JUDGMENT
N.N. Mathur, J.
1. This group of 37 petitions has been filed under Article 226 of the Constitution of India seeking direction to the respondent to sanction pension under Freedom Fighters’ Pension Scheme, 1980, formerly known as Freedom Fighters’ Pension Scheme, 1972. Since the primary question of consideration arising for determination is same and similar, this group of petitions is disposed of by this common judgment.
2. In the year 1972, on the eve of the Silver Jubilee of the Independence Day, central scheme for grant of pension to freedom fighters and their families was introduced by the Government of India in the name of Freedom Fighters Pension Scheme, 1972. This scheme commenced with effect from 15-8-1972 and provided for grant of pension to living freedom fighters and their families if they are no more and to the families of martyrs. The minimum persion sanctioned to the freedom fighters was Rs. 200/- per month and for their families varied from Rs. 100/- to Rs. 200/- in accordance with the size and number of eligible dependants. The benefit of the Pension Scheme has been extended to all freedom fighters. The benefit of the scheme was available only to the persons whose annual income does not exceed Rs. 5000/-. This scheme was liberalised with effect from 1-8-1980 and the benefit of the scheme was extended to all the freedom fighters as a token of ‘Samman’. Thus, the 1980 Pension Scheme is also known as ‘Samman Scheme’.
3. The maximum quantum of pension was also increased from Rs. 200/- to Rs. 300/- for freedom fighters and the minimum was enhanced from Rs. 100/- to Rs. 200/- to widows of the late freedom fighters with an addition of Rs. 50/- per month per each unmarried daughter with a maximum of Rs. 300/- per month. Clause IV of the Scheme provides eligibility for the ‘Samman Pension’ as under:
(a) a person who has suffered minimum imprisonment of six months. In case of women and persons belongs to SC/ST categories, me actual period of imprisonment has been reduced to three months;
(b) a person who has remained underground for more man six months provided he was a proclaimed offender or one whom against award for arrest warrant was announced or one whose detention order was issued but not served;
(c) a person interned in his home or externed from his District provided for me period of externment was not less than six months;
(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 the firing or lathi-charge;
(f) a person who lost his job from Central or State Government and thus means of livelihood is affected after participation in national movement.
This scheme provides that person who considers thus eligible for ‘Samman Pension’ under the scheme should apply in duplicate in the prescribed application form. Such application form is required to be accompanied by required documents as proof of claim of suffering. The second copy is required to be sent to the Deputy Secretary to the Government of India, Freedom Fighters’ Division, Ministry of Home Affairs. Clause 9 provides the manner of proving the claim. In order to establish a claim on the ground of imprisonment/detention, a certificate from the concerned jail authorities, District Magistrate, or the State Government is required to be produced. However, in case of non-availability of such certificate of imprisonment or the detention can be established alternatively by a certificate of co-prisoers or certificate from sitting M.P. or MLA or from ex-MP or ex-MLA certifying the jail period.
4. Under the scheme, claim on the basis of remaining underground is required to be established by documentary evidence by way of Court’s/Government order proclaiming the applicant an offender announcing an award of his/her for his/her arrest or order of his detention. Alternatively if such official record is not available, the fact of remaining underground can be established by a certificate from a veteran freedom fighter, who himself has undergone imprisonment for five years or more. At this stage it is pointed out by the learned Counsel for the petitioner Dr. Sonia Hurra that by a Notification of the Ministry of Home (Freedom Fighters’ Division), the said period of sentence of prominent freedom fighter who certifies the veteran freedom fighter as referred to in Sub-clause 2 of Clause ‘b’ of Clause 9 in the scheme has been reduced from 5 years to 2 years. Thus, in view of the aforesaid Notification the imprisonment of 5 years can be read as imprisonment of 2 years subject to further verification by concerned authorities.
5. This scheme further provides that the claim of the applicant shall be scrutinised by the State Government in consultation with State Advisory Committee after receipt of the said verification and entitlement to pension report, the claim of the applicant is scrutinised and if found to be eligible, the pension is to be granted.
6. The scheme has been further liberalised by circular dated 30th September 1985 and the quantum of monthly pension admissible to the freedom fighters and widows has been raised to Rs. 500/.
FACTS
Ordinarily, while deciding group of petitions by common judgment, it is neither necessary nor desirable to burden the judgment by stating the facts of each petition, but I propose to proceed differently for compelling reasons. It is unfortunate that while the pension scheme for Swatantra Sainanis was framed in 1972, i.e., 22 years back on the eve of 25th Anniversary of Independence of the country, the petitioners are moving from pillar to post for pension for their participation in the freedom movement. At the first instance, the State Government has not even acknoledged the receipt of the application, inspite of the fact that there is definite averments in the petitions that they submitted application for pension under the Scheme of 1980. Many of them have produced letters of Government. It appears that the State Government took up the applications in a most casual manner and in routine rejected them giving stock reason “Lack of sufficiency of proof. In view of it, I propose to examine each petition and to state in brief the ground of claim, and material just to indicate sufficiency of proof.
In Special Civil Application No. 2934 of 1994, respondent Union of India has filed detailed reply and petitioner has also filed rejoinder. The pleadings are complete in this case. Thus, it would be convenient to state facts of this petition in detail, to acquaint with the case of respective parties.
