GOVERNMENT OF INDIA & ORS. versus SITAKANT S. DUBHASHI & ANR.
[2020] 3 S.C.R. 736, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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SUPREME COURT REPORTS
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GOVERNMENT OF INDIA & ORS.
v.
SITAKANT S. DUBHASHI & ANR.
(Civil Appeal No. 987 of 2020)
FEBRUARY 11, 2020
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Freedom Fighter – Pension – Swatantrata Sainik Samman
Pension Scheme, 1980 – Goa Freedom Fighter’s Welfare Rules, 1988
– After liberation of Goa in 1961, the State framed the Goa Freedom
fighter’s Welfare Rules, 1988 – After several deliberations, a list of
22 persons was approved on 26.12.2007 for the State pension in
which respondent no. 1 was also included – The Swatantrata Sainik
Samman Pension Scheme, 1980 was extended by relaxing the
conditions contained therein to the participants of Goa Liberation
Movement, Phase-II by the Government order dated 17.02.2003 –
The scheme dated 17.2.2003 clearly provided that the Central
Pension is to be granted to the participants of the second phase of
Goa Liberation Movement who have been granted freedom fighter
pension by the State Government by 01.08.2002 – After receipt of
State Pension, the respondent no. 1 sent a representation dated
06.08.2009 to the Government of India for grant of SSSP scheme
from the Government of India – The Government of India found
respondent no. 1 ineligible for grant of SSSP scheme under the
relaxed criteria for Goa Liberation Movement, Phase-II – Writ
petition by respondent no. 1 – The High Court allowed the writ
petition and directed the appellant to grant the pension under SSSP
scheme to the respondent
no. 1 w.e.f. 11.03.2008 – Before the
Supreme Court, the respondent no. 1 contended that the object of
SSSP scheme was to grant Central pension to all those who are in
receipt of the State pension and the scheme dated 17.02.2003 lacked
intelligible differentia and also nexus with the object – Held: The
object of the SSSP scheme was to grant the Freedom Fighters Central
Pension to those who fulfil the eligibilities as per the Scheme –
From the material available on record, it does appear that the
Government of India deliberated on the issue of cut-off date to
01.08.2002 and the said cut-off date was consciously fixed for
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extending the benefit of SSSP scheme to participants of Goa
Liberation Movement, Phase-II – The scheme was not an open-ended
scheme and relaxation was granted to a particular category of
persons, who were in receipt of the State pension by 01.08.2002 –
The relaxation granted by order dated 17.02.2003 cannot be said
to be the object of the Central Government – The object under
SSSP was always and still is to grant freedom fighters pension to
those who fulfil the eligibility of SSSP scheme – The submission of
respondent that object of SSSP was to grant Central Pension to all
those in receipt of the State pension cannot be accepted – By relaxing,
the SSSP scheme for a limited category, the object of the main scheme
shall not be lost nor those who are not covered by relaxed conditions
can claim right to grant of SSSP Scheme, 1980 – Thus, the scheme
dated 17.02.2003 has intelligible differentia and also nexus with
the object – There was no error in rejecting the claim of respondent
no. 1 for grant of SSSP Scheme, 1980.
Allowing the appeal, the Court
HELD: 1. From the material which has been brought on
record, it does appear that Government of India deliberated on
the issue of cut-off date to 01.08.2002 and the said cut-off date
was consciously fixed for extending the benefit of Swatantrata
Sainik Samman Pension Scheme, 1980 to participants of Goa
Liberation Movement, Phase-II. The eligibility under the SSSP
Scheme, 1980, is entirely different from the
eligibility of the State
pension under the Goa Freedom Fighter’s Welfare Rules, 1988.
Goa was liberated in 1961. The State has framed the rules initially
in 1973 and thereafter in 1988. Freedom Fighters were sanctioned
pensions in aforesaid Goa Rules at least after 1973. The question
of extension of SSSP scheme to the participants of Goa Liberation,
Phase-II was being considered by the Central Government from
the year 2000 and ultimately, it was extended by Scheme dated
17.02.2003. [Para 23][752-B-E]
2. The SSSP Scheme, 1980 provided for eligibilities for
Freedom Fighters to make an application under the SSSP Scheme,
1980. Freedom Fighters of the Goa were also included and those
who fulfil the conditions therein were entitled to grant of the
pension. In the present case, this Court is concerned with the
SSSP Scheme, 1980. The object of the Scheme was to sanction
GOVERNMENT OF INDIA & ORS. v. SITAKANT S.
DUBHASHI & ANR.
