JUDGMENT
Usha Mehra, J.
(1) Shri S.M.Nizamuddin has claimed to be freedom fighter. His pension under the Scheme now known as “Swatantrata Sainik Samman Pension Scheme” issued by the Ministry of Home Affairs, Union of India, has been refused. Hence he has approached this Court for issuing of mandamus directing the Government of India to consider his name and consequently to pay the pension to him.
(2) The petitioner has based his claim on the ground, that he took active role in freedom struggle. Criminal cases were lodged against him, pursuance to which warrants of arrest were issued. In order to avoid the arrest, he went underground and while he was underground he continued his activities in furtherance to the struggle for freedom.
(3) The principles governing the Central Scheme of Pension can be summarised as follows:- A Central Scheme for the grant of pension to freedom fighters and their families from Central Revenues was introduced by the Government of India during the Silver Jubilee Year of Independence. The scheme commenced from 15th August,1972 and provided for the grant of pension to living freedom fighters. Those who were not alive, the members of their families/martyrs were entitled to avail the benefit of the scheme. The minimum quantum of pension sanctioned to a freedom fighter was Rs.200.00 per month and in case of families, it varied from Rs.100.00 to Rs.200.00 in accordance with the size and number of eligible dependants in the family. Till 31st July,1980, the freedom fighters pension was admissible only to those who were in need of financial assistance on account of their meagre annual gross income. Thus, an annual income ceiling of Rs.5,000.00 was enforced for eligibility to pension. From 1st August,1980 the benefit of the pension scheme was extended to all freedom fighters as a token of Samman to them. The Government not only removed the income ceiling from 1st August,1980 but also raised the quantum of monthly pension from Rs.200.00 to Rs.300.00 in case of living freedom fighters and Rs.100.00 to Rs.200.00 to the widow of late freedom fighter with additional Rs.50.00 per month each for unmarried daughter up to a maximum limit of Rs.300.00 per month.
(4) According to the scheme, a person who had suffered a minimum imprisonment of six months in the main land jails before independence was eligible for the grant of Samman pension. However, ex-INA personnel were to be eligible for pension if the imprisonment/detention suffered by them was outside India. The minimum period of actual imprisonment for eligibility of pension was reduced to three months in case of women and SC/ST freedom fighters from 1st August,1980. Detention under the orders of the competent authority was considered as imprisonment and the period of normal remission up to one month was treated as part of actual imprisonment.
(5) Under the scheme, following class of persons are eligible for sanction of pension:- A)Aperson who remained underground for more than six months, provided he was a proclaimed offender or an award of arrest/head was announced, or detention order was issued but not served on him. b)A person interned in his home or externed from his district provided such period was six months or more. c)Likewise, a person whose property was confiscated or attached and sold due to participation in freedom struggle. d)A person who has become permanently incapacitated during firing or lathi charge e)A person who lost his job, Central or State Government.
(6) A martyr has been defined as a person who died or was killed in action or in detention or was awarded capital punishment while participating in National Movement for emancipation of India. It will also include an Ex.INA or Ex.Military Person who died fighting the British.
(7) A person who applies for Samman Pension should furnish the documents indicated below : A)IMPRISONMENT/DETENTIONCertificate from the concerned Jail Authorities/District Magistrates or the State Government. b)In case of non-availability of such certificate, then a certificate from any one sitting Member of Parliament or Member of Legislative Assembly or from an Ex-member of Parliament or an Ex-Member of Legislative Assembly specifying the jail period. c)A person who remained underground shall produce documentary evidence by way of Court’s order or Government order proclaiming him as an offender announcing award on his head or for his arrest or ordered his detention. d)In the absence of the above, a co prisoner certificate from two prominent freedom fighter who had undergone imprisonment for at least one year or more. However, the veteran freedom fighter should be hailing from the same district. e)To prove the case of internment or externment, the applicants can produce an order of internment or externment or any other corroboratory documentary evidence and certificates from prominent freedom fighters who had themselves undergone imprisonment for more than three years. The veteran freedom fighters are expected to give the certificate in respect of underground suffering, internment/ externment and the applicant should belong to the same administrative unit before the reorganisation of States and their area of operation must be the same. f)Order of confiscation and sale of property and orders of dismissal or removal from service are equated to the loss of property, job, etc.
