IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.38797 of 2002 M.Kaliyan ... Petitioner Vs. 1.The Government of Tamilnadu, rep. by the Secretary to Government, Home Department, Fort St.George, Chennai-600 009. 2.The District Collector, Sivagangai District, Sivagangai. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying for a writ of Certiorarified Mandamus, calling for the records relating to the order of the second respondent herein in Mu.Mu.No.H3/35839/20007 dated 7.12.2001, quash the same and direct the respondent herein to grant Freedom Fighter's Pension to the petitioner together with all arrears. For petitioner : Mr.AL.Ganthimathi For Respondents : Mr.P.Gurunathan, GA O R D E R At the time of filing of the Writ petition, the petitioner was 85 years old. His request for state Freedom Fighter's Pension has been rejected by the District Collector, Sivaganai District, Sivagangai dated 07.12.2001, on the sole ground that he had not attained the age of 70 years as on 15.10.1988, as per G.O.Ms.No.30 Public (Political Pension-II) Department dated 07.02.1996. The said order is challenged in this Writ petition. 2. Before adjudicating the issue, this Court would like to extract the observation of the Supreme Court in an Appeal filed by the State of Tamilnadu and another Vs. A. Manickam Pillai dated 27.01.2010, made in Civil Appeal No.4400 of 2007, challenging the direction of this Court to pay Freedom Fighter's Pension to the respondent therein, who had undergone imprisonment "This appeal is an example and a reflection of the way we treat our freedom fighters inasmuch that while we applaud their contributions to the fight for freedom, deny them a pension, which, even if granted, amounts to a pittance and while many who apply are under financial distress, all without exception, wear it as a badge of honour and as a certificate of recognition of their efforts in the struggle for independence" 3. It is the case of the petitioner that he was an active participant of Quit-India Movement, during freedom struggle and tried by the Court of Special Judge, Ramnad. He was lodged in Madurai Central Prison between March 1943 and 1944. He made an application to the District Collector, Sivagangai District, for grant of state Freedom Fighter's Pension in 1997. The Tahsildar, Thiruvadanai, was directed to submit his remarks to the District Collector, Sivagangai, the second respondent. 4. The second respondent in his proceedings dated 09.03.1998, stated that the said report was defective, since the age particulars with regard to the family members were not enclosed. Thereafter, the Tahsildar, Thiruvadanai, by his letter dated 30.04.1998, directed the petitioner that the application should be sent in the prescribed form. Thereafter, the petitioner submitted all the particulars to the best of his knowledge and ability and thereafter, the Tahsildar Thiruvadanai, forwarded a report on 01.07.1998, to the District Collector, Sivagangai District. No action was taken by the respondents and therefore, the petitioner was constrained to sent a representation dated 25.01.1999, to the District Collector, on the Public Grievance Day. Thereafter, the second respondent addressed a letter dated 23.03.1999, to the Revenue Divisional Officer, Ramanathapuram, to submit his report and further directed the petitioner to contact the Revenue Divisional Officer. 5. The petitioner has further submitted that the Revenue Divisional Officer, Ramanathapuram, by his letter dated 19.04.1999, stated that the petitioner's application for grant of Freedom Fighter's Pension was considered and recommended to the District Collector, Sivagangai District, vide proceedings in O.Mu.No.9687/98, dated 31.12.1998. Thereafter, the petitioner received a communication dated 28.04.2000, from the Special Tahsildar, Devakottai, calling upon him to appear in person, with Ration card and other documents to substantiate his entitlement. The petitioner was advised that the application should be submitted in the form of an affidavit together with the details, as required in prescribed form and accordingly, he submitted the application dated 09.05.2000, to the second respondent with all the details and also enclosed Co-prisoner's certificates from Thiru.S.Swaminatha Thevar, and Thiru.C.Kalimuthu, Freedom Fighters and recipients of Central Freedom Fighter's Pension. 