SPECIAL CIVIL APPLICATION No. 2934 of 1994
This petition has been filed by Santokben Ambalal Ratnabhai, widow of late Ambalal Ratnabhai. The petitioner says that her husband late Shri Ambalal Ratnabhai was working as Head Master in Shahpur Shala No. 2 under the Ahmedabad Municipal School Board and as he was told that the police was after him, he went underground. The petitioner’s husband continued underground activities and was hiding himself to avoid arrest, and therefore, he could not attend the job. Due to this he was dismissed from the job. During that period, he along with his family sufferred financially, mentally and also physically. However, being a patriot, he continued to fight for the nation. As he lost his job because of his participation in the freedom movement, he was reinstated as a mark of honour in the year 1946. However, he was not paid the salary for the period for which he remained underground. She has further stated that her late husband was President of Swatantra Sena along with Shri S. Bharati, who is receiving pension both from the Central Govt., and State Government. She has placed on record letters of late Prime Minister Mrs. Indira Gandhi for consideration of grant of pension to him/her and to his family. She complains that in spite of all efforts made by her late husband, neither he nor now even she is getting the pension. According to the petitioner, she has in possession the identity card of her late husband as being a Freedom Fighter which entitles her to pension. She says that her late husband had submitted applications for the pension under the old scheme, i.e., Freedom Fighter’s Pension Scheme, 1972 (hereinafter referred to as Scheme of 1972). The petitioner’s husband, in support of the claim, had filed the certificate of permanent Freedom Fighters who themselves had been in jail and participated in national freedom struggle, viz., S/Shri Anandibhai Shivprasad Thakore, Jayantibhai Thakore, Hiralal Parmar etc. which are annexed to the petition as Annexures 4, 6, 8, 11, 12 and 14. It appears that by communication dated nil, the Under Secretary, Government of India had informed late Shri Ambalalji that as he was reinstated in service his case was not covered by the Swantrata Sainik Pension Scheme. There is another letter dated 25-6-1993 from the Ministry of Home Affairs addressed to Shri Hiralal R. Parmar, Member of Parliament, wherein the Government had reiterated its stand that as Shri Ambalalji was reinstated, his case was not covered under this Pension Scheme.
In the reply of Union of India, it is stated that the Freedom Fighters’ Pension Scheme is not a programme of compensation. It is also stated with respect to all the petitions that neither the applicants had made any reference to the Ministry directly nor any revised report had been received from the State Government till the date of filing of the reply. However, it is submitted that the respondent-Union of India is prepared to treat the present writ petition as application and take a decision as per the guidelines laid down by the Supreme Court in the case of Mukund Bhandari v. Union of India . So far as the petition filed by the widow of late Shri Ambalalji is concerned, it is admitted that her husband had applied for grant of pension in 1974 under the old pension scheme of 1972. However, his application was rejected as his annual income was found to be above Rs. 5,000/-. Under 1972 Scheme, a person whose annual income was below Rs. 5,000/- was only entitled to the benefit. It is further stated that the petitioner did not submit any application or representation under the 1980 Scheme. So far as the loss of job is concerned, it is stated that the suffering of the husband of the petitioner was purely voluntary. It is also stated that the petitioner did not receive warrant of arrest against him on account of which he was absconding. Her case of pension on the ground of loss of job of her late husband cannot be considered as he was reinstated in job. The suggestion of the respondent is given in para 17 which reads as under:
17. In view of submissions made above, it is submitted that since the applicant has not applied under 1980 Scheme, it was not possible for this Ministry to reconsider his case. However, as the petitioner had filed a writ petition in the Hon’ble Court without sending his case to this Ministry through the State Government, this Ministry is prepared to reconsider the claim of the petitioner afresh subject to:
(a) her claim for pension being recommended by the State Government;
(b) her producing documentary evidence as per provisions of the Scheme to indicate that the underground suffering, if there were any, was because of a warrant of arrest and/or any other executive action of the Government and was not voluntary, and
(c) The State Government certifying that the school in which the petitioner’s husband was teaching was a Government School or a School run by a local body of the Government and not a private school run by a private body/society.
A short reply has also been filed by the State Government stating, inter-alia that State Government has not to decide the applications under the Scheme of 1980, but it is for the Central Government which is competent authority to decide such applications.
S.C.A. No. 2667 of 1994
The petitioner-Karsanji C. Makwana says that he was working as Head Master in Shahpur Shala No. 2 under Ahmedabad Minicipality School Board. When late Shri Mahatma Gandhi called for Quit India movement, he in the group of 126 Teachers joined Azad Shahar Subhshri Jayantibhai Thakore Yojana under the leadership of Shri Jayantibhai Thakore and Virubhai Bhailalbhai Desai. During the said period he had to go underground since some of the members of the Quit India Movement were arrested by the police. Due to his non-presence in School, he was dismissed from the job. He had to remain without job for long 4 years from 1942 to 1946. During that period he suffered financially mentally and also physically. However, being a true patriot, he continued to fight for the Nation. He was taken back in job in the 1946 as a token of honour. However, he was not paid salary for the period of his absence. The petitioner had submitted an application for grant of pension under the 1972 Scheme. But the same was rejected. The pension was refused to the petitioner as his annual income was above Rs. 4999/-. The petitioner in support of his claim has filed the recommendation list of his fellow freedom fighters. The grievance of the petitioner is mat he has not been paid pension even under the 1980 Pension Scheme. He claims pension on the ground that he lost his job as well as on the ground that he had gone underground. The petitioner has placed on record a number of documents to establish that he took part in freedom movement and he had gone underground as well as he had lost his job. The petitioner has also produced a letter of the Collector, recommending list of persons who remained underground including the petitioner’s name.
SCA No. 2668 of 1994
The petitioner – Laljibhai P. Parmar says that he was working as Head Master in Shapur Shala No. 2 under Ahmedabad Minicipality School Board. On the same ground as mentioned in SCA No. 2667/94, the petitioner was dismissed from the job and he had to remain without job for long 4 years from 1942 to 1946. During that period he stuffered financially, mentally and also physically. However, being a true patriot, he continued to fight for the Nation. He was taken back in job in the year 1946 as a token of honour. However, he was not paid the salary for the period of his absance. The petitioner had submitted an application for grant of pension under the 1972 Scheme. But the same was rejected and it was communicated by letter of Government of India dated 13-9-1974. The pension was refused to the petitioner as his annual income was above Rs. 4999/-. In support of his claim, he has filed the recomendation list of his follow freedom fighters. The grievance of the petitioner is that he has not been paid pansion even under the 1980 Pension Scheme. He claims pension on the ground that he lost his job as well as on the ground that he had gone underground. The petitioner has placed on record a number of documents to establish that he took part in freedom movement and he had gone underground as well as he had lost his job. The petitioner has also produced a letter of the Collector, recommending list of persons who remained underground. Name of the petitioner is at Sr. No. 4 in that list.
