IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 100 of 2010. Judgment reserved on 13th July, 2011. Date of Decision: 21st July, 2011. _______________________________________________________ Shri Munshi Ram deceased through his L.R. Smt. Geeta Devi. ….Petitioner. Versus Union of India and another .…Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the petitioner: Ms. Vandana Kuthiala, Advocate. For respondent No.1: Mr. Sandeep Sharma, Assistant Solicitor General of India. For respondent No.2: Mr. A.K. Bansal, Additional Advocate General. _________________________________________________________ Surinder Singh, J. By means of this petition, the petitioner claimed himself to be a freedom fighter, seeking financial assistance under “Swatantra-Senani Scheme, 1980” from the date of his application and quashment of Annexure PI, its rejection order dated 9.1.2009. 2. The petitioner was a subject of erstwhile Ruler of the Princely State of Bilaspur and alleged to have been externed under the oral orders of the Ruler for his activities in freedom-struggle and participation in 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - ‘Praja Mandal Movement’ for the merger of the said State into Union of India. He strived hard to get the pension under the ‘Freedom Fighters Pension Scheme’, which was later known as “Swatantrata Sainik Samman Pension Scheme, 1980”, but faced repeated rejections from respondent No.1-Union of India and ultimately died in harness while prosecuting his claim and now after his death, his widow Smt. Geeta Devi, who has been substituted as legal representative intends to get bestowed “Samman” to her deceased husband and to take the matter to a logical end. 3. In fact, the Scheme was introduced in the year 1972 on the occasion of Silver Jubilee of national independence. The Apex Court dealt with the Schemes aforesaid in Mukund Lal Bhandari and others v. Union of India and others, AIR 1993 SC 2127, examined similar matters qua limitation and its laudable object and observed in para 5 as under: “….the Scheme was introduced in 1972 on the occasion of the Silver Jubilee of our National Independence. It is not suggested that some of the freedom fighters were not in need of financial assistance prior to that date. When the Scheme came into force for the first time, it was also restricted to those who were in need of such assistance and hence only such freedom fighters were given its benefit, whose annual income did not exceed Rs. 5,000/-. It is only - 3 - later, i.e., from 1st August, 1980, that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependants. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now. Hence we are of the view that the pension under the Scheme should be made payable only from the date on - 4 - which the application is made whether the application is accompanied by the necessary proof of eligibility or not. The pension should, of course, be sanctioned only after the required proof is produced.” 4. Keeping in view the above objective and noble cause to which the Scheme propagate the case of the petitioner is required to be examined dispassionately, if his claim is genuine and in accordance with the provisions of the Scheme, there is no reason as to why it should not be allowed. Hence, I proceed to examine the facts as proved on record. 5. Although, the petitioner herein contended that he did not wish to be rewarded for making selfless sacrifices for the country which were based on his values and for this reason he did not apply for the pension as soon as the Scheme was announced. He being an old man of 94 years, required the financial assistance under the Scheme to maintain himself in his old-age, as his circumstances changed because of aging and changing scenario, he urged to be recognized as a ‘freedom fighter’ by the respondents. As such, applied for the same to the respondents on 20.9.1995 alongwith certificate dated 12.6.1995 issued by Shri Mansa Ram, Freedom Fighter, Bilaspur (Annexure PA) and another - 5 - certificate issued by Shri Chet Ram, Freedom Fighter, who was getting his freedom fighter pension vide PPO No.17/B/307/73 FF, who had undergone imprisonment for a period of two years and was an eligible certifier under the Scheme and also a certificate issued by Shri Narottam Dutt Shastri, Ex- MLA Freedom Fighter, Ex-Vice President of Bilaspur State ‘Praja Mandal’, but his claim was rejected by the respondents on 21.4.1997. Consequently, he filed CWP No.531 of 1998 in this Court, which came to be decided by a Division Bench on 3.5.1999 with a direction to the respondents to reconsider the case of the petitioner within three months, but again it was rejected on 30.6.1999 by the respondents. Vide letter Annexure PE dated 23.5.2007, the respondents communicated to the petitioner that they have decided to (conditionally) sanction pension under the ‘Swatantrata Sainik Samman Pension Scheme’ 1980 subject to future judicial remedy and requested him to supply the documents mentioned in the said letter. But vide letter Annexure PE=Annexure R-II dated 9.7.2007, the claim of the petitioner was rejected on the following grounds contained in para 7 of the said letter:- - 6 - “7 On examination of the case, it is found that Shri Munshi Ram is not eligible for grant of Samman pension due to the following discrepancies/ shortcomings: 1. He has not furnished any record-based primary evidence, duly verified by the State Government, in support of any of his claimed suffering (as indicated in para 6 above). 