(8) The scheme was liberalised in the year 1980 to the following effect. Certificate of co- prisoners of two renowned freedom fighters who had undergone imprisonment for not less than one year in connection with the freedom struggle and are recipient of Tamara Patra and pension from the Central Government was declared sufficient. Those certificates need not be from a Member of Parliament or a Member of Legislative Assembly or an Ex.Member of Parliament or an Ex.Member of Legislative Assembly.
(9) The procedure for issue of sanction order is provided in the scheme itself. The claim of the applicant was to be scrutinised by the State Government in consultation with the State Advisory Committee. After receipt of State verification and entitlement to pension report, the claim of the applicant was to be scrutinised and if found eligible, pension would have been granted. Duration for receiving pension has also been mentioned in the scheme.
(10) These are the salient features of the “Swatantrata Sainik Samman Pension Scheme,1980” formerly known as “Freedom Fighters Pension Scheme,1972.”
(11) The scheme of pension as summarised above stipulates the procedure for issue of sanction order. In order to be eligible for the pension, applicant was required to furnish documents as mentioned above. It is the case of the respondents that the petitioner applied for pension on ground of having suffered underground from August,1942 to December,1943. Documents were furnished to prove that he suffered underground because of the warrants of arrest having been issued against him and he avoided his arrest. Along with the G.R., copy of Fir was furnished by the petitiioner. On scrutiny, it was found that the petitioner’s name did not figure in the G.R.No.1022 and, therefore, his claim was rejected on 4th August,1986. He was communicated accordingly.
(12) It is the case of the petitioner that his name was recommended by the State Advisory Committee for the receipt of this pension. Inspite of that recommendation, the Central Government wrongly rejected his claim.
(13) The respondent on the other hand has taken the plea that the petitioner has based his claim on doubtful documents. The petitioner furnished a photocopy of G.R.No.1130/42, a copy of Fir and personal knowledge certificates of Sh.Bishanath Bind, Sh.Mazhar Singh. Since the copy of the G.R. was unverified hence the Central Government in its wisdom sent these documents for verification to the State of Bihar on 26th March,1987 with a request to send the report Along with other necessary documents. The State of Bihar asked for more documents in order to have proper verification. After verification of the G.R. submitted by the petitioner, it was found to be doubtful for various reasons namely – (i) two lists of persons “sent up in custody” and the name of the accused persons in both the lists differ from each other, (ii) the final order of the case was passed on 25th September,1945. The warrants of arrest were withdrawn against the absconding accused Sh.Parik Sah who figured in the list of accused “sent up in Custody” at page 3 of the G.R. while in the final order he has been shown as an absconder, (iii) in the absconder’s list at page 3 of the G.R. there were 19 names including the name of the petitioner whereas the order dated 16th July at page 4 of the G.R. shows there were 20 absconders and finally (iv) On page 5 of the G.R., at the top, there is an order against six persons including persons whose names appear neither in the list of persons “sent up in custody” nor ‘absconders’. These persons had been sentenced for rigorous imprisonment for six months. Because of these discrepencies doubt arose. The Central Government asked the State Government of Bihar to clarify these points before the recommendations of the State Advisory Committee could be considered. On account of these discrepencies the G.R. was considered to be not genuine. It created doubt about its authenticity.