6. Not satisfied with the above certificates, the District Collector, Sivagangai District, in his letter dated 02.11.2000, stated that in so far as Sivagangai District is concerned, Thiru.P.Subramaniam and Thiru.Rn.Karuppan Chettiyar, alone were recognised as competent persons, who could grant Co-prisoner's certificate and in such circumstances, the petitioner was called upon to obtain Co-prisoner's certificates from them. In response to the same, the petitioner submitted a representation stating that the certificates given by other Co-prisoners namely, Thiru.S.Swaminatha Thevar and Thiru.C.Kalimuthu, would satisfy the conditions for grant of State Freedom Fighter's Pension. 7. Subsequently, the District Collector, Sivagangai District, in his letter dated 21.02.2001, stated that the petitioner had enclosed only a medical certificate to prove his age and that the same was not sufficient and therefore, directed him to produce Ration Card, Voter's-list, School Certificate or birth certificate, before 01.03.2001. In response to the same, the petitioner sent a reply dated 01.03.2001, to the second respondent stating that he was already aged about 83 years; that he was in jail between 1943 and 1944; that his date of birth was not registered in those days and therefore, he was constrained to enclose only a doctor's certificate to prove his age. The petitioner also submitted that since he had not undergone school education, he could not produce the school certificate. Pointing out the entries made in the ration card, with regard to his age, and that of his children, he submitted that the entries made erroneously by the Village Administrative Officer of the Village, need not be considered as proof of his age. 8. It is the further case of the petitioner that he was served with a notice dated 15.11.2001, directing him to appear before the Scrutiny Committee on 23.11.2001, and accordingly, he appeared. Thereafter, the petitioner has received the impugned order dated 07.12.2001, stating that his request for grant of Freedom Fighter's Pension cannot be considered on the ground that, he had not reached 70 years of age as on 15.10.1988, as required in G.O.Ms.No.30 Public (Political Pension-II) Department dated 07.02.1996. As on today, the petitioner is stated to be 98 years old. 9. Referring to the Memo dated 02.11.2000, issued by the District Collector, Sivagangai District, by which, the petitioner was directed to produce a Co-prisoner's certificate from Thiru.P.Subramaniam, Sivagangai District, and Mr.Rn.Karuppan Chettiyar, Karaikudi, persons nominated by the Government to issue a Co-prisoner's certificate in respect of Sivagangai district and the subsequent production of the said certificate dated 18.04.2000, given by Thiru.Rn.Karuppan Chettiyar, in favour of the Writ petitioner, certifying that the petitioner was imprisoned during the freedom struggle and eligible for the grant of State Freedom Fighter's Pension, Mr.ARL.Sundaresan, Learned Senior Counsel submitted that when the petitioner was found eligible in all respects, according to the scheme formulated by the State Government, the rejection of his request for grant of Freedom Fighter's Pension on the sole ground that he had not attain the age of 70 years as on 15.10.1988, as required in G.O.Ms.No.30 Public (Political Pension-II) Department, dated 07.02.1996, is not in consonance with object of the scheme. 10. Learned Senior Counsel further submitted that there is no rationale in fixing a cut off date and age, as eligibility criteria for grant of Freedom Fighter's Pension i.e., the claimants should have reached 70 years of age as on 15.10.1988. He further submitted that except the reasons stated in the impugned order, the petitioner was found otherwise eligible for grant of Freedom Fighter's Pension and therefore, the order reflects non-application of mind on the part of the competent authorities, with reference to the object of the scheme formulated by the Government and the hyper technical approach of the authorities in rejecting the case of the