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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.272 of 2018 Rajeshwari Sharma
...….……Petitioner Versus
State & another
Present:
………. Respondents
Mr. Tapan Singh, Advocate for the petitioner. Mr. C.S. Rawat, Additional C.S.C. along with Mr. Anurag Bisaria, Standing Counsel for the State.
Dated: 15th February, 2018 Hon’ble Sharad Kumar Sharma, J. (Oral)
This writ petition has been preferred by a widow of a freedom fighter, who is at present of 91 years of age, whose late husband died at the age of about 100 years, after earnestly pursuing the remedies available under law, ever since 05/03/1981, for the grant of Freedom Fighter Pension under the Rules of 1975. The claim of her late husband of the petitioner, for the grant of Freedom Fighter Pension has been rejected by State by the impugned orders under challenge in the writ petition. Hence, in the writ petition he has sought the following reliefs :i)
Issue a writ, order or direction in the nature of mandamus
commanding
/
directing
the
respondents to declare the husband of the petitioner late Shri Satyeshwar Sharma to be a freedom
fighter
and
further
direct
the
respondents to give the pension of dependent of freedom fighter to the petitioner alongwith all benefits as applicable to the dependent of
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freedom fighters from the date of initial application made by late Satyeshwar Sharma to the respondents. ii)
Issue a writ, order or direction quashing the impugned
order
dated
05.05.2017
&
28.11.2017 passed by the respondent no.1 (respectively contained as Annexure Nos. 34 & 36 to this writ petition. iii)
Issue any other relief, which this Hon’ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner.
iv)
Cost of the petition be awarded in favour of the petitioner.” The writ courts under Article 226 of the
Constitution of India could be invoked by an aggrieved person for the enforcement of a fundamental right or because of a breach of a statutory right under law. It is also an equitable jurisdiction basically aimed at to dispense with substantial justice to the litigating party.
2.
This Court is conscious of the fact that
normally under the procedure which Writ Court has to follow is that when the writ petition, if it is sustainable on merits should be admitted and proceeded after an opportunity to the respondent to file the counter version. But the instant case which was filed on 29.1.2018, the same was placed before the Court for admission / hearing on 30.1.2018, considering the age of petitioner, the State Counsel was directed to seek an appropriate instructions from the State Government and the matter was posted thereafter for 01.2.2018. The matter was taken up and heard on 01.02.2018 and it proceeded on
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merits after receipt of instructions from the State by the respondents counsel. The parties were heard at length and the State Counsel has reiterated the stand / reasoning taken by the respondent in support of the impugned order. But looking to the wider interest of the litigating party who is now of 91 years of age, this writ petition is being decided on merits, at the admission stage itself, with the consent of learned counsel for the parties.
3.
Nothing could be a more pathetic litigation then
the case at hand, where a person who has devoted his life in procuring the freedom of the country our “Alma Mater” have been pursuing for the grant of freedom fighter pension under the Rules of 1975 ever since 05/03/1981, but without any result.
4.
This case reflects a very pathetic and arbitrary
attitude of the State where a freedom fighter who was almost of the age between 90 to 100 years was being asked to run from pillar to post, from one table to another to ensure that the benefit of the freedom fighter pension for which he claimed to be eligible under the Rules of 1975, is accorded to him. The records reveal that there was an absolute red tapism which prevailed with the office of respondent no.2, who for one reason or the another had been avoiding decision under various pretexts, which was carved out by the respondents to deny the freedom fighter pension to the late husband of the petitioner. It is pathetic to remark that this attitude of the State should have drawn a severe action against the
office
of District Magistrate and the
District
Magistrate himself as there had been a consistent
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harassment for decades together being caused to the person of about 90 to 100 years of age for all oblique and ulterior motive, that too contrary to earlier action of the State recognizing that late husband of petitioner was a freedom fighter.
5.
Brief backdrop as involved in the instant case
is that as per the records which has been placed by the petitioner in the present writ petition, who by now happens to be a widow of 91 years of age is claiming pension as a dependent of freedom fighter, the record reveals that the late husband of the petitioner late Mr. Satyeshwar Sharma had participated in the freedom movement as back as in 1942, when he was only a student of Class XII. On account of an alleged infringement of the provisions contained under Section 188 of the Indian Penal Code, as it then existed in 1942, he was sentenced and sent to jail and kept in confinement for 40 days w.e.f. 08.09.1942 to 17.10.1942 and was only released on serving the sentence on 18.10.1942.
6. husband
It is the case of the petitioner that her late was
arrested
on
02.9.1942
after
being
convicted under Section 188 of IPC on 08.09.1942 and remained in confinement from 08.9.1942 to 17.10.1942, i.e. for 40 days. Later on, it was only on 18.10.1942 that he was released from the jail after serving the sentence.
7.
It is the case of the petitioner further that on
account of the aforesaid conviction under Section 188 IPC, her late husband was rusticated from the school by the then Inspector of School, Meerut circle. The fact of
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the petitioner’s husband having being arrested and having undergone the sentence is also revealed from the transfer certificate which has been issued by the then Principal of D.A.V. Inter College, Dehradun, wherein, a reference of rustication finds place in the transfer certificate issued to the late husband of the petitioner. In support of the contention for the grant of the freedom fighter pension, the late husband of petitioner had also placed on record the certificate issued by the Jailor, District Jail Dehradun, wherein he fortified the fact that the late husband of the petitioner remained under custody for the aforesaid period of 40 days as given above and was released only after serving the sentence.
8.
Not only this even the President of the District
Board, Dehradun, Mr. N.D. Dangwal, had issued a certificate as back as on 30.7.1950, wherein he has yet again fortified the fact that the late husband of the petitioner was an ardent worker of Indian National Congress and had actively participated in the freedom movement of the country.