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SUPREME COURT REPORTS
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pension under the Scheme, 1980, who fulfil the eligibilities as
per the Scheme. The State pension for which Scheme and Rules
have been formulated by different States including the State of
Goa were on different eligibilities and the mere fact that a person
is eligible or entitled to a State pension does not ipso facto makes
him eligible for the SSSP Scheme, 1980. The object of the SSSP
Scheme, 1980 was to grant the Freedom Fighters Central Pension
to those, who fulfil the eligibility which object was clearly fulfilled
in including the Goa Liberation Movement also under the
Scheme. As noted above, representations were received from
various quarters to extend the SSSP Scheme, 1980 to participants
of Goa Liberation Movement particularly, those, who participated
in the Second Phase of the Movement (1954-55). The Central
Government decided to relax the conditions of eligibility under
SSSP Scheme, 1980 by Scheme dated 17.02.2003 and while
relaxing the Scheme cut-off date 01.08.2002 was fixed for making
eligible the participants of Goa Liberation Movement. This Court
has already noticed the rationale for fixing the cut-off date, which
was fixed after due deliberation and consideration of relevant
facts. [Para 25][753 A-F]
3. The submission of respondent No.1 is that there was no
nexus with the object sought to be achieved by fixing the cut-off
date 01.08.2002. As noticed, the object of SSSP Scheme, 1980
was to grant Central
Pension to those who were eligible under
the said Scheme. The Freedom Fighters of the Goa Liberation
Movement were already included in the Scheme, 1980, who were
eligible as per the said Scheme. Thus, with regard to Freedom
Fighters of Goa Liberation Movement, the Scheme, 1980 covered
them and the object was to grant only those Freedom Fighters of
Goa Liberation Movement, who fulfilled the eligibility of SSSP
Scheme, 1980. When Scheme was relaxed and extended to
participants of the Goa Liberation Movement Second Phase,
relaxation was granted in the eligibility as provided in the SSSP
Scheme, 1980 with the condition that those who are in receipt of
State pension by 01.08.2002 should be extended the benefit of
relaxation. The Scheme was not an open-ended Scheme and
relaxation was granted to a particular category of persons, who
were in receipt of the State pension by 01.08.2002. The relaxation
granted by order dated 17.02.2003 cannot be said to be the object
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of the Central Government. The object under SSSP Scheme, 1980
was always and still is to grant Freedom Fighters pension to those
who fulfil the eligibility of SSSP Scheme, 1980. The submission of
the respondent No.1 that object of SSSP Scheme, 1980 was to
grant central pension to all those, who are in receipt of the State
pension cannot be accepted. By relaxing, the SSSP Scheme, 1980
for a limited category, the object of the main Scheme shall not be
lost nor those who are not covered by relaxed conditions can
claim right to grant of SSSP Scheme, 1980. Thus, this Court is of
the view that the Scheme dated 17.02.2003 has intelligible
differentia and also nexus with the object. When relaxation is
granted to a limited category, the others, who are not covered by
the Scheme cannot claim any violation of the right of equality.
Right of equality can be claimed only by those who fulfil the
eligibilities under the SSSP Scheme, 1980. [Para 26][753 F-H;
754 A-E]
4. Thus, there was no error in rejecting the claim of
respondent No.1 for grant of SSSP scheme as communicated by
communication letters dated 16.11.2009 and 13.11.2014. The
Government Scheme dated 17.02.2003 also did not suffer from
any infirmity. [Para 32][756 D-E]
Mukund Lal Bhandari and Others v. Union of India
and Others (1993) Supp. 3 SCC 2 : [1993] 3 SCR 891
– distinguished.
Case Law Reference
[1993] 3 SCR 891
distinguished
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 987 of
2020.
From the
Judgment and Order dated 16.03.2017 of the High Court
of  Bombay at Goa, Panaji in Writ Petition (C) No. 229 of 2016.
Vikramjit Banerjee, ASG, Akshay Amritanshu, Ms. Sunita Sharma,
Siddharth Sinha, Prashant Rawat, Om Prakash Shukla, Shubham Sharma,
B. V. Balaram Das, Advs. for the Appellants.
Ms. Mugdha Pande, Pallav Mongia, Pratap Venugopal, Ms.
Surekha Raman, Akhil Abraham Roy, P. S. Sudheer, Advs. for the
Respondents.
GOVERNMENT OF INDIA & ORS. v. SITAKANT S.
DUBHASHI & ANR.
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed against judgment of High Court of
Bombay at Goa at Panaji dated 20.03.2017 allowing the writ petition
filed by respondent No.1. The writ petition was filed by respondent No.1
challenging the notification dated 17.02.2003 issued by Government of
India as well as orders dated 16.11.2009 and 13.11.2014 issued by the
Government of India rejecting the claim of respondent No.1 for pension
under Swatantrata Sainik Samman Pension Scheme, 1980.
2. Brief facts of this case for deciding this appeal are: -
2.1.
The Government of India has introduced Freedom Fighters
Pension Scheme, 1972. With certain modifications, the
scheme was renamed as Swatantrata Sainik Samman
Pension Scheme, 1980 (hereinafter referred to as “SSSP
Scheme, 1980”). For grant of pension under the SSSP
Scheme, 1980, there were eligibility conditions. The freedom
fighters having suffered minimum imprisonment of six
months were eligible for benefit of the Scheme. The
Government of India decided to extend the SSSP Scheme
to the participants of Goa Liberation Movement who fulfilled
the eligibility conditions under SSSP Scheme. The
respondent had made an application to the Government of
India for grant of SSSP Scheme on 19.03.1982. The
respondent No.1 was informed by the Government of India
in the year 1985 that his case having not recommended by
the State he is not entitled
for SSS Pension. The Government
of India received representation from various quarters for
grant of pension to all the participants of Goa Liberation
Movement particularly to those who participated in the
second phase of the movement (1954-55). The Government
of India decided to grant freedom fighter pension to
participants of Goa liberation Movement Phase-II
(1954-55) under SSSP Scheme, 1980 by Government Order
dated 17.02.2003.