SCA 2711 of 1994
The petitioner, Punjabhai Ramanbhai Patel says that he was a Teacher in Shala No. 2 under the Ahmedabad Municipal School Board. He had participated in me freedom movement during 1942-46 on account of which he lost his job. His name is at Sr. No. 3 in the list of 126 Teachers given by Shri Anandibhai Shivprasad Thakore. The petitioner has produced a certificate of Shri Ishwarlal M. Vaghela at page 21, who is said to be a freedom fighter. He has certified that the petitioner had participated in the freedom movement during 1942-46, on account of which he lost his job for about four years. He has also produced a certificate stating that during that period he had remained underground. Another certificate at page 26 given by Shri Jayantibhai Subodh. He has also stated that the petitioner had participated in the freedom movement and lost his job. He had also produced certain documents/certificates stating that he had participated in the freedom movement, on account of which he lost his job and he had remained underground during that period.
SCA No. 2712 of 1992
The petitioner says that he was working as Teacher in Shahpur Shala No. 2 under Ahmedabad Municipality School Board. On the same ground as mentioned in SCA No. 2668/94, the petitioner was dismissed from the job and he had to remain without job for four years. He has placed on record a certificate from Shri Madhavlal Bhailal Shah, ex-Minister, Gujarat State that the petitioner had taken part in the freedom struggle and suffered actual inpnsonment for more than five years. He has certified that the petitioner remained underground for more than one year (1941-43). He has also produced a certificate of Chandulal Ishwarlal Bhatt who himself had taken part in the National Freedom Struggle. It is also certified that he had suffered actual imprisonment for more than three years. He has certified that the petitioner had remained in jail for the period from 1-11-1942 to 30-6-1945. He has also placed on record certificate of Jayantibhai Thakore, ex-Rajkarta. Certain other materials/documents were also placed on record. However, the application was rejected saying that his case is not covered within the purview of the Pension Scheme.
SCA No. 2026 of 1994
The petitioner says that he was a social worker. Due to his participation in the freedom movement, he lost his job. The petitioner is present in the Court. He says that though he was called to take up the job, he did not join. He thus says that he was never reinstated. The petitioner, among other supporting materials, has also produced a certificate of Babubhai Chimanbhai Patel, who actually suffered imprisonment for more than three years on different dates as given in the said certificate which is at Annuxure 22. Shri Babubhai has certified that the petitioner is a bona fide freedom fighter and he remained underground for more than 6 months for the period November 1941 to December 1943. In addition to this, other material has also been produced. His application was rejected by order dated 31st July 1986 on the ground that he did not produce any acceptable documentary evidence or evidence from the official record in support of the claimed suffering. The another ground of rejection is that his claim of underground suffering has now been found to be against the warrant of arrest.
SCA No. 2927 of 1994
The petitioner says that her husband late Shri Haribhai J. Parmar had particiapted in the freedom movement with the group of 126 Teachers, on account of which he lost his job during the period 1942-46. The widow of late Shri Haribhai Parmar had produced certificate as to loss of job and some other documents including Tamrapatra awarded to her late husband.
SCA No. 2928 of 1994
The petitioner Manekben Lalubhai Solanki says that she had participated in the freedom movement during 1942-46 on account of which she lost her job. She was one among the 126 Teachers and her name is at Sr. No. 5.
SCA No. 2929 of 1994
The petitioner, Valjibhai P. Solanki says that he had participated in the freedom movement during 1942-46. He was a Teacher in Shala No. 2 under Ahmedabad Municipal School Board. His name is at sr. No. 8 in the list of 126 Teachers given by Shri Anandibhai Shivprasad Thakore. He lost his job on account of his participation in the freedom movement.
SCA No. 2930 of 1994
The petitioner says that he was a Cashier in the Shala No. 2 under the Municipality School Board. He had participated in the freedom movement on the call given by late Mahatma Gandhi along with 126 Teachers and as such he lost his job during 1942-46. He has also remained underground during the said period. From among other evidence like Tamrapatra etc., the petitioner has also produced certificate of Shri Natverlal Patel who himself had remained in jail. The petitioner has placed on record the order of dismissal of the petitioner from the School service. Such certificate is at page 5. With respect to his remained in underground, he has produced certificate of Shri Natverlal Patel, who has stated that he remained in jail for a period of 11 months. In fact Shri Natverlal has certified that the petitioner remained underground during 1942 to 1946. However, the question remains to be whether Shri Natverlal was qualified to give this type of certificate for which he remained in jail for not less than two years. Order of rejection of the petitioner’s application is placed at page 16.
SCA No. 2931 of 1994
This petition has been filed by Smt. Vasumatiben N. Chauhah, widow of late Narsinh Narain Chauhan. She says that her husband was one of the 126 Teachers who participated in the freedom movement on account of which her husband lost his job during 1942-46. He has also remained underground during the said period. The petitioner produced certificate showing that her husband was dismissed from service. The said certificate is placed at page 15. The petitioner has also produced on record, duplicate certificate showing that Shri Anandibhai Shivprasad Thakore was confined in jail in Ahmedabad for different durations, total of which comes to musch more than two years. She also produced a list of freedom fighters who participated in 1942 freedom struggle. This list is said to be signed by Shri Anandibhai Thakore.
SCA No. 2932 of 1994
The petitioner Smt. Nirmalaben D. Solanki says that she had participated in the freedom movement on account of which she lost her job. She was one of the Teachers in the group of 126 Teachers. She has produced certain certificates to show that she lost her job and had participated in me freedom movement.
SCA No. 2933 of 1994
The petitioner says that she was a Teacher and she had participated in the freedom movement on account of which she lost her job during the period 1942-46. For the said period she also remained underground. In support of her case, she has produced certificate of ex-MLA Shri S.B. Makwana. Shri Makwana has certified that she participated in Hind Chhodo Andolan, due to which she was dismissed from Municipal School and during that period she remained underground. The certificate has been placed at page 19 of the petition. She has also paced on record certain other certificates including that of the Collector, Chief Minister and Tamrapatra given by late Prime Minister Mrs. Indira Gandhi.
