decide the eligibility of the claimants. The case of the freedom fighters can be considered by the Central Government if the same are recommended and forwarded by the respective State Government. In the present case the case of the petitioner was never recommended by the State Government for release of pension to her husband being member of the Indian National Army. She had also submitted an application for the 4 release of pension under the scheme framed by the State. The inquiry was got conducted from the agency of the Deputy Commissioner. His report was received by the State Government dated 18.10.2005. The same was placed before the Himachal Pradesh Swatantrta Sainani Kalyan Board in its meeting held on 18.5.2006. The same was rejected, as noticed above, and the decision was conveyed to the petitioner on 18.9.2006. The certificate filed by the petitioner along with application supplied by one Sh. Fagnu Ram was not considered by the committee since according to the petitioner herself, her husband was serving in the Indian Army. Mr. Vijay Verma, strenuously relied upon the certificate issued by Sh. Fagnu Ram vide Annexures P-3 and P-4, respectively. This certificate could only be taken into consideration if the petitioner had been discharged from the Indian Army after joining the Indian National Army. The petitioner had been released on 8.6.1947 in consonance of reduction of Indian Army. He has not been discharged being a member of the Indian National Army. The certificate issued by Sh. Fagnu Ram was required to be taken into consideration if the petitioner had substantiated the claim by documentary evidence that her husband was member of the Indian National Army. In view of the fact that the petitioner’s husband had been simply discharged from the Indian Army, the certificate issued by Freedom Fighter Sh. Fagnu Ram is of no help. The certificates of the Freedom Fighters are only taken into consideration if the primary evidence is lacking in a particular case. The primary evidence available on the record discloses that the husband of the petitioner has never been the member of the Indian National Army and to the contrary he was serving the interest of the British Army, thus, the certificate issued by the Freedom Fighter cannot be taken into consideration. The certificate of 5 service shows that the petitioner had been awarded medals during his tenure when he was serving in the British Army. The person, who has been awarded the medals while serving the British Army cannot be said to be a Freedom Fighter by any stretch of imagination. If a person had been serving the British Army and had been decorated with medals, are granted the pension, it will go against the very spirit of the scheme. The scheme has been framed to give honour to the Freedom Fighters who have suffered immensely during the struggle. The persons who have suffered imprisonment/externment should be the recipient of the honour bestowed upon them by the Central or the State Government. Since the petitioner’s husband does not fall in any of the categories mentioned in the scheme, he was not entitled to be declared as a Freedom Fighter and consequently, he could not be granted any pension. The State Government on correct appreciation of the evidence has rightly rejected the case of the petitioner. The decision taken by the respondents for not granting any pension in favour of the petitioner under the Central and the State Schemes cannot be faulted with. In view of the foregoing reasoning, there is no force in the writ petition and the same is dismissed. There shall be no order as to costs. 17.9.2008 (Rajiv Sharma ), J. *awasthi*