Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.2144 of 2007 (M/S) Sri Omkar Nath Shastri, S/O Late Briz Mohan Lal Shastri, R/O Village Bareilly Nagar, P.O. Kila Khera, Tehsil Gadarpur, District Udham Singh Nagar. …… Petitioner. Versus Union of India through Secretary, Home Ministry and two others. … Respondents. Sri Nand Gopal Singh and Sri G.C.Kandpal, learned counsel for the petitioner. Smt. Farida Siddiqui, learned Standing Counsel (Central Govt.) for the respondent no.1-Union of India. Learned Additional Chief Standing Counsel for the respondent nos. 1 and 2. Date October 23, 2008. Hon’ble B.S.Verma, J. This writ petition has been filed for the following reliefs:- 1. To issue a writ, order or direction in the nature of certiorari quashing the order dated 29-3-2007 passed by the respondent no. 1. 2. To issue a writ, order or direction in the nature of mandamus directing and commanding the respondent no. 1 to grant the Swatantrata Sangram Sainani Sanman Pension to the petitioner from the date of application dated 31-12-2002 under the Freedom Fighter Pension Scheme. 3. To issue any other writ, order or direction, which this Hon’ble Court may deem fit and proper in view of the facts and circumstances of the case 4. To award the cost of petition to the petitioner. Brief facts, giving rise to the present writ petition, according to the petitioner, are that the petitioner took part in the independence movement and two freedom fighters and one M.L.A. who are named in paragraph no.2 of the writ petition issued 2 certificate certifying the participation of the petitioner in the freedom movement of India. Petitioner has annexed copies of those certificates as Annexure No. 1 to the writ petition. The petitioner did not make any application for pension or any other relief to the respondents earlier due to patriotism and his dedication to the nation, but due to old age and on account of compelling circumstances, he applied for the first time for Swatantrata Sainani Sanman Pension to the respondent no. 1 on 3-8-2003, but no useful action in the matter was taken. On 15-3-2004, The Assistant Secretary, Uttaranchal Government sent a letter to the respondent no.3-District Magistrate Udham Singh Nagar, stating therein that the Governor has been pleased to sanction lifelong pension to the petitioner at the rate of Rs. 4,171/- under Rule 12 of the Sangram Sainani Niyamavali, 1975 and directed the respondent no. 3 to get prepared necessary documents and identity card and to send the same to Pension Directorate, Dehradun. The petitioner is getting the said pension @ Rs. 4,314/- per month w.e.f. 15-3-2004 and now, he is getting the same at the rate of Rs. 5,627/- per month. On 7-10-2004 a letter was sent by Sri Santosh Gangwar to the Deputy Prime Minister and the Prime Minister stating therein that the petitioner participated in freedom movement between 1938 and 1945 and after confinement of his father late Sri Briz Mohan Lal Shastri, petitioner continued the movement remaining underground throughout the period. A copy of the said letter has been annexed as Annexure No. 5 to the writ petition. On 29-6-2004 Deputy Secretary to Government of India sent a letter stating therein that the Ministry is only administering the SSS Pension Scheme 1980 under which freedom fighters who suffered jail imprisonment of not less than six months or remained underground for a period of not less than six months for their active participation of freedom struggle of India are eligible for the same and asked that if the petitioner meets the eligibility requirement for SSS Pension, he should apply for the same in the prescribed proforma. A copy of the said letter has been annexed as Annexure 3 No. 6 to the writ petition. Consequently, the petitioner filled up the prescribed proforma along with affidavit and sent one copy of the same to the Deputy Secretary concerned of the Government of India and another copy to the State Government on 18-10-2004. Petitioner also sent a letter to the Chief Minister of the State of Uttaranchal on 18-10-2004 with the request to forward the application to the Central Government along with recommendations of the State Government. The State Government approved the pension of the petitioner and requested the Central Government to take a decision for grant of Central Pension to the petitioner vide Annexure No. 9. Petitioner made a representation to the Home Minister of the Central Government by letter dated 25-2-2005 (Copy Annexure No. 10). According to the petitioner, Sri Santosh Gangwar and Sri Moti Lal Bora, both M.Ps. also sent letters to the Government of India for grant of S.S.S. Pension to the petitioner because the State Government has already sanctioned