2.2.
After liberation of Goa in 1961, the State of Goa has initially
framed Goa, Daman & Diu freedom fighters welfare Rules,
1973. In supersession of 1973 Rules, the State framed the
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Goa freedom fighter’s welfare rules, 1988. Freedom fighters
were defined in Rule 2.
2.3.
The respondent had made an application for State pension
by application dated 28.07.2001. On the application of the
respondent, the Government of Goa asked for reports from
Inspector General of Police which was submitted by Deputy
Inspector General of Police dated 09.05.2002 opining that
name of the respondent No.1 is not figuring in the freedom
fighters register. The application of respondent No.1 was
considered by the Government and the application of
respondent No.1 for grant of State Pension was rejected
on 18.12.2002.
2.4
The respondent No.1 made an application dated 15.04.2003
for grant of pension under the SSSP Scheme, 1980 for
Freedom Fighters of Goa Liberation Movement Phase–II
(1954-55).  The State of Goa wrote a letter dated 13.02.2004
to the respondent No.1 that copy of Samman Pension order
cannot be issued to him since his case has not been approved
so far.  The respondent No.1 was, however, informed that
his application for State pension will be placed before the
Committee for further action. The Committee constituted
by State of Goa to consider the cases for grant of State
pension considered the case of respondent No.1 and by
proceeding dated 23.07.2004 opined to reject the claim.
2.5.
In pursuance of announcement of State of Goa for
re-opening of Freedom Fighters Scheme in 2003, the claim
of large number of persons were entrusted to a Committee
constituted under the Chairmanship of Chief Secretary.
After several deliberations ultimately a list of 22 persons
was approved on 26.12.2007 for State pension in which
respondent No.1 was also included. On 26.12.2007, the
name of respondent No.1 was approved for grant of State
Pension and consequently, a pension payment order was
issued on 11.03.2008 to respondent No.1 for grant of State
Pension w.e.f. 01.12.2007. After receipt of State Pension,
the respondent No.1 sent a representation dated 06.08.2009
to the Government of India for grant of SSS Pension from
the Government of India. The Government of India vide
GOVERNMENT OF INDIA & ORS. v. SITAKANT S.
DUBHASHI & ANR. [ASHOK BHUSHAN, J.]
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letter dated 16.11.2009 communicated respondent No.1 that
case of respondent No.1 has been examined and it is found
that respondent No.1 has been granted State Pension in
2008 only, hence, he was ineligible for grant of SSS Pension
under the relaxed criteria for Goa Liberation Movement
Phase-II. The respondent No.1 was communicated that
participants who were in receipt of State Pension by
01.08.2002 are only eligible. On a further representation by
respondent No.1, again a similar communication was sent
by the Government of India to respondent No.1 dated
13.11.2014. 
2.6.
The respondent No.1 filed a writ petition No. 229 of 2016
in the High Court of Bombay, Goa at Panaji, praying for
following relief:
“A. Declaration that the decision of Government of India
dated 4/2/03 and the notification dated 17/2/03 to the
extent it restricts the entitlement of pension to freedom
fighter participants of Goa Liberation Movement Phase
II who were in receipt of pension as on 1/08/2002 is
arbitrary null and void being violative of Article 14 of
Constitution of India and for a declaration that freedom
fighters recognized by the Government of Goa and in
receipt of State Government pension notwithstanding the
date being later than 1/08/02 are entitled to pension.
B. Writ of mandamus, writ in the nature of mandamus
directing the respondent to consider the application of
petitioner for grant of pension under the Swatantrata
Sainik Sanman
Pension Scheme 1980 Goa Liberation
Movement Phase-II (1954-55).
C. For writ of certiorari, a writ in the nature of certiorari
or any other writ direction and other quashing and setting
aside Communication dated 16/11/09 and 13/11/2014
passed by the Ministry of Home Affairs.”
2.7.
The appellant could not file any reply to the writ petition
nor case of the respondent No.1 was specifically denied.
The High Court after hearing the parties allowed the writ
petition and directed the appellant to grant the pension under
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SSSP Scheme to the respondent No.1 w.e.f. 11.03.2008.
The Government of India aggrieved by the said judgment
has come up with this appeal. A Counter affidavit has been
filed by respondent No.1 as well as respondent No.2, the
State of Goa. The Government of India has filed an
additional affidavit dated 02.12.2019. A rejoinder affidavit
has also been filed by the appellant.
3. We have heard Shri Vikramjit Banerjee, ASG for appellant,
Mrs. Mugdha Pande has been heard for respondent No.1 and Shri Pratap
Venugopal has appeared for State of Goa.
4. Learned counsel for the appellant submits that to the participants
of Goa Liberation Movement, Phase-II, the SSSP scheme was extended
with the conditions that only those applicants shall be eligible to receive
the benefits of the scheme who are in receipt of State Pension on
01.08.2002. It is submitted that issue of fixation of date was deliberated
and consciously included in the scheme which is apparent from relevant
noting brought on record along with the additional affidavit.
