Strict Interpretation of requirements prescribed needs to be met to avail pension under the Swatantrya Sainik Sanman Pension Scheme, 1980 : Allahabad High Court

 on 17 08 2021 on 17 08 IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDE BENCH AT AURANGABADWRIT PETITION NO. 8029 OF 2021Smt. Rukhminbai wd o Asaram Kale Age 81 years Occu. Nil R o. Sambhaji Chowk Behind Hotel Sagar towards North Bus stand Khalwadi Paithan Tq. Paithan Dist. Aurangabad....Petitioner. Versus 1.The State of Maharashtra Through its Principal Secretary General Administration Department Mantralaya Mumbai 32.2.The High Power Committee Freedom Fighters Cell 19th Floor General AdministrationDepartment Mantralaya Mumbai 32 Through its Member Secretary.3.The Desk Officer General Administration Department New Administrative Building Freedom Fighters Cell 19th Floor Mantralaya Mumbai 32.4.The Collector Aurangabad Dist. Aurangabad....Respondents. Mr. V. S. Panpatte Advocate for petitioner.Mr. P. K. Lakhotiya A.G.P. for respondents. CORAM :S.V. GANGAPURWALA & R.N. LADDHA JJ. on 17 08 2021 on 17 08 W.P. No.8029 20212RESERVED ON :02 08 2021PRONOUNCED ON : 13 08 2021JUDGMENT :Government ofMaharashtra. It is claimed by the petitioner that by letters dated 10September 1998 10 April 2008 and 21 June 2015 the Members of theParliament and Member of Legislative Assembly respectively had alsorecommended the claim of her husband. Unfortunately on 5 April 2017 her husband died. The petitioner then obtained all relevantdocuments sought legal advice and made an application dated 9October 2020 to the respondent No 3 appending therewith aCertificate purportedly issued by Police Patil of village Nandar TaluqaPaithan dated 7 June 1996 which was available with her and alsosubmitted the Commendatory Affidavits of veteran freedom fighterswith their Certificates of imprisonment.(d)However her claim for pension came to be turned down on 17 08 2021 on 17 08 W.P. No.8029 20215by relying on Govt Resolution dated 2 June 2016 by the order dated4 November 2020. According to the petitioner the decision taken bythe State Govt was erroneous as it failed to consider the materialplaced on record.4.We have heard Mr. V. S. Panpatte learned counsel for thepetitioner and Mr. P. K. Lakhotiya learned A.G.P. for the respondents.5.Mr. Panpatte learned counsel for the petitioner submitsthat late Asaram Kale had participated in Hyderabad LiberationMovement and on account of such participation he had to suffervarious losses and hardships. Necessary documentary evidence inproof thereof had been furnished along with the application. Theconcerned Authority however did not appreciate the documentsproduced on record in their proper perspective. Since the deceasedhusband of petitioner met the criteria laid down in the GovernmentResolution dated July 4 1995 the District Gaurav Committee had alsorecommended the proposal. The case of the petitioner’s husband underthe Scheme was required to be determined on the basis ofprobabilities. He further submits that the case of the petitioner hasbeen disposed of by ignoring the mandate of law and the Scheme. Theimpugned orders are grossly desultory and hence not compatible with on 17 08 2021 on 17 08 W.P. No.8029 20216various decisions. He relied on the following cases:(i)Mukund Lal Bhandari and Ors. Vs. Union of India and Ors. AIR 1993 SC 21278 SCC 8Tukaram Ramji Koli Vs State of Maharashtra & Ors. 1999(3) Mh.L.J. 735 and(viii) Judgement in Writ Petition no. 46316 Sarubai w o Narayansinh Thakur Vs The State of Maharashtra & Ors. Dated 04.3.2020.6.In the above premise the learned counsel for thepetitioner prayed for quashing and setting aside the impugned orders communications dated 12 May 1999 and 04 November 2020respectively further prayed for grant of pensionary benefits under the on 17 08 2021 on 17 08 W.P. No.8029 20217Scheme to the petitioner.7.Mr. P. K. Lakhotiya learned A. G. P. appearing for therespondents on the other hand submitted that the husband of thepetitioner had applied for grant of pension in the year 1994 the claimwas considered and rejected by the concerned Authority. It wascommunicated to him on 12 May 1999 and the said order had becomefinal. The order was not challenged. After an enormous delay of 22years of the rejection of deceased Asaram’s claim this petition is filed.According to him the petition suffers from delay and latches. Again the documentary evidence filed by the husband of the petitioner didnot