S.S.S. Pension to him. Under Secretary to the Government of India by his letter dated 27-9-2005 informed the petitioner that he should move his application on prescribed proforma along with documentary evidence in support of his claimed sufferings. The petitioner by his letter dated 6-10-2005 sent reply of the letter, a copy of which has been annexed as Annexure No. 13. The petitioner has further stated that when his father remained in jail from 1942-45, as a political prisoner, the petitioner participated in underground activities to continue the freedom movement and rendered his services. The English Government tried to apprehend the petitioner but he could not be arrested and for his contribution to the freedom struggle, the State Government has granted S.S.S. pension to him. The grievance of the petitioner is that the petitioner made several representations to the Government of India and sought for information under the Right to Information Act in regard to his Honourary Pension under the Swatantrata Sainani Samman Pension Scheme but to no avail, hence this writ petition has been filed. 4 On behalf of respondent no.1- Union of India counter affidavit has been filed. Contents of paragraph no. 2 of the writ petition have been denied and it has been stated in reply thereto that as per provisions of Swatantrata Sainik Samman Pension Scheme 1980, an applicant who claims underground suffering is eligible for Samman Pension only when he had been a proclaimed absconder and had remained underground for six months and he is required to forward his application along with documentary evidence by way of Government Orders proclaiming the applicant as an absconder with announcement of an award on his head or for his arrest intending his detention and such same ought to have been duly verified and recommended by the concerned State Government. According to S.S.S. Pension Scheme, absconding on issue of warrant of arrest is not an eligible suffering for grant of SSS pension, unless the same is followed by an order of proclaimed offender or award on arrest/head or detention order. It has been further stated that the application of the petitioner dated 18-10-2004 was examined under the provisions of the said Scheme and in terms of the direction of the Court vide order dated 30-11-2006. As the petitioner did not fulfill the eligibility criteria and evidentiary requirements of the scheme, his case was rejected vide speaking order passed by the Ministry dated 28-3-2007. A copy of the order has been annexed as Annexure CA-1 to counter affidavit. In reply to the contents of paragraph nos. 7, 8 and 9 of the writ petition, it was stated that on receipt of representation dated 31-12-2003 of the petitioner through Sri Santosh Gangwar, the petitioner was requested by letter dated 29-6-2004 to furnish his claim through the State Government along with all supporting documents duly verified and recommended by the State Government. A copy of the letter dated 29-6-2004 has been annexed as Annexure No. CA-2 to the counter affidavit. In reply to paragraph no. 13 of the writ petition, it was stated that the grant of pension by the State Government does not ipso-facto entitle a person for grant of Samman pension under the S.S.S. Pension Scheme 1980 of the 5 Central Government. Central Government Pension Scheme and the State Government Pension Scheme are two distinct and separate schemes with different set of rules. It was also stated that the letter received from Shri Motilal Vora M.P. was examined and replied to on 12-1-2006. It has also been stated that the grant of freedom fighter pension by the State Government under its own scheme does not entitle the petitioner for grant of Samman Pension under the S.S.S. Pension Scheme 1980 of the Central Government and the same is subject of fulfillment of eligibility criteria and evidentiary requirements by the applicant. It has further been stated that an application dated 20-9-2006 of the petitioner under the Right to Information Act 2005 was examined and reply was went to him vide letter dated 29-11-2006. Copy of the same has been annexed as Annexure No. CA-3 to the counter affidavit. The case of the petitioner was considered under the provisions of the S.S.S. Pension Scheme 1980 and the prayer was rejected for non- fulfillment of requirement of the scheme. Short Counter Affidavit has been filed on behalf of respondent no.3-District Magistrate, Udham Singh Nagar, wherein it was stated that petitioner has not claimed any relief against the answering respondents-State. The petitioner has filed rejoinder affidavit, wherein the averments made in the counter affidavit have been denied and the averments made in the memo of writ petition