1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4192 of 2009 Date of decision:Nov.10th, 2009 Date of reserving the judgment: 4.11.2009 Date of pronouncing the order/judgment:10.11.2009 For approval and signature HON'BLE MR. JUSTICE NARESH H.PATIL HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see /No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? /No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/wp4192-09 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO 4192 of 2009 Shrimati Rabiabi Shaikh Mohmad Salar Patel, Age 76 yrs, occu.Nil, r/o. Navgaon, Tq.Paithan, Dist. Aurangabad. ...PETITIONER VERSUS 1. The State of Maharashtra Through Secretary, General Administration Department, Mantralaya, Mumbai. 2. The Dy.Secretary, General Administration Department Freedom Fighter Section, Mantralaya, Mumbai. 3. The Member Secretary, Freedom Fighter High Power Committee, New Administrative Building, 19 floors, Mantralaya, Mumbai. 4. The Sabhapati, Freedom Fighter High Power Committee, New Administrative Building, 19 floors, Mantralaya, Mumbai. 5. The District Collector, Aurangabad Dist. Aurangabad. 6. Sow. Vaishali Kadam, 3 Desk Officer, Maharashtra State General Administration Department, Freedom Fighter, Mantralaya, Mumbai. (Amended as per Court order dt.31.8.2009 in C.A.No.7708/2009) in W.P.no.4192/2009) ...RESPONDENTS ... Mr. N.L.Jadhav, Adv., for the petitioner. Mr. Bhushan Kulkarni, Adv., for respondent nos. 3 and 4. Shri V.D.Rakh, A.G.P.,for respondent State. ... CORAM: NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATE : NOVEMBER 10th, 2009. *** Date of reserving the judgment: 4/11/2009 Date of pronouncing the order/judgment:10.11.2009 *** JUDGMENT: (Per K.U.Chandiwal, J.) 1. Heard. Rule. The matter is finally heard. 2. Shaikh Mohamad Salar Patel participated in freedom movement popularly called "Hyderabad Mukti Sangram" in 1947-1948 in Youth Wing of 4 Congress. Application moved by him to Government of Maharashtra dt.26.12.1981 was considered. The case of said Shaikh Mohmad Salar Patel was recommended by the seniormost freedom fighters in the area in the year 1981, however he could not succeed in getting the requisite certification. He ultimately expired on 3rd Oct.,1989. Since the petitioner, being widow of Mohmad Salar Patel, claimed the lifetime pension, she submitted documents for such freedom fighters pension. Her case was recommended by District Freedom Fighter Felicitation Committee, Aurangabad, on 13.10.1992, to High Power Committee, however, the pension was not released. 3. The petitioner claims, by virtue of judgment of Full Bench of this Court in the matter of Tukaram Ramji Koli V. State of Maharashtra ( 1999 Mh.L.J. Vol. III, page 739), the cases which are already recommended by the District Freedom Fighters Felicitation Committee before 4.7.1995, the Government Resolution of 1995 will not be retrospectively applicable. 4. On 19.5.1999, the case of the petitioner was again recommended by the District Freedom Fighters Felicitation Committee to the Collector, Aurangabad. The birth certificate of husband of the petitioner, as sought, was also produced. However, on 26.6.2008, the claim was rejected 5 since she had not fulfilled criteria, in view of Government Resolution dt.4.7.1995. The petitioner tested the same in Writ Petition No. 6002/2008. This Court directed the respondents to consider and decide the case of the petitioner in the light of Government Resolution dt. 5.9.1992, within six weeks. 5. On going through the record and perusal of original file as was made available by Mr.Kulkarni, Counsel, un-disputedly, the claim of the petitioner for pension was pending with the Government since prior to 1995 and, in the light of Full Bench judgment in the matter of Tukaram, the Government Resolution of 1992 will naturally be applicable to the case of the petitioner. 6. The order issued by respondent no.6, the Desk Officer, dt.30th May, 2009, rejecting the claim, is subject of challenge. 7. The reasons assigned are that the affiant Shri Kishan Rajaram Patil and Pandit Ganpat Patil, the two freedom fighters who had issued letter of recommendation, have issued such recommendation in identical fashion. 8. The concerned authority did not specify as to how the Government Resolution dt.5.9.1992 is not complied by the petitioner. 6 The non acceptance of the recommendation by the above referred two freedom fighters on the grounds set out above, is not logical nor legal. It more smacks of whims of the official than exercise of powers diligently. 9. We have come across notes in the file which also elaborate that renowned freedom fighter Govindbhai Shroff, Vijayendra Kabra have also issued recommendatory certificates in favour of Shaikh Mohmad Salar Patel having participated in freedom fighters movement. Curiously, the Freedom Fighters High Power Committee and even the Government, by order dt.19.8.2003, has principally decided to accede/grant pension to the petitioner, however, it was not so acted upon. Taking into consideration these aspects, it is apparent that the order dt.30th May, 2009, subject of challenge, lacks merit and is contrary to the official record. The case of the petitioner being legitimate for grant of pension, should have been considered in its letter and spirit. 10. We, therefore, quash the letter dt. 30.5.2009, issued by respondent no.6, Desk Officer, and direct the respondent No.1 State to accept the claim of the petitioner and to confer and pay pension to the petitioner herein, 7 effective from Dec.,26th, 1990 (date of her application to learned Collector). Rule made absolute in above terms. (K.U.CHANDIWAL) (NARESH H.PATIL) JUDGE JUDGE ... agp/wp4192-09