meet the conditions laid down in the Scheme and GovernmentResolution dated July 4 1995. The mere fact that some certificateshad been submitted or recommendations had been made would notentitle the husband of the petitioner to pensionary benefits. Thebenefit accorded by the said Government Resolution wascircumscribed by the conditions laid down in the said Scheme and theGovernment Resolution dated July 4 1995.8.As a second limb the learned A. G. P. invited our attentionto the Government Resolution dated June 2 2016 and submitted thatthe Government has taken a decision not to sanction the pensionary on 17 08 2021 on 17 08 W.P. No.8029 20218benefits to a freedom fighter after his death even if his proposal wasunder consideration at the time of his death.9.Before adverting to the submissions canvassed across theBar it would be appropriate to have a look at the GovernmentResolution dated July 4 1995. The said Government Resolution enliststhe documents on the production of which a person could substantiatehis participation and involvement in the freedom movement. Theconditions enumerated in the said Government Resolution are asunder :“(1) The applicant should submit a certificate statingas to what type of problems and hardships he hadundergone following his participation in the freedommovement:(a) He had to remain away from his house orfamily.(b) He had to give up education or had beenexpelled from the educational institution.(c) He was so severely beaten up by the police thathe suffered a disability.(2) The certificates of two freedom fighters of the areawho were convicted for a minimum of two years or whowere declared absconding or who remained absconding forat least two years. These certificates should be accompanied on 17 08 2021 on 17 08 W.P. No.8029 20219with the copies of Jail Certificates showing incarceration orproclamation of absconding as well as duly verified affidavitsof the freedom fighters issuing the certificates.(3) Certified copy of the Government record of thatperiod if any available regarding the fact that he remainedunderground.(4) A copy of the newspaper in which the news item waspublished containing information about the name of theapplicant being an underground freedom fighter.(5) While submitting their opinion the District GauravCommittee shall clearly mention the criteria in respect of thesaid opinion.”10.The aforesaid Government Resolution itself mentions thedocuments which are required to be produced along with theapplication. Upon perusal of record it is seen that the documentaryevidence filed by the husband of the petitioner did not meet any of thecriteria prescribed by the said Government Resolution. It is the case ofthe petitioner that her deceased husband had made an application onNovember 24 1994 for grant of pension under the Scheme and hadalso appended therewith a certificate of Camp Incharge PralhadraoKulkarni and affidavits of veteran freedom fighters Keshav Ware andGopalrao Chavan respectively. However upon perusal of letter dated on 17 08 2021 on 17 08 W.P. No.8029 202110October 17 1997 addressed to the Deputy Secretary GAD Mumbai bythe office of the Collector Aurangabad it is seen that deceased Asaramhad submitted two applications dated November 24 1994 andDecember 6 1994 which were in the prescribed format for grant ofpension. The said applications were accompanied by a photocopy ofhis own affidavit dated October 26 1994 his Age Certificate issued bythe Civil Surgeon and a photocopy of affidavit of veteran freedomfighter Keshav Tulshiram Ware only. Prior to rejection of his pensionclaim vide communication dated December 30 1994 respondent No.4had called upon Asaram to submit the following documents:(a)Proof of declaration regarding proclaimed offender under Cr.P.C.was a party had refused to place implicit relianceon bare affidavits. In this context useful reference may also be madeto the Judgement of the Hon’ble Supreme Court in the case of State ofMaharashtra Vs. Namdeo 14 SCC 225 wherein the Hon’bleSupreme Court in paragraphs 20 and 21 observed as under :"20. In the present case as already noted above except theaffidavits of the two freedom fighters no other material isplaced to substantiate the claims. Approach of the HighCourt accepting the version of the respondents merely onaffidavits ignoring the requirements of the Scheme on 17 08 2021 on 17 08 W.P. No.8029 202113altogether is fraught with dangers and would be prone tomisuse and abuse. We can