SCA No. 2935 of 1994
The petitioner, Smt. Anandiben Muljibhai Dave says that she had participated in the freedom movement during 1942-46 on account of which she lost her job. She was one among the 126 Teachers and her name is at Sr. No. 10. She has produced a certificate from Shri Anandibhai Shiveprasad Thakore stating that she lost her job on account of her active participation in the freedom movement.
SCA No. 2936 of 1994
This petition is filed by widow of late Shri Kantilal Purshottam Arya. She says that her husband who was a Teacher and had participated in the freedom movement during the period 1942-46, on account of which he lost the job. He had also remained underground. The petitioner has produced certificate from Shri Keshavlal Ganeshbhai Sonara. It is stated in the certificate that he himself had participated in the freedom movement with late Shri Kantilal Purshottam Arya and he was a co-prisoner for about a month of him and thereafter he himself had gone underground and as such had no contact with late Shri Kantilal Arya. Another certificate produced at page 14 of Shri Laxmanbhai Somchand Tapodhan, who is said to be a freedom fighter as he is receiving pension from the Government. He has certified that late Shri Kantilal P. Arya had participated in the freedom movement and during that period he lost his job. Some other documents/certificates are also produced to prove her case.
SCA No. 2937 of 1994
The petitioner Smt. Parvatiben Lallubhai Solanki says that she was a social worker. She was Teacher in Shahpur Shala No. 2 under the Ahmedabad Municipality School Board. When late Mahatma Gandhi called for quit India Movement, this group of 126 Teachers of which she was one and due to her participation in the feeedom movement, she lost her job for the period 1942 to 1946. During this period she had to remain underground. She also says that her name appears in he list of 126 Teachers at sr. No. 8. She has produced certificate of Shri Anandibhai Shivprasad Thakore certifying that she had participated in the freedom movement during 1942-46. Certain other documents are also produced to prove her case.
SCA No. 3072 of 1994
The petitioner, Smt. Maniben Gajan, widow of late Shri Daulatram Gajan claims family pension under the new Pension Scheme of 1980. The petitioner says that she claims the pension on the ground that her late husband lost the job. She has placed certain materials on record to substantiate the case that her husband was a freedom fighter. The remaining grounds are the same as given in SCA No. 2668 of 1994.
SCA No. 3348 of 1994
The petitioner Smt. Vidyaben Chandrakant Shah along with her husband participated in the Quit India Movement during 1942-46. The petitioner was distributing patrikas known as Sangarsh and she was also passing explosive materials. The police was after her and she remained underground for a substantial period. She has produced certain certificates from ex-MLA certifying her participation in the freedom struggle.
SCA No. 4686 of 1994
This petition has been filed by Smt. Kashiben Yadav, widow of late Shri Virsingh Yadav. It is stated that the petitioner’s husband who was also one of the Teachers in the group of 126 Teachers and he lost the job for participating in the freedom movement. He was reinstated in 1946. It is also stated that during the period 1942-46, he remained underground. In this connection apart from other evidence, he has also produced certificate of Shri Madhavlal Bhailal Shah, who himself remained in jail for 5 years. He has certified that the petitioner’s husband late Shri Virsingh Yadav remained underground for a period of more than 6 months, i.e., from 25-8-1942 to December 1943. The said certificate is placed on record at page 18. The petitioner has also placed on record a certificate of Shri Jayantibhai Thakore. He has certified that the petitioner’s husband had participated in the freedom movement and he remained underground. Such a certificate was given by the then Chief Minister of Gujarat also.
SCA No. 4979 of 1994
In this petition, the facts are same and similar to the facts given in SCA No. 2688/94. The petitioner’s claims on the basis of loss of job, the petitioner has placed on record at page 13 of the petition, reinstatement certificate showing his removal from the service in the year 1942. The petitioner says that he had to remain underground during the freedom struggle period.
SCA No. 4980 of 1994
The petitioner says that on the call given by late Mahatma Gandhi, she along with her husband Laljibhai plunged into Quit India Movement. She has stated that once she was caught by the police and kept in detention for 15 days. Petitioner Jasumatiben Laljibhai Parmar, by way of Civil Application has prayed that certain documentary evidence may be allowed to be placed on record as additional evidence, which is as under:
Certificate of ex-MLA, Khodubhai Abhaysinh Vaghela certifying that the petitioner had participated in the freedom movement and also remained underground. Another certificate of Ishwarbhai Girdharbhai who was imnprisoned for more than two years certified that the petitioner had remained underground for more that six months and she was kept in custody for a period of 15 days. Third is a letter of Shri Motilal Chavda, MLA to me then Chief Minister stating that the petitioner had remained underground during the freedom movement and he has also stated in the letter that the warrant of arrest was issued against the petitioner and was also remained in custody of 15 days.
Mr. J.D. Ajmera, learned Addl. Standing Counsel for the respondents opposes the prayer of the petitioner with respect to allowing of the additional evidence at this stage, more particularly when the documents filed are not at all visible.
SCA No. 4981 of 1994
The petitioner claims family pension under the Scheme of 1980. Smt. Jasumatiben Laljibhai Parmar is a widow of late Shri Laljibhai Kalidas Parmar. She says that her husband was a social worker and a true patriot. He was Teacher in Shahpur Shala No. 2 under the Ahmedabad Municipality School Board. When late Mahatma Gandhi called for Quti India Movement, this group of 126 Teachers of which her husband was one. The petitioner has placed on record an application dated 3-8-1972 at page 23 of the petition. She has placed on record a certificate of Shri Khodubha Abhaysingh Vaghela, ex-MLA, Gujarat. He has certified that the petitioner’s late husband had participated in the freedom movement and he had also remained underground. The petitioner has also placed on record a certificate of Shri Ahmedbhai M. Patel at page 45 of the petition recommending the case of the petitioner. Other than the above, she has placed on record a large number of documents to prove her case.
