IN THE HIGH COURT OF JUDICATURE AT PATNA C.W. J.C. No.3913 of 2010 Hardeo Prasad Singh S/O Late Janakdhari Singh R/O Vill.- Singariawan, P.S.- Fatuha ( At Present Sahjahanpur ), Distt.- Patna Versus 1. The Union Of India Through The Secretary Deptt. Of Home Affairs, New Delhi 2. Secretary, Deptt. Of Home Affairs, Freedom Fighter Section Giovt. Of India, Lok Nayak Bhawan, Khan Market, New Delhi- 110003 3. Under Secretary, Deptt. Of Home Affairs, Freedom Fighter Section Govt. Of India, Lok Nayak Bhawan, Khan Market, New Delhi- 110003 4. Chief Controller Of Accounts, Pay & Accounts Officer ( Pension & Miscellaneous ) Ministry Of Home Affairs, 10/2 Jamnagar House, New Delhi- 110011 5. The State Of Bihar Through The Home Secretary Govt. Of Bihar, Patna 6. The Joint Secretary Deptt. Of Home ( Special ) Govt. Of Bihar, Patna 7. The District Magistrate Patna ---------------------------------- 04. 09.08.2011 Heard learned counsel appearing on behalf of the petitioner, learned counsel appearing on behalf of the State and the Union of India. The writ petition has been filed challenging the order dated 11.9.2009 passed by the Under Secretary, Ministry of Home Affairs, Government of India, whereby pension granted to the petitioner under the Swantantrata Senani Samman Pension Scheme, 1980 (hereinafter referred to as the Scheme) has been cancelled, inter alia, on grounds of the petitioner being found to be a minor at the stage of the 1942 Freedom Movement. The facts in brief giving rise to the present writ petition 2 is that that the petitioner applied for pension under the Scheme on 22.6.1981 together with the certificate of Non Availability of the Court Records and Personal knowledge Certificate issued by Rai Mahendra Prasad, a freedom fighter. It is after verification of the claim of the petitioner that the same was put before the State Advisory Committee constituted for scrutiny of the claim. The State Advisory Committee in its meeting held on 22.5.1985 recommended the case of the petitioner for grant of pension under the Scheme of 1980. Following the recommendation a letter was sent to the Government of India vide letter dated 21.11.1985 as contained in Annexure-C to the counter affidavit filed on behalf of the State mentioning therein that the claim of the petitioner was based on underground suffering. Initially the claim of the petitioner was rejected by the Government of India on grounds that the petitioner being a minor at the stage of the 1942 Freedom Movement, it was improbable that any case may have been instituted against him. The order is placed at Annexure-D to the counter affidavit. Notwithstanding the rejection of the claim of the petitioner by letter dated 21.4.1986, the State Government in its Home (Special) Department again recommended the case of the petitioner for reconsideration vide letter dated 21.4.1988 clarifying the issue of age by mentioning that the age issue of the petitioner has been examined by the Home Secretary at the relevant time. With no positive response coming from the Government of India, the State Government again vide letter dated 20.10.1989 recommended the case of the petitioner for grant of pension in 3 question and which was rejected by the Government of India vide letter dated 28.11.1989 (Annexure-G). The case of the petitioner was taken up again by the State Government who vide letter dated 15.12.1992 (Annexure-H), forwarded the application of the petitioner for reconsideration and whereupon certain clarification was asked by the Government of India from the State Government. The State Government vide letter dated 1.10.1993 (Annexure-I) clarified the case of the petitioner. It was mentioned that the original copy of the Non Availability of Court Records Certificate along with the verification report of the District Magistrate dated 3.9.1986 has already been sent to the Government of India on 21.4.1988. The Director-cum-Deputy Secretary Home (Special) Department by the letter in question while enclosing the decision of the State Advisory Committee recommended the case of the petitioner for grant of Freedom Fighters pension. It is pursuant to these series of correspondence between the State Government in its Home (Special) Department and the Government of India in its Ministry of Home Affairs that ultimately vide order dated 27.3.1998, the Government of India allowed grant of Freedom Fighters Pension to the petitioner, copy whereof has been placed at Annexure-J to the counter affidavit of the State. The only stipulation made in the pension granting order was that if it was ultimately found that the petitioner had suppressed any information or had given any false information then pension would be cancelled without any prior notice. It so appears that pursuant to an order passed by this Court in a Public Interest 4 Litigation arising from C.W.J.C. No. 10638 of 2001, the various cases of grant of Freedom Fighters Pension, was reviewed by the State and after a detailed enquiry being conducted in the case of about 251 persons including the petitioner, a report was submitted by the District Magistrate, Patna holding the petitioner to be aged 11 years at the stage of the Freedom Movement of 1942 and hence not entitled for grant of pension. The report of the District Magistrate dated 18.9.2001 is placed at Annexure-K to the counter affidavit of the State Government. The basis on which the age of the petitioner has been determined by the State Government is the date of retirement of the petitioner from a Social Education Organization, a Scheme of the Department of Rural Development, from where the petitioner had retired on 1.2.1989. It was concluded that as the age of superannuation was 58 years, hence the date of birth of the petitioner on that basis, would be 1.2.1931 and thus the petitioner would be aged only 11 years at the stage of the Freedom Movement of 1942. On the basis of the said enquiry report, a letter was written by the Joint Secretary, Government of Bihar, Home (Special) Department to the Deputy Secretary, Government of India, Ministry of Home forwarding the enquiry report of the District Magistrate dated 18.9.2001 and holding that the petitioner had never participated in the freedom movement in view of his tender age. Surprisingly, at the stage of issuance of the letter containing adverse recommendations by the Joint Secretary, Government of Bihar as contained in the letter dated 2.11.2001 (Annexure-L), the State had become completely oblivious of the recommendation of 5 the State Advisory Committee, a body constituted by the State authorities to examine the claim put forth by the freedom fighters for grant of pension under the Scheme. The Joint Secretary also did