appreciate that direct evidence ofhaving participated in the freedom movement which eventsoccurred almost 70 years ago may not be available andtherefore it should not be deemed that this Court is insistingon such direct evidence in order to enable an applicant tosucceed in his claim. At the same time the GovernmentResolution dated 4 7 1995 enlists the documents on theproduction of whereof the respondents could substantiatetheir participation and involvement in the freedommovement. In a given case if there is some cogent materialon the basis of which satisfaction can be arrived at about theparticipation in the agitation the Government may relax theother requirements. However it would be for the StateGovernment to exercise such a discretion in a given case ifit is otherwise fully satisfied that the materials produceddemonstrate that the applicant is a freedom fighter.21. In the present case the Government rejected theclaim by passing a speaking order to the effect that certaindocuments required under the Government Order dated 4 7 1995 had not been furnished. Once the claim is rejected onthese grounds and such an order is in consonance with therequirement of the Scheme dated 4 7 1995 no fault can befound with such an order particularly when no case fordispensation of these requirements was made out by therespondents. The claims were based only on the affidavitswith no other material. We are of the opinion that if claimsare allowed merely on such affidavits that would amount to on 17 08 2021 on 17 08 W.P. No.8029 202114giving a complete go by to the requirements of the Scheme.This cannot be allowed. We are therefore of the opinionthat the High Court could not have invalidated the orders ofthe Government.”12.It is therefore clear that pension under the Scheme canonly be sanctioned upon proof as prescribed by the Scheme and in noother manner. As long as such proof is not available the benefit of theScheme cannot be conferred upon the applicant. This aspect ishighlighted in the cases of West Bengal Freedom Fighters’Organization Vs. Union of India and Ors. AIR 2004 SC 5143 Union ofIndia Vs. Bikash R. Bhowmik and Ors. 7 SCC 722 and Unionof India Vs. A. Alagam Perumal Kone and Ors. AIR 2021 SC 1212. Inthe instant case the concerned Competent Authority had rejected theclaim of the husband of the petitioner on the ground that theapplication was not supported by the requisite documents.13.It further appears from the record that the husband of thepetitioner made an application for grant of pension as far back as inthe year 1994. His claim under the Scheme was however rejected inthe year 1999. Thereafter for about a period of 18 long years he wassimply content with forwarding a communication dated 16 February2011 threatening to undertake fast unto death in front of the on 17 08 2021 on 17 08 W.P. No.8029 202115Mantralaya. Again on 17 February 2014 & 22 April 2015 he madewritten representations to buttress his claim by attempting to furnishreasons for non compliance of conditions prescribed by theGovernment Resolution dated 4 July 1995. We are of the firm viewthat the reasons which had been put forth by deceased Asaram theoriginal claimant for non compliance of the mandatory requirementsas laid down by the Government Resolution dated 4 July 1995 werenot valid and adequate to exempt him from the said conditions.Moreover there is no such provision of exemption in the saidGovernment Resolution. On the contrary to claim pension under theScheme one has to furnish the required proof as contemplated by theScheme & unless a person fulfills the eligibility criteria as prescribed inthe Scheme he or she cannot claim such pension as a matter of right.14.There is yet another vulnerability in the claim of thepresent petitioner in that according to her the fact of rejection of theapplication for pension made by her deceased husband Asaram waslearnt by him in the year 2014. In the first place there is nothing inthe entire petition to explain as to how and in what manner deceasedAsaram came to know in the year 2014 that his application dated 24November 1994 was rejected in the year 1999. His representationsdated 17 February 2014 and 22 April 2015 do not even contain a on 17 08 2021 on 17 08 W.P. No.8029 202116whisper that he had come to know of the rejection of his application ofthe year 1994 for the first time in the year 2014. This contention of thepetitioner thus has no legs to stand upon.15.Furthermore the submission