SCA No. 5059 of 1994
The petitioner says that he was also one of the 126 Teachers who participated in the freedom movement, on account of which he remained out of job for the period 1942-46. During this period he also remained underground. In order to support his claim of pension, he has produced the certificate of his dismissal which is placed on record at page 14 of the petition. The petitioner’s application was rejected by the Collector, Ahmedabad, on the ground of insufficiency of evidence.
SCA No. 5200 of 1994.
This petition has been filed by one K. N. Gandhi, who is said to be the son of late Shri Narsinghbhai Bhojabhai Vaghela who participated in the freedom movement as one among the group of 126 Teachers. He lost his job on account of his participation in the freedom movement for about 4 years. He has produced certificate at page 23 from Shri Muldasji B. Vaishya, a retired M. P. certifying that late Shri Narsinghbhai Vaghela had participated in the freedom movement on account of which he remained jobless till 1946. It is also certified that he took active part in the freedom movement and had remained underground for 4 years. He also certified that he had to run from place to place because police was after him to arrest him. Certain other documents are also produced on record to prove his case.
SCA No. 5211 of 1994.
The petition Smt. Kamlaben Fulchand Bhavsar says that she had participated in the freedom movement and as such she lost her job during the period 1942-46. Her name is at Sr. No. 22 of the list of 126 Teachers given by Shri Anandibhai Shivprasad Thakore. She also produced certificate of Ex-MLA Dr. Ajitkumar Patel that she had participated in the freedom movement on account of which she lost her job for a period of about 4 years.
SCA No. 5242 of 1994.
The petitioner herself is a freedom fighter. She was one among 126 Teachers and her name is at Sr. No. 12. She has produced certificate from Shri Anandibhai Shivprasad Thakore, certifying that she lost her job on account of her participation in the freedom movement.
SCA No. 5689 of 1994.
The petitioner, Trikambhai Fakirchand Parmar says that he was serving as mill mazdoor in Jehangir Vakil Mills in Ahmedabad. He participated in the freedom movement during the period 1942 to 1946. During that period, he had remained underground and actively participated in the underground activities. Shri Nirubhai Desai, a veteran freedom fighter has certified that he himself actually remained in jail for more than 2 years during the freedom struggle and during that period, the petitioner had also remained in jail for more than six months. Said certificate is at page 16. Certain more documents are also placed at pages 36 and 40 to show that Shri Nirubhai Desai had remained in jail for more than 2 years, and therefore, he qualifies himself to be a veteran freedom fighter for issuing such certificate.
SCA No. 6459 of 1994
The facts of this petition are similar to the facts of SCA No. 2668 of 1994. Petitioner Raksharam Ramarav Mishra says that he was a Teacher and he had participated in the freedom movement during 1942-46 on account of which he lost his job. He has placed on record certain certificates in this regard.
SCA No. 7763 of 1994.
The petitioner Thakorelal C. Tilvawala says that he had participated in the freedom movement in Hind Chhodo Andolan under the leadership of Shri Brahmbhatt, Dr. Suresh Shah etc. during the period 1942-46. During the said period, he was arrested by the police, False charges were menufactured against him by the British Government. It is certified that the petitioner has remained underground for three years. The petitioner has also produced a number of documents in this respect which are at pages 18, 20, 22, 23, 24, 25, 26, 29 and 30. These certificates are being placed on record to show that the petitioner had remained in jail and also remained underground for a substantial period during the freedom movement.
SCA No. 7764 of 1994
The petitioner-Pravinchandra Kantilal says that he had participated in the freedom movement during the period 1942-46. During this period he remained underground. The petitioner has placed on record a certificate of Shri Dwarkdas Patel, who remained in jail for more than two years. He has certified that the petitioner had remained underground for more than six months. He was also declared Proclaimed Offender. He has further certified that against the petitioner, detention order was issued. Identical certificate of shri Babubhai Chimanbhai Patel who remained in jail for about 5 years, is placed at page 20. Again at page 26 certificate of Shri Anandibhai Shivprasad Thakore has been produced. He has also certified with Proclaimed offender.
SCA No. 7765 of 1994
The petitioner-Natvarlal Keshavlal Rana says that he had participated in the freedom movement during 1942-46 and during this period he remained underground. At page 24, the petitioner has produced a certificate of Shri Babubhai Vasanwala, ex-MLA certifying that against the petitioner arrest warrants were issued and he had remained underground during this period. At page 25 the petitioner has produced another certificate issued by Shri Dwarkadas Patel, and at page 30, a certificate issued by Shri Nirubhai Desai has been placed. Shri Desai remained in jail for more than two years, who certified that the petitioner had remained underground for more six months and declared Proclaimed offender. Certain other certificates were also produced by the petitioner to prove his case.
SCA No. 7766 of 1994
Petitioner – Shantilal Tribhovandas Patel says that he is a freedom fighter. He had participated in the Hind Chhodo Andolan during 1942-46. During this period he was arrested. He remained underground for more than 8 months. He has produced certificate from Shri Anandibhai Shivprasad Thakore certifying that the petitioner had remained underground for more than six months during the period August 1942 to December 1943. Another certificate issued by Shri Dwarkadas Patel is at page 20 which is almost an identical certificate which was given by Shri Anandjibhai Thakore.
SCA No. 7767 of 1994
Petitioner – Ramanlal Keshavlal Rana says that he had participated in the Hind Chhodo Andolan during 1942-1946. During this period, the petitioner remained underground for more than 8 months. The petitioner has placed on record at page 17 certificate issued by the Superintendent of Ahmedabad Central Prison, Sabarmati dated 16-3-1982 certifying that the name of the petitioner appears in the list of detenus. The certificate also contains the date of admission of the detenu. The Jail Superintendent has also certified that the register in which the name of detenu were written has been destroyed. The petitioner has placed on record another certificate under the signature of Shri Anandbhai Shivprasad Thakore. He has certified that the petitioner Ramanalal Rana is a bona fide freedom fighter who was imprisoned on account of his participation in the freedom movement and was detained in custody under Section 129 D.I.R. on 28-8-1943. He has further certified that the petitioner was not prematurely released from Jail on account of oral or written apology by him. A number of certificates have been produced showing that he remained in jail for certain time and also remained underground. All these certificates have been produced showing that he remained in jail for certain period and also remained underground. All these certificates/documents are placed on record.