petitioner should not be approved by this Court. In support of his contention, Learned Senior Counsel placed reliance on the decisions in Gurdial Singh Vs. Union of India and others reported in 2001 (8) SCC 08, and G.Krishnamurthy alias G.K.Moorthy Vs. the Government of Tamilnadu and another reported in 2002(2) M.L.J 597, and M.A.Kandasamy Pillai Vs. the Government of Tamilnadu rep. by its Secretary (Public Political Pension) IV Department, Fort St.George, Chennai, and another reported in 2002 (3) CTC 487. For the abovesaid reasons, he prayed that the impugned order is liable to be set aside and a consequential direction be issued to the respondents to grant Freedom Fighter's Pension to the petitioner, together with all arrears and interest, forthwith. 11. The District Collector, Sivagangai District has filed a counter affidavit wherein, he has submitted that the petitioner had applied to the Collector, Sivaganga on 20.01.2000 and 09.09.2000, for sanction of Freedom Fighter's Pension. His request was rejected on the ground that he had not reached 70 years of age, as on 15.10.1988, as required in G.O.Ms.No.30 dated 07.02.1996. 12. He has further submitted that two certifiers namely, Thiru.P.Subramanian and Thiru.Rn.Karuppan Chettiar, were the designated certifiers for Sivagangai District, to issue Co- prisoner's certificate, as per G.O.No.1492, Public Department, dated 24.12.1996, and therefore, by letter dated 2.11.2000, the petitioner was requested to obtain certificates from above the said persons. He therefore, submitted that there is no illegality in insisting certificates from the persons nominated for the purpose. 13. The 2nd respondent has further submitted that the age of the applicant prescribed in G.O.Ms.No.30. Public (Political Pension) Department, dated 07.02.1996, is an important factor to be taken into consideration for recommending Freedom Fighter's Pension. According to him, Freedom Fighters of the age 70 and above as on 15.10.1988, alone are eligible to apply for Freedom Fighter's Pension, as per the above G.O., and that the following documents alone would be taken into consideration for age proof of the applicants. 1.School Certificate 2.Ration Card 14. It is also stated as per the guidelines issued in Government letter No.12273/96, 20 Public Department dated 13.1.1997, the age certificate issued by a Local Medical Practitioner need not be entertained. 15. The 2nd respondent has further submitted that the petitioner produced a Medical certificate dated 12.3.2000, to prove his age. The age mentioned in the said certificate was 83 years. Therefore, the petitioner's age could be approximately 71 years, as on 15.10.1988. It is the case of the respondents that the Medical Certificate cannot be taken as proof for age, for sanctioning Freedom Fighter's Pension. The District Screening Committee was convened on 27.10.2001, under the Chairmanship of the Collector to scrutinise the applications. The proposal relating to the petitioner's case was also placed before the committee with relevant records. But the Committee rejected the request of the petitioner, on the ground that the petitioner's age was 74 years, as on 27.11.2001, with reference to the family card of the petitioner and the age of the petitioner was determined as 61 years, as on 15.10.1988. (The cut off date prescribed in G.O.Ms.No.30 dated 7.2.1996), and therefore, the request of the petitioner was rejected on the ground that he had not reached 70 years as on 15.10.1988. A communication to that effect was also sent to the petitioner in this office K.Dis.No.35839/2000 dated 7.12.2001. 16. According to the respondents, a proper enquiry was conducted, on the request of the petitioner with reference to the records produced by him. As the petitioner was found not eligible, as per the conditions prescribed in the abovesaid G.O and the guidelines issued in Government Letter No.12273/96-20 dated 13.1.1997, the Writ petition is liable to be dismissed. Heard the learned counsel for the parties and perused the materials available on record. 