is required to be appreciatedin the backdrop of the fact that the impugned order dated 12 May 1999 came to be challenged after an inordinate delay of 22 long yearsof rejection of the claim of the petitioner’s husband who incidentally during his life time did not choose to challenge the same before thisCourt. In any case the petitioner herein has no locus standi to lay aclaim to pension under the Scheme once her deceased husband’s claimto the same was rejected by the concerned Authority.16.Again the Government Resolution dated June 2 2016extinguishes the claim of a dead Applicant and his or her spouse orheirs. The relevant portion of the aforesaid Government Resolutionreads thus:“1.In a case sanction of Freedom Fighter pensionis under consideration of State Government and adecision as to sanction or rejection of the pension is nottaken and the applicant dies pending such decision hisapplication shall not be considered. On the death of theapplicant the spouse or heirs shall not be entitled to on 17 08 2021 on 17 08 W.P. No.8029 202117arrears in his name.2.In a case the State Government has taken adecision to reject the Freedom Fighter Pension andthereafter the applicant dies then the spouseof the applicant cannot apply for review of thedecision[S.V. GANGAPURWALA J.]ssc 

Summary: The freedom for Indian Independence came at a great cost at the sacrifices of the freedom fighters. The government recognizes and honours those freedom fighters, however those government schemes shouldn’t be exploited. This was held in the judgment passed by a two bench judge comprising HON’BLE JUSTICES S.V. GANGAPURWALA &amp; R.N. LADDHA, in the matter Smt. Rukhminbai V. The State of Maharashtra (WRIT PETITION NO. 8029 OF 2021), dealt with an issue where the petitioner filed a writ petition claiming to be entitled to the benefits of Pension which, according to her, should have lawfully accrued to her deceased husband Asaram, during his life time, under the “Swatantrya Sainik Sanman Pension Scheme, 1980. The petitioner is the widow of Asaram Kale, who had been claiming himself to be a freedom fighter. The petitioner claims that her husband and upon his death, she herself is entitled to the benefit of the Scheme. According to the petitioner, her husband had actively participated in the Hyderabad Liberation Movement and as a consequence thereof had suffered various losses and hardships. After her husband’s death, her claim for pension came to be turned down by relying on Govt Resolution dated 2 June 2016. According to the petitioner, the decision taken by the State Govt was erroneous as it failed to consider the material placed on record. The counsel for the petitioner prayed for quashing and setting aside the impugned orders and further prayed for grant of pensionary benefits under the scheme to the petitioner. Learned A. G. P. appearing for the respondents, on the other hand, submitted that the husband of the petitioner had applied for grant of pension in the year 1994; the claim was considered and rejected by the concerned Authority. He also claimed that after an enormous delay of 22 years of the rejection of deceased Asaram’s claim, this petition is filed. According to him, the petition suffers from delay and latches. Again, the documentary evidence filed by the husband of the petitioner did not meet the conditions laid down in the Scheme and Government Resolution dated July 4, 1995. The mere fact that some certificates had been submitted or recommendations had been made would not entitle the husband of the petitioner to pensionary benefits. The benefit accorded by the said Government Resolution was circumscribed by the conditions laid down in the said Scheme and the Government Resolution dated July 4, 1995. After hearing both the parties, the Hon’ble Jharkhand High court dismissed the petition as the   Court held that to claim pension under the Scheme, one has to furnish the required proof as contemplated by the Scheme &amp; unless a person fulfills the eligibility criteria as prescribed in the Scheme, he or she cannot claim such pension as a matter of right. It also believed that the petitioner’s husband, who, incidentally, during his life time did not choose to challenge the same before this Court. In any case, the petitioner herein has no locus standi to lay a claim to pension under the Scheme once her deceased husband’s claim to the same was rejected by the concerned Authority. Click here to view judgement