SCA No. 7844 of 1994
Petitioner – Mangaldas Shankarlal Rana says that he is a freedom fighter and had participated in the freedom struggle during 1942-46. During this period he had remained underground for two years. Such certificate is at page 20.
SCA No. 7845 of 1994
Petitioner – Savitaben Govindlal Rana says that her husband late Shri Govindlal Bhudardas Rana had participated in the freedom movement during 1942-46. She says that her husband had remained underground during that period. She has produced two certificates/documents by filing C.A. No. 2069 of 1994 to prove her case. There is a certificate, also by Shri Shrishchandra Trikamlal Patel, a veteran freedom fighter. He has certified that the petitioner’s husband was lodged in jail along with him during August, 1930. She has also produced a certificate from Shri Ramanlal Somchand Shah certifying that the petitioner had remained underground for more than six months which is at page 3 of the aforesaid Civil Application.
SCA No. 7908 of 1994
Petitioner – Ichhabhai Berawala is said to be 73 years old. It is the say of the petitioner mat he had participated in the Hind Chhodo Andolan during me period 1942-46. During this period he was arrested on false criminal charges. He also remained underground during mis period. He was awarded Tamrapatra by the late Prime Minister Mrs. Indira Gandhi for active participation in the freedom movement. The petitioner has produced a certificate of Shri Manilal K. Parekh which is placed at page 28, certifying that during the freedom movement he had undergone imprisonment for 4 years. He has certified that the petitioner had taken active part in me Quit India Movement and he also had remained underground for a period of 3 years. Identical certificate of Shri Maneklal Gandhi which is placed at page 31, certifying mat the petitioner had remained underground for more than six monuis. The petitioner has also produced certificate of Shri B.P. Modi, ex-MLA, certifying that the petitioner had participated in Quit India Movement and had remained underground for a period of 3 years. There is another certificate at page 37 of Shri Navalchand Motilal Kansara, ex-MLA certifying that the petitioner had remaind underground for a period of three years. It is also stated that the petitioner had filed a petition which was registered as SCA No. 9818 of 1982 and this Court by order dated 24-2-1994 directed that on representation being submitted by the petitioner, the respondent shall decide the same within a period of one months. The Court also pointed out that the test to be applied ascertaining the genuineness of the claim if he has fought for the freedom and had participated in the movement of independence. However, the Government has rejected the petitioner’s representation by its order dated 3-6-1994 on the ground of ‘insufficiency of proof. The petitioner has also challenged this order dated 3-6-1994 on the ground that the State Government has not at all considered the materials on record.
SCA No. 8640 of 1994
The petitioner – Ramanlal Chimanlal Tharwala says that he was a social worker since 1930. He participated in the freedom movement. He remained underground during the freedom struggle for about 8 months. He has produced certificate at page 12 from Shri Indubhai Chaturbhai Patel, ex-MP certifying that the petitioner had participated in the freedom struggle and had remained underground for more man 8 months. He has also produced certain other documents. At page 16 he has produced a certificate from ex-MLA, Shri Patel Bhulabhai Vardhabhai to prove his case.
7. Dr. Sonia Hurra, learned Advocate appearing for the petitioners urges that the present group of petitions comprises of Teachers and mill workers who had participated in Hind Chhodo Andolan on a call given by Rashtrapita Late Mahatma Gandhi. This group of persons had to remain underground for a period of 48 months due to which they were dismissed from their service and thereby lost their jobs, However, later on, as a mark of respect, since they had fought for the Independence of our Nation, they were reinstated. She further urges that the said group of political sufferers have been awarded Tamrapatra by the late Prime Minister, Mrs. Indira Gandhi and also awarded certificate of honour by the State authorities. She has pointed out that out of the group of freedom fighters, some are paid pension from the Central Government as well as the State Government. The present group of freedom fighters had lost their livelihood for 48 months, the suffering is covered by the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as ‘Scheme of 1980’). It is further argued that the scheme of 1980 being a piece of beneficial scheme for the benefit of the persons having taken part in the freedom movement and suffered therein, the provisions of this scheme are required to be construed liaberally in such a manner so as to favour the freedom fighters.
8. On the other hand, Mr. J.D. Ajmera, learned Addl. Standing Counsel for the Union of India submits that without going into any technicalities, the respondents are even prepared to treat the present writ petitions as applications and to give benefits to the persons entitled under the scheme. He however, submitted that the provisions of the scheme have to be strictly construed and unless the criteria of eligibilty as laid down in the scheme if fulfilled, the claimants cannot be held eligible for grant of pension. It is stated that no application has been received in the concerned Ministry and it appears that the State Government has not recommended the case of the present group of petitioners for just and good reasons.
9. In the present group of petitions, the different petitioners have claimed pension broadly on the following grounds:
(a) That on account of participation in the Quit India Movement, the petitioners had lost their jobs and livelihood on account of that;
(b) The petitioners remained underground for more than six months during the Quit India Movement:
(c) The petitioners suffered imprisonment of more than six months during the period of Quit India Movement.
10. With respect to the loss of job, the common ground is that the petitioners were in the group of 126 Teachers who had participated in the Quit India movement during 1942-46, on act of which they had lost their jobs and though they were reinstated, they were not paid salary for the said period. While, on the one hand, Dr. Sonia Hurra contends that the case of the petitioners is covered under Clause 4(f) of the Scheme of 1980 as the petitioners suffered on account of their participation in the National Movement, and for the said period they lost their livelihood, on the other hand, Mr. J.D. Ajmera learned Addl. Standing Counsel for the respondents contends that the case of the petitioners is not covered under Clause 4(f) of the Scheme, as the petitioners cannot be said to have lost their jobs, as they were subsequently reinstated. Thus, the main controversy involved in this group of petitions rest on the interpretation of Sub-clause 4(f) of the Scheme of 1980 which reads as under:
A person who lost his job (Central or State Government) and thus means of livelihood for participation in National Movement.