5. It is submitted that the respondent No.1 has been granted State
Pension on 11.03.2008 only and he did not fulfil the condition of the
scheme which was introduced by the Government Order dated
17.02.2003. The Government of India did not commit an error in rejecting
the claim of the respondent No.1. High Court has erred in holding that
cut-off date 01.08.2002 has no relevance. It is further submitted that
High Court committed error in
allowing the writ petition of respondent
No.1 who did not fulfil the eligibility for grant of SSSP Scheme.
6. Counsel appearing for respondent No.1, Ms. Mugdha Pande,
vehemently refuting the submission of Counsel for the appellant contends
that the respondent No.1 had been issued Identity Card of freedom fighter
in the year 1984 and he had made an application for grant of State
Pension on 28.07.2001 which although was rejected in December 2002
but subsequently State itself having granted pension w.e.f. 01.12.2007,
the respondent No.1 is eligible for grant of SSS Pension.
7. It is submitted that there is no rationale for fixing cut-off date
01.08.2002 for grant of SSS Pension to participants of Goa Liberation
Movement, Phase-II and there is no nexus with object sought to be
achieved. All freedom fighters who are in receipt of State Pension are
eligible to SSSP Scheme.
GOVERNMENT OF INDIA & ORS. v. SITAKANT S.
DUBHASHI & ANR. [ASHOK BHUSHAN, J.]
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8. Learned counsel appearing for State of Goa submitted that
claim of respondent No.1 for grant of State Pension was rejected in
December 2002 after due enquiry and after obtaining the report from
the Deputy Inspector General of Police and other authorities. Learned
counsel for the state of Goa has also produced the original records
pertaining to claim of state pension by respondent No.1 which contains
the application made by respondent No.1 in the year 2001. The reports
obtained on the said application and decision, rejecting the claim. The
record also contains the subsequent application of respondent No.1 after
reopening of the State Pension Scheme in year 2003 and approval of
grant of pension to twenty-two freedom fighters which included the name
of respondent No.1 also w.e.f. 01.12.2007.
9. We have considered the submissions of learned counsel for the
parties and perused the record.
10. The issue to be considered in the appeal is as to whether the
respondent No.1 was entitled for grant of SSS Pension as per the scheme
dated 17.02.2003 of the Government of India and whether the High
Court had taken correct decision in allowing the writ petition of respondent
No.1 and further as to whether cut-off date as fixed in the Government
Order dated 17.02.2003 that applicant should be in receipt of State
Pension by 01.08.2002 is a valid condition.
11. For grant of State Pension, the State of Goa has framed Rules
in the year
1973 and 1988. Goa freedom fighter’s welfare Rules, 1988
contains the eligibility for grant of freedom fighters’ pension to persons
who participated in National Liberation Movement or Liberation of Goa.
Rule 2 is a definition clause, Rule 2(1) defined freedom fighters which is
to the following effect: -
“2(I). “Freedom Fighter” means any person who on account of
participation in National Liberation Movement or liberation of Goa,
had undergone the sufferings listed below:
(a) He/she had been sentenced to imprisonment for not less
than 15 days: or
(b) He/she was had suffered imprisonment for not less than
15 days (including detention as under trial prisoner; or as prisoner
in police custody for interrogation)
(c) He/she was killed in action; or
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(d) He/she was sentenced to death; or
(e) He/she died due to police or military firing or lathi charge
or hit by any instruments; or
(f) He/she died after release from Portuguese prison or Custody
provided that the death is directly attributable to ill treatment/
brutalities/torture meted out to him/her during detention or
(g) He/she lost his/her job or means of livelihood or the
whole or substantial part of his/her property due to such
participation, dismissal or removal from Government service/
semi-Government Organisation /educational institution any other
registered body duly supported by the record of the said body;
or
(h) He/she had gone underground for not less than one year
but did not suffer imprisonment if he/she was declared by the
Portuguese authorities as proclaimed offender or a warrant of
arrest was issued against him/her by the Portuguese or an
order of detention was issued against him/her by the Portuguese;
or
(i) He/she became permanently incapacitated on account of
participation in the liberation movement;”
12. Swatantrata Sainik Samman Pension Scheme, 1980, is a
scheme of Central Government for grant of pension for those who
participated in freedom movement of the country. Paragraph 3 of the
SSSP Scheme, 1980 provides for who is eligible, which is to the following
effect: -
“3. WHO IS ELIGIBLE?
For the purpose of grant of Samman pension under the
scheme, a freedom fighter is: -
(a)
A person who had suffered a minimum imprisonment of
six
months in the mainland jails before Independence. However,
ex-INA personnel will be eligible for pension if the
imprisonment/detention suffered by them was outside India.
The minimum period of actual imprisonment for eligibility
of pension has been reduced to three months, in case of
women and SC/ST freedom fighters from 01.08.1980.
GOVERNMENT OF INDIA & ORS. v. SITAKANT S.
DUBHASHI & ANR. [ASHOK BHUSHAN, J.]
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EXPLANATION
1.
Detention under the orders of the competent authority
will be considered as imprisonment.
2.
Period of normal remission up to one month will be
treated as part of actual imprisonment.
3.
In the case of a trial ending in conviction, under trial
period will be counted towards actual imprisonment
suffered.
4.