not take into consideration their own recommendation as contained in the letter bearing memo no. 1953 dated 1.10.1993 placed at Annexure-I, whereby the State had recommended for grant of pension to the petitioner in the light of the approval granted by the State Advisory Committee. Following the developments aforementioned, a show cause notice was issued to the petitioner by the State Government who after examining the reply of the petitioner again recommended for cancellation of the Swatantrata Senani Samman Pension of the petitioner, vide letter dated 4.6.2002 as contained in Annexure-N to the counter affidavit. The Government of India acting upon the subsequent communications of the State Government recommending cancellation of the Swatantrata Senani pension of the petitioner on grounds of being tender age at the stage of the freedom movement, issued an order dated 12.4.2004 (Annexure-S to the counter affidavit), whereby the pension granted to the petitioner was cancelled on grounds of the petitioner being 11 years of age at the stage of Freedom Movement of 1942. The petitioner challenged the said cancellation by filing a writ petition before this Court giving rise to C.W.J.C. No. 10153 of 2004 and which was allowed vide order passed on 28.2.2006 (Annexure-18). The L.P.A. preferred by Union of India giving rise to L.P.A. 634 of 2006 was also dismissed as withdrawn upon 6 permission being sought by the appellant to file a review application before the writ court. In the light of the liberty, the Union of India filed an application for review of the order 28.2.2006 passed in C.W.J.C. No. 10153 of 2004 and which was dismissed by order dated 1.7.2009 (Annexure-20). However, this Court while dismissing the writ petition accorded liberty to the Central Government to initiate any fresh enquiry into the matter and pass appropriate orders in accordance with law. In the light of the liberty granted on the review application of the Union of India, the Central Government again started an enquiry into the claim of the petitioner and whereafter have been pleased to pass the impugned order dated 11.9.2009 as contained in Annexure-1, whereby the claim of the petitioner has been rejected on grounds of being tender age and thus his participation in the freedom struggle appeared to be doubtful. The petitioner being aggrieved by the order of cancellation dated 11.9.2009 has filed the present writ petition. Upon consideration of the contentions advanced on behalf of the respective parties and upon perusal of the materials available on record of the proceedings, it is manifest that the only ground on which the grant of freedom fighter pension to the petitioner has been cancelled is that he was a minor at the stage of freedom movement in the year 1942. It is not in dispute that initial grant of pension to the petitioner vide order dated 23.7.1998 (Annexure-J to the counter affidavit of the State Government) was after series of clarifications being sought by the Government of 7 India from the State Government including the age criteria and it is only after being satisfied as to the truthfulness of the information being supplied by the State Government that the order granting pension was issued on 23.7.1998 (Annexure-J) with the only stipulation that the pension would be cancelled in case the information supplied by the petitioner is found false. It would also be not out of place to mention here that the initial claim of the petitioner had also been rejected on grounds of tender age but after the State Government in its Department of Home (Special) had furnished the required papers certifying the age of the petitioner that the order of pension had been issued on 23.7.1998 with the stipulation as mentioned above. It is not the case of the Government of India that the petitioner was guilty of suppression of any information or of having supplied false information rather the cancellation order has been passed on grounds that the petitioner was a minor at the stage of the 1942 Movement. The document on which the respondents have relied for arriving at such a decision, is his date of retirement from a project under a Scheme of Rural Development Department, in the year 1989. In the entire exercise, neither the State in its Department of Home (Special) nor the Government of India have paid any attention to the decision of the State Advisory Committee, the certification by a freedom fighter certifying the petitioner participating in the movement and the school transfer certificate placed at Annexure-10 of the writ petition which is the clinching evidence as regarding the date of birth of the petitioner and very 8 clearly mentions the date of birth as 5.1.1929, which makes the petitioner not less than 13 years during the Freedom Movement of 1942. In view of the said certification, the view expressed by the State authorities, of the petitioner being 11 years of age becomes contrary to the evidence available on the record of the proceedings. Apart from that there is not a single stipulation in the Freedom Fighter Samman Scheme of 1980 which prohibits a claimant on ground of age. Definitely age can be a ground if the claimant is found extremely of a minor age. The age of 13 years cannot be an age in which a person can be held as not having participated in the freedom movement. Further the respondents have also not discredited the certificate granted by the freedom fighter placed at Annexure-3 of the writ petition issued by Rai Mahendra Prasad certifying the petitioner of having remained underground during the period 16.8.1942 to September, 1945. In addition to the certificate granted by the freedom fighter Rai Mahendra Prasad as contained in Annexure-3, the certificate of date of birth as contained in Annexure-10 and the letter of the Director-cum-Deputy Secretary dated 1.10.1993 (Annexure-I) forwarding the relevant documents for grant of pension to the petitioner in the light of the recommendation of the State Advisory Committee, the action of the State authorities in reviewing the case of the petitioner on grounds of age and recommending for cancellation of pension as also the action of the Union of India in acting thereupon and passing the order impugned as contained in Annexure-1 cannot be sustained. Accordingly, the writ petition is allowed. The order 9 dated 11.9.2009 as contained in Annexure-1 is quashed and set aside. The respondent authorities of the Union of India and the State of Bihar are directed to restore the pension of the petitioner under the Swatantrata Senani Samman Pension Scheme together with the arrears within a period of three months from the date of receipt/production of a copy of this order. S.Sb/- (Jyoti Saran, J.)