11. Mr. J.D. Ajmera has also placed on record a circular of the Central Government dated 12-11-1975, wherein the decision of the Cabinet that the persons who are dismissed, removed, or resigned from service and are reinstated, re employed or given benefit including arrears of pay and persion, are not eligible under the Freedom Fighters’ Pension Scheme, 1972. For convenience, the said circular of 1972 is reproduced hereunder:
xxx xxx xxx xxx
No. 15/T../TCHER/FF (WI) 74
Government of India
Ministry of Home Affairs (Grin
Mantralaya)
New Delhi-110 001.
The 12th November 1975.
To,
The Chief Secretary to the Govt, of Gujarat, Ahmedabad.
Subject : Grant of pension to freedom fighters and their families from the Central Revenues.
Sir,
I am directed to refer to your letter No. POS-1972 And GH-I dated 25th Sept. 1975, regarding the grant of pension to freedom fighters from the District Ahmedabad.
The Cabinet has taken a decision according to which the persons who were dismissed, removed, resigned from service and later re-instated, re-employed or given benefit including arrears of pay and pension are not eligible under the Freedom Fighters’ Pension Scheme. The case of S/Shri Laljibhai, narainbhai, Vahaljibhai and Eshwarbhai were accordingly rejected. Pension in the case of S/Shri Dolatram, Gurudayal and Bapulal was sanctioned erroneously which has since been suspended. The State Government has been informed vide this Ministry’s letter Nos. 10/237/73. FF/TV-Ahd. (221) dated 20th Sept. 1975,15/PSM/3/FF. IV/Ahd. (292) dated 20th Sept. 1975 and 15/192/73/FF. IV-Ahd. (246) dated 2 Sept. 1975 respectively.
Shri S.M. Solanki, M.P. had sent a letter to the Dy. H. M. about the position of some of these cases. He was informed of the position by the Hon. Dy. H. M. under this Ministry’s letter No. 16/G/1/75 WZ dated 3-7-1975.
Yours faithfully,
(Sd/-)
(S.S. GUPTA)
Under Secretary to the Govt, of India.
xxx xxx xxx xxx
Mr. Ajmera, learned Addl. Standing Counsel for the respondents contends that the above decision of the Cabinet, it should be read as explanation to Sub-clause (f) of Clause 4 of the Scheme of 1980. Thus, the conention of Mr. Ajmera is that a person who has been dismissed, but reinstated, shall not be eligible for pension under the Freedon Fighters’ Pension Scheme.
12. I have given my anxious consideration to the question and am of the view that for more than one reasons, the case of the present petitoners should be covered under Sub-clause (f) of Clause 4 of the Scheme of 1980. It may be noticed that in September 1985, on the recommendation of the non-official Advisory Committee at the central level, the Government renamed the pension scheme as ‘Swatantra Sainik Samman Pension Scheme. The introduction of the word “Samman” appears to be in the true spirit of working out of such a scheme. This scheme came up for consideration before the Hon”ble Supreme Court in the case of Narayanan v. Union of India . Their Lordships observed as under:
10. The Scheme has been formulated with a view to acknowledge the services rendered to the country by patriotic citizen during the freedom movement and who had suffered at the hands of British Rules in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country.
Thus, the object of the Scheme is to honour and wherever necessary, to mitigate the sufferings of those who had given their lives for the country in its hour of need. The spirit of the Scheme was thus to assist and honour the needy and acknowledge their sacrifice. It is not in dispute that though the petitioners were reinstated they were not paid salary for the period they lost their jobs. Thus, they lost their livelihood for participation in the National movement. It is further significant to notice that Sub-clause (f) of the Scheme 1980 simply says ‘loss of job’ and not ‘loss of permanent job’. The word ‘permanent’ cannot be permitted to be read in Sub-clause (f). A plain reading of Sub-clause (f) with the objectives of the scheme only suggests that the persons who lost their jobs irrespective of the fact that they were reinstated later on, on account of their sufferings will be covered by Sub-clause (f). If the contention of the learned Counsel for the respondents is accepted, it would be opposed to the plain reading of Sub-clause (f). It will also lead to the absurdity that while persons who were engaged in business or elsewhere and who participated in the National movement on account of which they suffered but took up the business after the freedom struggle movement, will be entitled to the Scheme of 1980, but not the persons like the petitioners in the present group of petitions. As already stated, the pension is not only a compensation but is an honour for the service rendered by them. So far as the circular referred to by Mr. Ajmera is concerned, even a plain reading would show that it covers only cases where arrears of pay was not given. The Cabinet decision is that persons who are dismissed, removed, resigned from service and later on reinstated, re-employed or given benefits including arrears of pay are not eligible under the Scheme. Thus, it may apply to cases where a person who was dismissed or removed from service, but he was reinstated and given benefit including payment of arrears of pay.
In the present case while the petitioners were reinstated, but they were not paid the arrears of pay. Further, the said Cabinet decision is prior to liberalisation of the Scheme in the year 1980. The Cabinet decision cannot be read as explanation of Sub-clause (f) as suggested by Mr. J.D. Ajmera for the simple reason that if that was the intention of the Government, this would have been incorporated as an explanation in the 1980 Scheme. Thus, in my view, the case of the present petitioners is covered by Sub-clause (f) of Clause 4 of the Scheme of 1980, subject to sufficiency of proof on serutiny.
13. The case of other category of persons who were detained or remained underground, will entirely depend on sufficiency of proof. The Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinise the documents, which according to the petitioners, they have produced in the present petition to support their claim, and pronounce upon their genuineness. However, in this context, it is advisable to refer observations of the Apex Court in R. Narayanan’s case (supra):
there is neither justice nor grace in respondents’ putting forth such objections. No one can reply except on official records if at all preserved for a period of 40 years to prove the treatment given to the petitioners for injuries sustained by them during the freedom struggle.