Broken period of imprisonment will be totalled up for
computing the qualifying period.
(b)
A person who remained underground for more than six
months provided he was:
1.
a proclaimed offender; or
2.
one on whom an award for arrest/head was announced;
or
3.
one for whose detention order was issued but not served.
(c)
A person interned in his home or externed from his district
provided the period of internment/externment was six
months or more.
(d)
A person whose property was confiscated or attached and
sold due to participation in the freedom struggle.
(e)
A person who became permanently incapacitated during
firing or lathi charge.
(f)
A person who lost his job (Central or State Government)
and thus means of livelihood for participation in national
movement.
A MARTYR is a person who died or who was killed in
action or in detention or was awarded capital punishment
while participation in a National Movement for emancipation
of India. It will include an ex-INA or ex-Military person
who died fighting the British.”
13. The eligibility under the SSSP Scheme, 1980 is, thus, entirely
different from the
eligibilities for grant of pension under the Goa Rules,
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1973 and 1988.  The applicability of SSSP Scheme, 1980 was also extended
to other movements apart from mainstream of the liberation struggle of
the country.  Paragraph 4 of the SSSP Scheme, 1980 deals with “What
are the movements/mutinies connected with National Freedom Struggle”,
which is to the following effect: -
“WHAT ARE THE MOVEMENTS/MUTINIES CONNECTED
WITH NATIONAL FREEDOM STRUGGLE
4. Apart from the mainstream of the liberation struggle the
movements/mutinies which were directed against the British
(French in case of Pondicherry and Portuguese in case of
Goa) with freedom of the country as its ultimate goal are also
treated as part of National Freedom Struggle for the purpose
of grant of pension unless any movement(s) is specifically
decided as not qualifying for the grant of Samman pension.
The Movements for merger of erstwhile Princely States
within the Indian Union after 15th August, 1947 and the
freedom struggle in the former French and Portuguese
possession in India (Colonies) are considered as part of the
National Freedom Movement for the purpose of grant of
Samman Pension under Scheme.”
14. Thus, movements/mutinies, which were directed with regard
to Portuguese in case of Goa was also covered by the said SSSP Scheme.
Thus, Freedom Fighters of the Goa, who were eligible according to the
SSSP Scheme, 1980 were also eligible to apply for SSSP Scheme, 1980.
The respondent No.1 himself had applied for grant of SSS Pension
Scheme, 1980 in the year
1982 itself as noted above.
15. Although, Goa Freedom Fighters, who fulfil the conditions under
SSSP Scheme, 1980 were eligible for grant of pension, the
Representations were received from various quarters for grant of pension
to all the participants of Goa Liberation Movement particularly to those,
who participated in second phase of movement (1954-55), which issue
was under examination by the Home Ministry.  The letter dated 19.08.2002
written to the Chief Secretary of Government of Maharashtra/Rajasthan/
Haryana/Goa/Madhya Pradesh/Uttar Pradesh clearly mentions the above
fact, which is to the following effect:-
GOVERNMENT OF INDIA & ORS. v. SITAKANT S.
DUBHASHI & ANR. [ASHOK BHUSHAN, J.]
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“No.8/10/99-FF(P)
Government of India/Bharat Sarkar Ministry of Home Affairs/Girh
Mantralaya
Freedom Fighters Division
****
Lok Nayak Bhawan, Khan Market,
Date, New Delhi, the 19 August, 2002.
To
The Chief Secretary,
Government of Maharashtra/Rajasthan/Haryana/Goa/ Madhya
Pradesh/Uttar Pradesh.
Subject: - Grant of Freedom Fighters Pension to the participants
of Goa Liberation Movement under the “Swatantrata Sainik
Samman Pension Scheme, 1980”
******
Sir,
  I am directed to say that the participants of Goa Liberation
Movement who fulfilled the eligibility criteria of “Swatantrata Sainik
Samman Pension Scheme, 1980” have been sanctioned freedom
fighters’ pension by the Central Government. However,
representations/ requests have been received from various quarters
including VIPs for grant of pension to all the participants of Goa
Liberation Movement particularly to those who participated in the
Second phase of the Movement (1954-55). This issue is under
examination of this Ministry for quite a long time.
2. You may be aware that the Second phase of the Movement
was organized in 1954-55. It is said that Portuguese Military
authorities shot dead various Satyagrahis including some batch
leaders and a large number of participants were physically pushed
back into the adjoining territories. Thus, the participants of this
Movement were never arrested, tried and punished by the
Portuguese Government and/or by the Martial Law
Court but
physically thrown back out of Goa. There is no authenticated
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record as to how many Satyagrahis were thrown back primarily
because no such records were maintained. In the absence of any
records of the sufferings of die participants, they could not be
sanctioned FF pension as they do not fulfil the eligibility criteria
laid down under the Scheme.
3. Ministry of Home Affairs is considering that the eligibility criteria
may be relaxed to provide pension under the “SSSP Scheme,1980”
to the freedom fighters of Goa Liberation Movement, Phase II
(1954-55) who have already been sanctioned pension by the State
Government by 1.8.2002. To examine this proposal further, it is
requested that the authenticated list of all those freedom fighters
(indicating details of their names, father’s name, addresses and
date of sanction of pension by the State Government) who have
been sanctioned freedom fighters pension by State Government
up to 1.8.2002 for their taking part in the above Movement, may
be sent to the Ministry of Home Affairs (Freedom Fighters
Division) urgently so that the proposal may be processed further.