17. When the matter came up on an earlier occasion, the State counsel was asked to explain the reasons and rationale behind fixing a particular age and a cut off date, as eligibility criteria for grant of Freedom Fighter's Pension. On this day, on instructions from the respondents, in particular, from Mr.Appadurai, Under Secretary to Government, Public Department (Freedom Fighters Division), who was present in the Court to-day, the Learned Government Advocate, submitted that the age criteria prescribed in G.O.Ms.No.30 Public (Political Pension-II) Department, dated 07.02.1996, is not taken into consideration for the purpose of deciding the eligibility criteria for grant of Freedom Fighter's Pension. Since the submission of the Learned counsel is contrary to the averments in the counter affidavit, on more than one occasion, he was asked to confirm his oral submission. The Learned Government Counsel reiterated the above position. Therefore, after confirmation his submission is placed on record. However, the learned counsel for the respondents attempted to justify the impugned order stating that the petitioner has not satisfied other conditions of eligibility and that the petitioner had not completed 18 years of age, at the time of his conviction. As the only reason stated in the impugned order of rejection, is that the petitioner had not reached 70 years of age, as on 15.10.1988, as per the abovesaid G.O., this Court is not inclined to accept the objections raised by the State counsel. At this juncture, it is to be noted that the application of the Writ petitioner was made in 1997. According to the petitioner, he was aged 87 years, when the said application was rejected on 07.12.2001, i.e., after 4 years. Now after 9 years, it is highly improper on the part of the respondents to come out a different reason, which is not on record. It is well settled that in a catena of decisions that when an order is challenged under judicial review, the order has to stand or fall on the strength of the reasons stated therein. Let me now consider some of the decisions relating to grant of Freedom Fighter's Pension. 18. While explaining the object of the scheme, and grant of Freedom Fighter's Pension, the Supreme Court in Mukund Lal Bhandari and others Vs. Union of India and others reported in AIR (1993) SC 2127, observed as follows: 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 dependents. 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. 19. The Supreme Court in Gurdial Singh Vs. Union of India and others reported in 2001 (8) SCC 08, while setting out the broad guidelines as to how an application for grant of freedom fighter's pension should be considered, the approach and difficulties faced by genuine freedom fighters to secure the supporting documents, at para 5 of the judgment held as follows. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rational and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the schemes are supposed to be such persons who had given the best part of their life for the country. 20. As regards the standard of proof, required for considering the request for grant of pension, the Supreme Court at para 7 held as follows: The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a- century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of "beyond reasonable doubt". Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence" 21. In M.A.Kandasamy Pillai Vs. the Government of Tamilnadu rep. by its Secretary (Public Political Pension) IV Department, Fort St.George, Chennai, and another reported in 2002 (3) CTC 487, though the petitioner therein, produced a Co-prisoner's certificate issued by a freedom fighter approved and recognised as a Certifier as per the Government order, the screening committee rejected the application of the claimant on the ground that, no proof of age was furnished by him. While testing the correctness of the order, following the judgment of the Supreme Court in Gurdial Singh Vs. Union of India and others reported in (2001) 8 SCC 08, and I.V.K. Malaichamy (deceased) and another Vs. the Government of India and others, reported in 2001 W.L.R. 549, this Court set-aside the order of the Government, rejecting the request of the freedom fighter and consequently, allowed the Writ petition as prayed for. 22. In K.Appanraj Vs. The Secretary to Government of India, Ministry of Home Affairs Freedom Fighters Division and others reported in 2004 W.L.R 606, this Court while considering the claim for pension, at paragraph 7 of the judgment held as follows: The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a- century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the proba- bilities and not on the touchstone of the test of "beyond reasonable doubt". Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence" 23. G.Krishnamurthy alias G.K.Moorthy Vs. the Government of Tamilnadu and another reported in 2002(2) M.L.J 597, following the decisions of the Supreme Court stated supra, directed the government to grant Freedom Fighter's Pension to the widow, as the claimant during his life time could not succeed against the government. 24. Material on record shows that the request of the petitioner for grant of Freedom Fighter's Pension was made in the year 1997, and for nearly 4 years, the application was under process, during which period, certain documents were directed to be furnished by the Writ petitioner to prove that he had actually participated in freedom struggle. At each and every stage from 1997 to 2001, until it was rejected on the hyper technical reason, the respondents were unmindful of the petitioner's age and have protracted the consideration of his claim. It is not the case of the respondents that the petitioner was not a Freedom Fighter and that he was not imprisoned during the period stated in the application form, for which, the Co-prisoners have given the required certificates. 25. In the Memo dated 02.11.2000, issued to the petitioner, the District Collector, has stated that in so far as Sivagangai District is concerned, Thiru.P.Subramanian and Thiru.Rn.Karuppan Chettiyar, Karaikudi, have been nominated as Certifiers to give Co- prisoner's certificate. The said memo is extracted hereunder. "Rje;jpug; nghuhl;l tpLjiy tPuh; Xa;t{jpak; nfhhp tpz;zg;gj;jpid tpsh';fhl;Lh; jpU.vk;.fhspahd; vd;gtuJ Mtz's; ghprPypf;fg;gl;ld. Rje;jpug; nghuhl;l tPuh;fSf;F rf ifjpr;rhd;W tH';f rptbf';if khtl;lj;jpw;F jkpHf murhy; fPH;f;fz;l rhd;whtz';fis (rh;l;oigah;!;)/ epakpf;fg;gl;Ls;sJ. 1. jpU.gp.Rg;gpukzpad;/ rptbf';if 2. jpU.Mh;.vk;.fUg;gd; brl;oahh;/ fhiuf;Fo. ,th;fsplk; rhd;W bgwhky; ntW egh;gsplk; rf ifjp rhd;W bgw;Ws;sjhy; nkw;fz;l ,Uthpy; ahhplkhtJ rf ifjp rhd;W bgw;W mDg;g[khW jpU.vk;.fhspahd; nfl;Lf; bfhs;sg;gLfpwhh;." 26. Perusal of the certificate issued by Thiru.Rn.Karuppan Chettiyar dated 18.04.2000, shows that the petitioner was imprisoned along with him and accordingly he has given a certificate. The said nominee has further stated that the name of the petitioner is also found in the Golden Jubilee Book of Freedom Fighters and therefore, in his capacity as a committee member, he has requested that Freedom Fighter's Pension be granted to the Writ petitioner without delay. The certificate issued by the said Rn.Karuppan Chettiyar, Screening Committee member, Karaikudi dated 18.04.2000, enclosed at page No.35 of the typed set of papers is extracted hereunder. "rptf';if khtl;lk;/ njtnfhl;il jhYf;fh/ jpUntfk;g[j;J}h; tHp tpsh';fhl;Lh; m";riyr; nrhh;e;e Kj;jd; kfd; fhspahd; vd;gtiu vdf;F ed;whfj; bjhpa[k;. mth; tpLjiyg; nghuhl;l';fspy; <Lgl;lth;. nkYk;/ rptf';if khtl;lk/ btd;dpa{iur; nrh;e;j jpahfp rhkpehjj; njtUk; (bgd;#d; vz;.3692/8)/ ,uhkehjg[uk; khtl;lk;/ jpUtpil kUJhiur; nrh;e;j jpahfpa[k; fhspKj;Jt[k; (bgd;#d; vz;.3567/9) nkw;go fhspahd; Rje;jpug; nghuhl;;l jpahfpfs; bgd;#d; bgwj; jFjpahdtbtd;Wk; j';fshL rpiwapypUe;jtbud;Wk; rhd;wspj;Js;sdh;. Rje;jpug; nghuhl;l jpahfpfs; bghd; tpHh kyhpy; Rje;jpug; nghuhl;l';fspy; <Lgl;L rpiwbrd;w jpahfpfs; gl;oaypy; fhspahd;;;;;;;;;;;;;;;;;; bgaUk; cs;sJ. Vdnt fhspahDf;F jhkjkpd;wp jpahfpfs; bgd;#d; mspf;FkhW rPyp'; fkpl;o cWg;gpdh; vd;w Kiwapy; nfl;Lf; bfhs;fpnwd;." 27. Material on record further shows that Thiru.S.Swaminatha Thevar, a recipient of Central Freedom Fighter's Pension, under the Ministry of Home Affairs order No.3692 and an eligible Certifier under the liberalised 1980 Swatantrata Sainik Sammon Pension scheme has issued a certificate dated 28.04.2002, certifying that the pensioner is a bonafide freedom fighter, imprisoned on account of his