have been reiterated. It was reiterated that the petitioner was declared proclaimed absconder by the English Government and that the State of Uttarakhand has recommended the case of the petitioner to the Central Government but the Central Government in place of granting S.S.S. Pension rejected the same arbitrarily because the petitioner fulfilled all evidentiary requirements of the pension scheme. It was also stated that once the State Government had recommended the claim of the petitioner to the Central 6 Government, the petitioner couldn’t be denied the pension on any ground. I have heard learned counsel for the parties and perused the averments made in the writ petition, the counter affidavit and the rejoinder affidavit along with its enclosures. It was vehemently argued by the learned counsel for the petitioner that the State Government itself has sanctioned vide order dated 15th March 2004 and Freedom Fighter Identity Card was also issued to the petitioner by the Additional District Magistrate Udham Singh Nagar on 12-7-2004 and the petitioner also furnished photocopies of the certificates issued by the Freedom Fighters, who had been Member of Parliament and Member of Legislative Assembly, therefore, refusal of pension under the Swatantrata Sainik Samman Pension Scheme by the Central Government is against the spirit of the Scheme. It was also argued that in fact it was for the Government, if it is possible for them to do so, to find the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. There was no justification for the Central Government to refuse the said pension, particularly when a letter was sent by the Additional Secretary of the State Government to the Union of India. In support of his contention, the learned counsel for the petitioner has placed reliance upon the case of Murugaiyan Vs. Union of India and another [AIR 2000 Madras, Page 199]. Learned counsel for the petitioner submitted that facts of the said case were identical to the point involved in the present case. The only contention of the learned for the Union of India was that the petitioner had been refused the pension for non- fulfillment of the requisite proof of sufferings etc. and the petitioner 7 had been asked to submit his application with the recommendation of the State Government. I have considered the argument of the learned counsel for the petitioner and the Union Government and perused the case law referred to above. The argument of the learned counsel for the petitioner has force. In the cited case, reliance was placed on paragraph no. 43 of the Division Bench judgment of the Madras High Court in the case of R.Thangavelu Vs. Government of India [1994 Writ LR 137] wherein it was held that “Similarly, if the State Government grants pension to a Freedom Fighter, the same should be accepted by the Central Government and no further proof should be insisted upon. In other words, once either the State Government or the Central Government grants pension to a particular Freedom Fighter, he must automatically get the other pension either under the State or under the Central Government Scheme without any further enquiry, on the claimants satisfying the guidelines, and the Government cannot reject the claim summarily that he is not a Freedom Fighter at all.” In the case at hand, admittedly, the State Government has sanctioned Freedom Fighter Pension. Moreover, the State Government vide its letter No. 1191/XX(3)-24/Swa.Sa.Se./03 dated January 14, 2005, this fact was communicated to the Central Government vide Annexure No. 9. The petitioner is undisputedly aged more than 75 years at present. Needless to mention that the petitioner in the age of senility had to make voluminous correspondence to the Central Government time and again, but to no avail. Therefore, to my mind, there was no justification at all for the Central Government to refuse Swatantrata Sainik Samman Pension to the petitioner particularly when the State Government had already granted Freedom Fighter pension and the fact was communicated to the Central Government by the Additional Secretary. 8 In the result, the writ petition deserves to be allowed. The impugned order dated 29-3-2007 passed by the respondent no.1 is liable to be quashed. The writ petition is allowed. Impugned order dated 29-3-2007 passed by the respondent no.1 (copy Annexure No. 17 to the writ petition) is quashed. The respondent no. 1, by a writ of mandamus, is directed to consider the claim of the petitioner for grant of pension under the provisions of Swatantrata Sainik Samman Pension Scheme, 1980 and pass appropriate orders sanctioning the said pension to him expeditiously, as far as possible. No order as to costs. ( B.S.Verma, J. ) RCP 9 10