Yours faithfully,
(Abdul Rashid)
Deputy Secretary to the Govt. of India”
16. The Central Government after examining the representations
received from various quarters decided to extend the SSSP Scheme,
1980 to the participants of Goa Liberation Movement.
17. The SSSP Scheme has been extended by relaxing the conditions
contained therein to the participants of Goa Liberation Movement,
Phase-II (1954-55) by Government Order
dated 17.02.2003.
Paragraph 1 of the scheme is as follows: -
“1. I am directed to refer to this Ministry’s letter of even number
dated 16th/19th August, 2002 on the above subject and to inform
you that it has now been decided to grant central pension to the
participants of 2nd Phase of Goa Liberation movement (1954-55)
who have been granted freedom fighters pension by the State
Government by 1st August, 2002, by relaxing the eligibility criteria
under the Swatantrata Sainik Samman Pension Scheme, 1980.”
18. The Scheme dated 17.02.2003 clearly provided that the Central
Pension is to be granted to the participants of the second phase of Goa
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Liberation Movement who have been granted freedom fighter pension
by the State Government by 01.08.2002. Whether the condition of cut-
off date of 01.08.2002 as fixed in the Scheme has any rationale or the
said date is arbitrary and despite not fulfilling the such condition, the
respondent is entitled for grant of pension are the main questions to be
answered.
19. We may notice that before the High Court the appellant had
not filed any reply nor gave any justification to restrict the entitlement of
pension of freedom fighters who were in receipt of State Pension as on
01.08.2002. The appellant having not filed any reply, the High Court held
that so far as the averments and prayers of the writ petitions are
concerned, there being no specific denial nor even reply filed by the
respondent, therefore, contentions and ground raised by the petitioner
need to be accepted.
20. When this case was being heard by this Bench, a query was
put to the counsel for the appellant as to what is the rationale for fixing
cut-off date 01.08.2002. By order dated 19.11.2019, parties were
permitted to file additional affidavits within two weeks and it was
thereafter the appellant has filed additional affidavit on 03.12.2019.
21. Learned counsel for the appellant has brought on record the
notes of the meeting dated 02.08.2002 chaired by Deputy Prime Minister
where cut-off date 01.08.2002 was fixed. Note contains the details of
list of freedom
fighters received from different states with regard to
freedom fighters who took part in second phase of Goa Liberation
Movement. The Government of Maharashtra had enclosed a list of 1716
freedom fighters, the Government of Rajasthan had sanctioned pension
to 24 persons. It has been noticed that total number of freedom fighters
who may be eligible from State of Maharashtra, Rajasthan, Madhya
Pradesh, Uttar Pradesh, Goa and Haryana could be approximately 3,500.
It was noticed that the scheme cannot be kept open ended and the date
fixed to consider only those freedom fighters eligible for relaxation under
SSSP Scheme who had taken part in second phase of Goa Liberation
Movement(1954-55) and who had already been sanctioned the freedom
fighters pension by the concerned State Government before a fixed date
such as 01.08.2002. It is useful to refer to paragraphs 3, 4 and 5 of the
Note: -
“3. Hon’ble Dy.PM expressed the view that a large number of
senior leaders like Prof. Madhu Dhandavate, Shri Ram Naik, Shri
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Sharad Pawar had pleaded the case of freedom fighters of Phase
II of Goa Liberation Movement and the matter was pending for
more than two years now. There was merit in granting them the
benefits of the SSS Pension Scheme in relaxation of the eligibility
criteria on similar grounds on which the relaxation was given to
freedom fighters of Dadra and Nagar Haveli. While appreciating
our apprehension that if the scheme was kept open ended, we
may be flooded with more and more applications, the Dy.PM was
of the view that we may fix a date and consider only those freedom
fighters eligible for the relaxation under the SSS Pension Scheme
who had taken part in Phase II of the Goa Liberation Movement
in 1954-55 and who had already been sanctioned the freedom
fighters pension by the concerned State Governments before a
fixed dated such as 01.08.2002.
4. When the delegation led by Prof. Dhandavate called on the
Dy.PM and handed over the representation as at FR, Dy.PM asked
them about how many freedom fighters from which States would
be eligible for the Pension in case relaxation under the Scheme
were provided. It was pointed out by the delegates that there
would be approximately 3500 freedom fighters who may become
eligible from the States of Maharashtra, Haryana, Rajasthan,
Madhya Pradesh, Uttar Pradesh and Goa. The figure excluded
the freedom fighters from Karnataka (2225) who had been
sanctioned pension by the State Government but whose pension
was subsequently
cancelled by the Government of Karnataka in
1995.
5. After discussions, Dy.PM desired that we may take action as
under: -
(i) Provide relaxation under the SSS Pension Scheme, 1980 to
the freedom fighters of Goa Liberation Movement, Phase II
(1954-55) who had already been sanctioned Pension by the
State Governments of Maharashtra, Rajasthan, Haryana,
Madhya Pradesh, Uttar Pradesh and Goa by 01.08.2002.