2. He has not furnished a valid Non-Availability of Records Certificate (NARC) from the State Government (i.e., the competent authority) containing all ingredients prescribed therefore (as indicated in para 6 above). 3. In the absence of a valid NARC, secondary evidence, i.e., Personal Knowledge Certificates (PKCs)for underground and externment suffering and Co-Prisoner Certificate (CPC) for imprisonment suffering cannot be considered and are not acceptable. The PKCs submitted by Shri Munshi Ram from S/Shri Chet Ram and Narottam Datt Shastri have, however, been scrutinized. The same are not acceptable as the certifiers have not furnished any record/evidence of their own jail suffering of minimum two years (i.e., they have furnished no evidence to establish that they are eligible certifiers). 4. Shri Munshi Ram has not submitted any Co- Prisoners Certificate. 5. The State Government of Himachal Pradesh vide its letter dated 21.6.1996 has inter-alia intimated that a detailed enquiry was conducted by the Deputy Commissioner, Bilaspur regarding the claim of Shri Munshi Ram. The Deputy Commissioner, Bilaspur vide his letter dated 16.5.1996 reported that Shri Munshi Ram is not eligible for grant of Central Samman Pension. The report of the State Government is negative, and made after detailed enquiry by the Deputy Commissioner, Bilaspur.” - 7 - 6. The petitioner again took shelter in this Court by filing another Writ Petition, registered as CWP No.65 Of 2000 challenging the decision dated 30.6.1999 and consequent order dated 9.7.2007. This Court examined the entire matter on the contentions raised by the petitioner that he was externed on the basis of oral orders passed by the then Raja of Bilaspur and on the perusal of the certificates issued by S/Shri Mansa Ram, Chet Ram, Freedom Fighters certifying that the petitioner had participated in ‘Praja Mandal Movement’ and he remained underground and also that he had participated in “Jatha” of INA and when he demonstrated in Bilaspur town in September, 1946, it led to his externment by the then Ruler for two years and Hon’ble Judge took support from the judgment passed in CWP No.756 of 1995, Jeet Ram versus Union of India, decided on 21.9.1995 by the Principal Bench of this Court, whereby the certificates issued by S/Shri Chet Ram and Narottam Dutt Shastri were held valid and were relied upon, which candidly proved the case of petitioner Jeet Ram therein, with respect to the participation in activities of ‘Praja Mandal Movement’ etc. Since these facts were not considered by the respondents, there was an interim - 8 - direction in CWP No.65 of 2000 above and finally while disposing of the said writ petition the Hon’ble Single Judge of this Court vide judgment dated 29.7.2008 issued the following directions to the respondents in its concluding para:- “Consequently, in view of the observations made hereinabove, the writ petition is allowed. Annexures PD dated 30.6.1999 and PF dated 9.7.2007 are quashed and set aside. The respondent-State is directed to recommend the case of the petitioner in view of the observations made hereinabove for the grant of pension under the ‘Swatantarta Sainik Samman Pension Scheme, 1980’ as amended from time to time within a period of three weeks from today to respondent No.1 and respondent No.1 on the basis of the recommendations made by the State Government shall decide the case of the petitioner within six weeks after the receipt of the recommendations from the State Government. It is clarified that the Central Government will consider the case of the petitioner on the basis of the secondary evidence furnished by the petitioner without insisting for the non-availability of record certificate (NARC) since he was externed on the basis of the verbal orders of the then-Raja of Bilaspur. There shall be no order as to costs”. [Emphasis mine] 7. Pursuant to the aforesaid directions, the matter was reconsidered by the respondents, which was again rejected, the provisional pension was also stopped. The State Government informed the petitioner vide letter dated 17.1.2009 (Annexure PI) enclosing the letter of the Central Government bearing No.52/CC/13/HP/98-FF (NZ) dated 9.1.2009, para 5 of which reads as under: - 9 - “5. On examination of the claim, it is found that Shri Munshi Ram is not eligible for grant of Samman pension due to the following discrepancies/ shortcomings: (i) He has not furnished any acceptable primary record-based evidence duly verified by the State Government in support of his claimed suffering as per para 4 above. (ii) The State Government has stated that Shri Munshi Ram has failed to produce any documentary evidence to prove his forced exile and grabbing of his land by local residence. He has also unable to produce any other evidence in support of his claim except the earlier adduced certificate issued by the freedom fighters. The State Government has concluded that there is no documentary evidence which can endorse the version of aforesaid freedom fighters. (iii) The State Government vide his letter dated 21.6.1996 inter alia intimated that a detailed enquiry conducted by D.C. Bilaspur and reported that Shri Munshi Ram is not eligible for grant of Central Samman Pension. (iv) He is also not submitted any valid co-prisoner certificates in the prescribed proforma.” 