Suffice it to say that the concerned authorities should look into the sufficiency of proof keeping in view the object of the Scheme as stated above and further from the jail record or from persons who have been named in this scheme to certify the eligibility and thus a rigid attitude should not be adopted. Most of the claimants – almost all of them – must have grown pretty old and this material aspect cannot be ignored.
14. Under the Scheme of 1980, the applications are to be initially scrutinised by the State Government in consultation with the said Advisory Committee. In the present group of petitions, the State Government has exhibited a totally unconcerned attitude. An affidavit has been filed by Mr. B.H. Patel. Under Secretary, General Administration Department, Sachivalaya, Gandhinagar stating:
(2) I say and submit that the grievance raised in the petition is against the non-grant of pension to freedom fighters under the Swatantrata Sainik Samman Pension Scheme, 1980, formerly known as “Freedom Fighters’ Pension Scheme, 1972” framed by the Central Government. Under the said Scheme the Central Government is the competent authority to decide and grant pension to the eligible persons. I say and submit that the State Government has not to decide the applications, but the Central Government being the competent authority under the Scheme, has to decide the said application.
It may be reminded that Clause 10 of the Scheme provides that the claim of an applicant is required to be scrutinised by the State Government in consultation with the State Advisory Committee on the basis of the application submitted to them. The Central Government after receipt of the verification and entitlement of pension report, is required to scrutinise and if found eligible, pension is to be granted. There is no reply of the State Government as to whether it received all the applications and if so whether they were scrutinised and further any appropriate reply was given to the applicants in case of recommendation made.
15. In some cases, the applications have been rejected without a speaking order by simply stating that there is no sufficiency of proof.
16. In view of the above, the only course open to treat the present petitions as applications for grant of pension under the Scheme of 1980 and direct the State Government to scrutinise the applications in accordance with Clause 10 of the scheme and report to the Central Government.
17. In Special Civil Application No. 7908 of 1994, petitioner-Ichhubhai Berawala who is said to be 73 years old approached this Court earlier. The said Special Civil Application was registered as SCA No. 9818/1992. This Court, by order dated 24-2-1994, (Coram : S.D. Shah, J.) directed that on submission of the representation, the respondent-State of Gujarat shall decide the same within a period of one month. While deciding the said writ petition, the Court pointed out the test to be applied for ascertaining the genuineness of the claim whether the petitioner had participated in the movement of Independence or not. The grievance of the petitioner is that the State Government has rejected the representation of the petitioner by order dated 3-6-1994 simple on the ground of insufficiency of proof. As the order of the State Government is non-speaking and further looking to the old age of the petitioner and the fact that the State Government has not applied the test as directed by this Court in SCA No. 9818 of 1992, I propose to scrutinise the material placed on record by the petitioner in this writ petition. The petitioner has produced certificate of Shri Manilal K. Parekh which is placed at page 28 certifying that during the freedom movement, he had undergone imprisonment for 5 years. He had also certified that the petitioner-Ichhubhai had taken active part in the Quit India Movement and that he had also remained underground for a period of 3 years. Identical certificate from Shri Maneklal Gandhi has been placed at page 31 certifying that the petitioner had remained underground for more than six months during 1942 till the end of 1944. The petitioner has also produced certificate of Shri B.P. Modi, ex-MLA, certifying that the petitioner had participated in Quit India Movement and had remained underground for a period of 3 years. There is another certificate at page 37 of Shri Navalchand Motilal Kansara, who is also an ex-MLA, certifying that the petitioner had remained underground for a period of 3 years.
In my opinion, there is overwhelming proof that the petitioner is entitled to pension under the Scheme of 1980. In this view of the matter, I set aside the order of the State Government dated 3-6-1994 and direct that the application of the petitioner-Ichhubhai Berawala be sent to the Central Government. The State Government shall report the case of the petitioner to Central Government within two weeks and Central Government shall pass appropriate orders within a period of four weeks after the receipt of report from the State Government.
18. It is also made clear that in view of the law laid down by the Apex Court Mukundlal Bhandari v. Union of India , the pension shall be made payable from the date of which the Scheme is made. Thus, when the present group of writ petitions are treated as applications under the Scheme of 1980, so far as the date of submission of application is concerned, the relevant date would be the date on which the first application was submitted by the individual petitioner, irrespective of the fact whether the application was accompained by the necessary proof of eligibility or not. Thus, the concerned authority will determine the date of submission of the first application under the Scheme.
19. Without going into the merits of the individual petitioners in this group of petitioner, I direct as follows:
(i) The individual Special Civil Application shall be treated as applications under the Scheme of 1980 irrespective of the date on which they were made, and all the documents submitted along with the Special Civil Applications shall be taken as documents annexed to the applications. If further documents are submitted by the individual petitioners, before the actual scrutiny as contemplated under Clause 10 of the Scheme of 1980, they shall also be accepted,
(ii) The respondent-State of Gujarat shall scrutinise every application and the evidence produced in support of the claim and dispose them of within a period of six weeks keeping in view the laudable and sacrosanct object of the Scheme as observed above in this judgment and the various judgments of the Apex Court mentioned above,
(iii) In case no recommendation is made by the State Government, reasons shall be recorded thereof and such decision shall be communicated to learned Advocate for the petitioner Dr. Sonia Hurra and the said Special Civil Application shall be returned to High Court with reasons. It will be open to such individual petitioners to revive the petition,
(iv) The Central Government after receipt of the state vertification and entitlement to pension report of the individual claimants, shall scrutinise and if found eligible, shall grant pension within a period of four weeks from the receipt of the said report from the State Government.
The Registrar of the High Court is directed to send the entire group of petitions to the Deputy Secretary, General Administration, Sachivalaya, within a period of one week from the date of this order.
20. In this view of the matter, this group of petitions is allowed to the above extent. Rule made absolute. There shall be no order as to costs.