(ii) We may write to the State Governments concerned to send
us a list of such freedom fighters, immediately, However, such
lists should be confined to cases where the freedom fighters’
pension had been actually sanctioned by the State Government
by 01.08.2002.
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(iii) The approximate figure of the freedom fighters eligible for
this relaxation is 3500. Eligibility criteria for the grant of SSS
Pension will be the grant of freedom fighters’ pension by the
State Government by 01.08.2002 for his having taken part in
the Goa Liberation Movement during the years 1954-55.”
22. Subsequently, the cabinet approved the scheme and scheme
dated 17.02.2003 was issued by the Government of India incorporating
the cut-off date to 01.08.2002.
23. From the material which has been brought on record, it does
appear that Government of India deliberated on the issue of cut-off date
and the cut-off date was consciously fixed for extending the benefit of
SSSP scheme to participants of Goa Liberation Movement, Phase-II.
The eligibility under the SSSP Scheme, 1980, is entirely different from
the eligibility of the State pension under the Goa Rules. Goa was liberated
in 1961. State has framed the rules initially in 1973 and thereafter in
1988. Freedom Fighters were sanctioned pensions in aforesaid Goa Rules
at least after 1973. The question of extension of SSSP scheme to the
participants of Goa Liberation, Phase-II was being considered by the
Central Government from the year 2000 and ultimately, it was extended
by Scheme dated 17.02.2003. Already, more than forty years have been
passed for Goa Liberation and more than 30 years have been passed for
start of sanction of pension by the State of Goa. SSSP
Scheme, 1980,
had been extended to Goa Liberation Movement, Phase-II by relaxing
the conditions which were there for grant of SSS Pension Scheme, 1980.
When a benefit is granted in relaxation of Scheme, it is open for the
Government to put conditions for eligibility.
24. In view of the above, we are of the considered opinion that
there is a rationale for extending the Scheme with a cut-off date. The
submission of learned counsel for respondent No.1 is that there was no
nexus with the object sought to be achieved in fixation of cut-off date
i.e. 01.08.2002. Learned counsel for the respondent No.1 submits that
when the object of SSS Pension Scheme is to grant the benefit of pension
to all Freedom Fighters, who participated in the Goa Liberation Movement,
there is no intelligible differentia between Freedom Fighters, who were
granted State pension by 01.08.2002 and those, who were granted pension
subsequent to 01.08.2002.  Elaborating the argument, it is further submitted
that in any view of the matter in the Cut-off date, there is no nexus with
the object sought to be achieved. It is submitted that due to there being
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no intelligible differentia and there being no nexus with the object sought
to be achieved, the cut-off date 01.08.2002 was clearly arbitrary and
liable to be struck down.
25. We have already noticed that the SSSP Scheme, 1980 provided
for eligibilities for Freedom Fighters to make an application under the
SSSP Scheme, 1980. Freedom Fighters of the Goa were also included
and those who fulfil the conditions therein were entitled to grant of the
pension. In the present case, we are concerned with the SSSP Scheme,
1980. The object of the Scheme was to sanction pension under the
Scheme, 1980, who fulfil the eligibilities as per the Scheme. The State
pension for which Scheme and Rules have been formulated by different
States including the State of Goa were on different eligibilities and the
mere fact that a person is eligible or entitled to a State pension does not
ipso facto makes him eligible for the SSSP Scheme, 1980. The object of
the SSSP Scheme, 1980 was to grant the Freedom Fighters Central
Pension to those, who fulfil the eligibility which object was clearly fulfilled
in including the Goa Liberation Movement also under the Scheme. As
noted above, representations were received from various quarters to
extend the SSSP Scheme, 1980 to participants of Goa Liberation
Movement particularly, those, who participated in the Second phase of
the Movement (1954-55). The Central Government decided to relax the
conditions of eligibility under SSSP Scheme, 1980 by
Scheme dated
17.02.2003 and while relaxing the Scheme cut-off date 01.08.2002 was
fixed for making eligible the participants of Goa Liberation Movement.
We have already noticed the rationale for fixing the cut-off date, which
was fixed after due deliberation and consideration of relevant facts.
26. The submission of learned counsel for the respondent No.1 is
that there was no nexus with the object sought to be achieved by fixing
the cut-off date 01.08.2002. As noticed above, the object of SSSP Scheme,
1980 was to grant Central Pension to those who were eligible under the
said Scheme. The Freedom Fighters of the Goa Liberation Movement
were already included in the Scheme, 1980, who were eligible as per the
said Scheme. Thus, with regard to Freedom Fighters of Goa Liberation
Movement, the Scheme, 1980 covered them and the object was to grant
only those Freedom Fighters of Goa Liberation Movement, who fulfilled
the eligibility of SSSP Scheme, 1980. When Scheme was relaxed and
extended to participants of the Goa Liberation Movement Second Phase,
relaxation was granted in the eligibility as provided in the SSSP Scheme,
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1980 with the condition that those who are in receipt of State pension by
01.08.2002 should be extended the benefit of relaxation. The Scheme
was not an open-ended Scheme and relaxation was granted to a particular
category of persons, who were in receipt of the State pension by
01.08.2002. The relaxation granted by order dated 17.02.2003 cannot
be said to be the object of the Central Government. The object under
SSSP Scheme, 1980 was always and still is to grant Freedom Fighters
pension to those who fulfil the eligibility of SSSP Scheme, 1980. The
submission of the learned counsel for the respondent No.1 that object of
SSSP Scheme, 1980 was to grant central pension to all those, who are in
receipt of the State pension cannot be accepted. By relaxing, the SSSP
Scheme, 1980 for a limited category, the object of the main Scheme
shall not be lost nor those who are not covered by relaxed conditions can
claim right to grant of SSSP Scheme, 1980. We, thus, are of the view
that the Scheme dated 17.02.2003 has intelligible differentia and also
nexus with the object. When relaxation is granted to a limited category,
the others, who are not covered by the Scheme cannot claim any violation
of right of equality. Right of equality can be claimed only by those who
fulfil the eligibilities under the SSSP Scheme, 1980.