(14) That on petitioner submitting his application the same was forwarded to the State of Bihar with a request to verify the documents furnished by the petitioner. No reply was received from his State. Subsequently the State Government forwarded copy of the District Magistrate’s report indicating that the documents submitted by petitioner were got verified through the Deputy Collector in charge of District Records, Rohtas (Sasaram) who after verification found that the G.R. submitted by the petitioner was doubtful. Deputy Collector found that the G.R. submitted by the petitioner was issued in 1947 when the District was not even created. Moreover, from the photostat copy supplied by the petitioner, it was not clear as to wherefrom it was issued, nor did it bear the stamp of any district from which it could be ascertained as to from where it was issued. It was in this background that the G.R. submitted by the petitioner was found to be not authentic and the possibility of manipulation could not be ruled out. The cases of Shri Brij Kumar Srivastava and Shri Navrang Prasad cited by the petitioner were reviewed and after review the pension of Shri Brij Kumar Srivastava which was sanctioned in his favor on 17th December,1984 has been suspended. The fact that the G.R. was issued in 1947 from a District which was not even created in 1947, the authenticity of such a G.R. became doubtful. It is in this background that the application of the petitioner was not accepted. Petitioner has not filed any rebuttal affidavit to clarify these points.
(15) Perusal of the District Magistrate’s report shows that the District Rohtas (Sasaram) was not even in existence in 1947 when the alleged G.R. was issued. In this background it cannot be said that the Central Government was wrong in coming to the conclusion that the G.R. relied by the petitioner was a doubtful document. Similarly, no proof about the genuineness of Fir has been furnished by the petitioner.
(16) In view of the facts stated above, it cannot be said that the action of the respondent is arbitrary or in any way discriminatory towards the petitioner. The Supreme Court in the case of D.K.Nakara Vs. Union of India observed as under:- THE sanction of pension creates a vested right on the person and it is neither a bounty nor a matter of grace depending on the sweat Will of the employer. The pension is not an ex- gratia payment, but it is a payment for the past service rendered and that it is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch.
(17) In order to become entitled to the pension which is a social welfare measure, the petitioner had to satisfy the respondent with some documentary evidence that he suffered underground in order to save himself from the arrest warrants issued against him. Having failed to bring on record any cogent evidence by way of a Certificate in respect of underground sufferings, no directions can be given to the respondent. Moreover, this Court in its writ jurisdiction cannot evaluate the documentary evidence produced by the petitioner. That is the job of the respondent. This view of mine is supported from the observation of the Supreme Court in the case of Mukund Lal Bhandari & ors. Vs. Union of India, . In that case the Supreme Court was dealing with almost a similar matter, this scheme came up for interpretation and the Court opined that the grant of pension would be subject to production of the requisite proof in support of the claim. As regards the sufficiency of the proof, the Supreme Court observed that :- “AS regards the sufficiency of the 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 had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly.”
(18) The law laid down in the above case squarely apply to the facts of this case. However, reliance by the petitioner on the decision of the Madras High Court in the case of R.Thangavelu Vs. Government of India & anr. in Writ Petition No.7194/91 decided on 16th December,1993 is distinguishable on the facts itself. In that case before the High Court, the question was about the applicability of enhanced pension declared by the Central Government. Could it be automatically applicable to the pension granted by the State? On this question the Court held that all the freedom fighters drew only Central Government pension i.e. Swatantrata Sainik Samman Pension and, therefore, both the State Freedom Fighters pension and Swatantrata Sainik Samman Pension be paid on enhanced basis. In that case number of petitioners claimed number of reliefs, the Court after taking into consideration the facts of each case allowed the petition. In none of those cases the question of genuiness of document was involved. Hence reliance by the petitioner on the decision of the R.Thangavelu (supra) is mis-placed. The main reason for grant of the relief in that case was that the petitioner was receiving the State Pension and he was also awarded Tamra Patra Certificate. Therefore, it was observed that he automatically became entitled to get the pension under the Central Scheme without any further enquiry. But that is not the case in hand. The facts of R.Thangavelu (supra) are quite distinguishable. So far as this case is concerned, the observations of the Supreme Court in the case of Mukund Lal Bhandari (supra) squarely apply. Therefore, applying the laid down by the Supreme Court and quoted above, I find no merits in the petition. But before parting I must make it clear that in case the petitioner is in a position to furnish documentary evidence as per the scheme regarding his suffering underground then the Central Government would reconsider his case for the grant of pension. Before rejecting he be given an opportunity of being heard. His request will not be rejected summarily on the ground that his writ petition has been dismissed.