8. The claim of externment as per Scheme is subject to furnishing of following evidence: (i) “Primary evidence: Documentary evidence by way of an order of externment or any other corroboratory documentary evidence proclaiming that the applicant was externed from the district. (ii) Secondary evidence: In the absence of primary record based evidence from official records, a Non-availability of Record Certificate (NARC) from the concerned State/Union Territory Administration, alongwith a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has undergone imprisonment for two years or more and who - 10 - happened to be from the same administrative district (before the reorganization of the State) and their area of operation was the same can be submitted as supporting evidence to the claim.” 9. Certainly, the claim of the petitioner falls in Category No.(ii) above and there is no bar to prove his case by secondary evidence. Further, the case of the petitioner was also forwarded by the State Government to the Central Government vide letter No.GAD-F-E(3)-2-95-I dated 21.6.1996 with the necessary and complete record. Even the State Government sought report from the Deputy Commissioner concerned, who had recorded the statements of S/Shri Sant Ram and Gopala, besides recording the statement of the petitioner. The petitioner also supported his claim by filing an affidavit that he remained underground pursuant to the oral externment orders of the erstwhile Ruler State of Bilaspur and that taking the advantage of his externment some other persons had grabbed his landed property. Even the case of the petitioner was supported by one Shri Sant Ram in his affidavit filed before the Deputy Commissioner that meeting used to take place in the house of Munshi Ram aforesaid and also that on coming to know about this fact Munshi Ram was given severe beatings by the Ruler. - 11 - He was also externed. This fact has been corroborated by Gopala of the same district. By judgment dated 29.7.2008 passed in CWP 65 of 2000 while quashing the order of rejection of his claim, the respondent-State was specifically directed as aforesaid to recommend the case of the petitioner in view of the observations made in the judgment for the grant of pension under the ‘Swatantrata Sainik Samman Pension Scheme, 1980’ as amended from time to time in a time bound manner by respondent No.1 with the further clarification that the Central Government will consider the case of the petitioner on the basis of secondary evidence furnished by the petitioner without insisting for the Non-Availability of Record Certificate since he was externed on the basis of verbal orders of the then Raja of Bilaspur and wrongly insisted upon the eligibility of Munshi Ram as valid certifier without considering two other PKCs of S/Shri Chet Ram and Narottam Dutt Shastri who have been held to be valid certifiers by the judicial pronouncement as stated above. Further non- production of co-prisoner certificate in this case is not at all involved and required as the petitioner never remained in jail rather he was orally externed for a period of two years by the then ruler as already - 12 - stated above. It is not understood why the directions passed by this Court not taken in the right perspective. The impugned rejection order totally exhibits the non-application of mind. 10. Further, in CWP 539 of 1990, Prabhu Ram Sharma versus Union of India and another, decided on 29.12.1994 by the Division Bench of this Court on the basis of Mukund Lal Bhandari’s case supra, held that the petitioner therein had established his eligibility to the pension under the Scheme by producing the evidence as required by the said Scheme on the basis of the certificate issued by Shri Narottam Dutt Shastri, Ex-MLA and Freedom Fighter, was held to be a sufficient proof, as the Scheme only requires the furnishing of affidavit and other corroborative documentary evidence without specifying the nature of corroborative documentary evidence, thus the certificate aforesaid cannot therefore be rejected on the ground that the person(s) giving the certificate(s) is not able to state that he is competent to give the certificate, itself is not sufficient to reject the claim of the petitioner. These details could have been verified with reference to the other documentary evidence furnished by him. - 13 - 11. Against the aforesaid background and also the judicial pronouncements discussed above, in my considered opinion, the petitioner has established his eligibility to the pension under the Scheme by producing the evidence as required by the said Scheme. He is, therefore, held entitled to ‘Swatantrata Sainik Samman Pension’ from the date of his application, i.e., 20.9.1995. Thus, the respondent-Union of India is hereby directed by a writ in the nature of mandamus to grant him the benefit of the said Scheme from the date of his application in accordance with the provisions thereof within a period of four months from today and the same be released within two months thereafter, failing which it shall carry 9% interest from the date of application. 12. Since petitioner Munshi Ram expired while prosecuting his claim on 12.11.2010 and vide order dated 13.7.2011 his widow Smt. Geeta Devi has been brought on record as his legal representative, therefore, she shall be entitled for the “Samman Pension” under the scheme, which accrued to her husband-petitioner during his life time, and after his death she would get the pension in accordance with the provisions of the Scheme aforesaid. - 14 - 13. The petition is allowed in above terms with cost which is quantified at `10,000/- to be paid by respondent No.1 to the petitioner’s wife who is his legal representative. July 21, 2011. (Surinder Singh), (rc) Judge.