27. The submission which has further been pressed by the counsel
for respondent No.1 is that when ultimately the
state has accepted the
respondent No.1 was entitled for State Pension, although, in the year
2008, there is no justification for denying him the benefit. It is submitted
that respondent No.1 had applied for grant of State Pension much before
01.08.2002 and if the State had wrongly rejected it earlier, the claim of
the respondent No.1 cannot be prejudiced.
28. We have carefully examined and looked into the materials
before us as well as the original records. In the subsequent grant of
pension to the respondent No.1 in the year 2008, there is no reference or
claim that earlier rejection of claim of respondent No.1 was unjustified
or was wrong. The scheme was reopened in the year 2003 by the State
of Goa and in response to the reopening of the scheme, applications
were received and after scrutinizing the claim of respondent No.1
sanctioned w.e.f. 01.12.2007. The Sanction of the Scheme granted to
the respondent from 01.12.2007 cannot be read to mean that he was
sanctioned from the date when his earlier application was rejected or
from the date, he made the application.
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29. The High Court has referred to and relied on the judgment of
this Court in Mukund Lal Bhandari and Others Vs. Union of India
and Others, (1993) supp. 3 SCC 2. In the above case, one of the
grounds for rejecting the application for grant of SSS Pension was that
the petitioner had made an application after the date for making the
application as specified in the scheme expired. This Court held that the
date prescribed inviting the claim was more of the matter of administrative
convenience than as a rigid time limit. In paragraph 7 of the judgment,
following has been laid down by this Court: -
“7. As regards the contention that the petitioners had filed
their applications after the date prescribed in that behalf, we
are afraid that the Government stand is not justifiable. It is
common knowledge that those who participated in the freedom
struggle either at the national level or in the erstwhile Nizam
State, are scattered all over the country and most of them may
even be inhabiting the remotest parts of the rural areas. What
is more, almost all of them must have now grown pretty old, if
they are alive. Where the freedom fighters are not alive and
their widows and the unmarried daughters have to prefer
claims, the position may still be worse with regard to their
knowledge of the prescribed date. What is more, if the Scheme
has been introduced with the genuine desire to assist and
honour those who had given the best part of their life for the
country, it ill
behoves the Government to raise pleas of
limitation against such claims. In fact, the Government, if it is
possible for them to do so, should find out the freedom fighters
or their dependants and approach them with the pension
instead of requiring them to make applications for the same.
That would be the true spirit of working out such Schemes.
The Scheme has rightly been renamed in 1985 as the Swatantra
Sainik Samman Pension Scheme to accord with its object. We,
therefore, cannot countenance the plea of the Government
that the claimants would only be entitled to the benefit of the
Scheme if they made applications before a particular date
notwithstanding that in fact, they had suffered the
imprisonment and made the sacrifices and were thus otherwise
qualified to receive the benefit. We are, therefore, of the view
that whatever the date on which the claimants make the
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applications, the benefit should be made available to them.
The date prescribed in any past or future notice inviting the
claims, should be regarded more as a matter of administrative
convenience than as a rigid time-limit.”
30. The date for making an application in the Scheme, as in the
above case the last date for application for considering the freedom
fighter’s pension may not be a rigid rule as rightly held by this Court in
Mukund Lal Bhandari’s case but present is a case where SSSP Scheme
has been extended by relaxing the scheme to Goa Liberation Movement,
Phase-II, by fixing a cut-off date for consideration under the scheme
which is a condition for grant of SSS Pension. The judgment in Mukund
Lal Bhandari is thus distinguishable and cannot be pressed in service
in facts of the present case.
31. As noted above, before the High Court appellant could not file
reply and bring the relevant facts and materials. The appellant ought to
have been careful and produced relevant materials before the High Court
for its consideration, but given opportunity by this Court, relevant materials
have been brought on the record by way of additional Affidavit which
materials we have perused. The appeal is being decided after taking into
consideration the relevant materials brought on record.
32. We thus are of the view that there was no error in rejecting
the claim of respondent No.1 for grant of SSSP scheme as communicated
by
communication letters dated 16.11.2009 and 13.11.2014. The
Government Scheme dated 17.02.2003 also did not suffer from any
infirmity.
33. In result, the appeal is allowed. The writ petition of the
respondent No.1 stands dismissed.
Ankit Gyan
Appeal allowed.