9.
In support of his version for the claim of the
Freedom Fighter Pension under the Rules of 1975, the late husband of the petitioner had also produced a certificate
of
two
co-freedom
fighters
issued
on
25.3.1986, wherein they have certified the fact that the late husband of the petitioner was put into the confinement after being sentenced by the British Government on account of his participation in the freedom movement.
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10.
Not only this, in the 25th year of celebration of
independence on the directions of the Government of India, when the Country was under the reins of the then the Prime Minister, it had rather recognized the services of invariably all the freedom fighters, including the late husband of the petitioner to whom the Collector Dehradun has issued a certificate as back as on 15.8.1972, certifying the fact of that of his participation in the freedom movement and having suffered the duress caused by the British Government. The said certificate was also counter signed by the President of Freedom Fighter Movement Samiti, which was also filed by the late husband of petitioner while applying under the Rules of 1975.
11.
When our country our Alma Mater was under
the phase of Indo-Pak war in the year 1971-1972, since the late husband of the petitioner, being an extremely a patriotic person, who had always been working in the interest of the country and had voluntarily extended his services as a social worker by giving voluntary service for civil securities during war.
12.
Yet again, this social work of the late husband
of the petitioner was also recognized by the Chief Warden of Social Civil Services, Dehradun as well as by the District Magistrate and a certificate in this regard was also issued in favour of the late husband of the petitioner on 28.12.1972. The aforesaid aspects which has chanced, ever since 1942 till the services of the late husband of the petitioner which was recognized by the government till 20.12.1972 are facts which have never
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been denied by any of the authorities at any point of time.
13. action
Even in accordance with the conduct and the of the
State
and its agencies since
they
themselves have been instrumental in issuing the certificates and documents after verifying the records about the participation of the late husband of the petitioner in freedom movement activities gives an unflinching conclusion that the late husband of the petitioner deserve to be awarded with the freedom pension under the Rules of 1975, as his claim for freedom fighter pension fell with the domain and norms as prescribed by the Rules of 1975.
14.
It is pathetic to observe that ever since the
enforcement of the rules in 1975, it was expected from a Welfare State, that atleast the State should itself have endeavoured and should have voluntarily extended the benefit of the freedom fighters pension invariably to all the freedom fighters instead of waiting for them to apply and to their dependents who were alive at the time, when the rules itself were enforced and the benefit accruing
under
the
rules
should
have
been
automatically given to them.
15.
When the freedom fighter pension was not
given to the late husband of the petitioner, hence he left remediless on 05.3.1981, he had represented the matter to the then Prime Minister Smt. Indira Gandhi, by filing the representation on 05.3.1981, before the Prime Minister Office, for the grant of freedom fighter pension. On the said representation as submitted by the late
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husband of the petitioner to the Prime Minister of the Country,
the
considering
Prime
the
Minister
same
office/respondent
responded
back,
made
on an
observation that since the issue pertaining to the grant of freedom fighter pension is an issue which is to be decided by the State Government, hence, the matter was referred back and was forwarded to the then Chief Secretary of Government of Uttar Pradesh, Lucknow (as it then was) for taking an appropriate decision. Ever since
12.3.1981
and
08.4.1981,
when
reminder
representation was submitted, no action has been taken on the representation/claim of the late husband of the petitioner and the matter remained pending.
16.
When despite of various efforts made nothing
positive was falling out from the office of the respondent no.2, the late husband of the petitioner submitted his representation to the State Government of Uttar Pradesh on 14.8.1997, praying for that since he fulfills all the eligibility criteria as per Rules of 1975 for the grant of freedom fighter pension, he may be granted the same within a reasonable time. To this communication dated 15.3.1981, to be read with the representation dated 14.8.1997, rather the then Secretary to the Government of
Uttar
Pradesh
vide
its
communication
dated
06.12.1997, has rather asked the late husband of the petitioner to apply afresh, in accordance with the rules in
the
prescribed
format.
In
compliance
of
the
communication dated 06.12.1997, the late husband of the petitioner applied afresh after fulfilling all the conditions as per the rules in the prescribed format before respondent no.2 on 01.5.1999 alongwith all documents.
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17.
Despite the fact that the application of the
late husband of the petitioner submitted on 01.05.1999 accompanied all the documentations required under Rules of 1975, yet again, the late husband of the petitioner was in the receipt of another communication issued
by
the
office
of
Additional
Secretary
on
24.8.1999, calling upon the petitioner to file a certificate of two co-freedom fighters identically placed and who are receiving the freedom fighter pension from the State. The late husband of the petitioner is said to have sent reply to the respondent to the letter of the Additional Secretary dated 24.08.1999, alongwith the certificate given by two co-freedom fighters by supplying the documents called for and yet again submitted the detailed representation on 30.8.1999, wherein, in the reply submitted, he prayed for that he has already applied under the prescribed format on 01.5.1999, along with all the requisite documents yet the action has not been taken for the payment of the freedom fighter pension.
18.
Sufficient
time
lapsed
and
ever
since
05.3.1981, till response of the late husband of the petitioner which was filed on 30.08.1999, in pursuance to Additional Secretary letter dated 24.08.1999, no action was taken even till the submission of the response by the petitioner on 30.8.1999. The petitioner was compelled to reiterate the claim by submitting a representation on 25.3.2000 before the then Joint Secretary, Uttar Pradesh. The said representation as submitted by the late husband of the petitioner on 25.03.2000 as a matter of fact, though was in
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continuation of his earlier efforts. But it was for the first time on 29.06.2010, a communication which was made by the late husband of the petitioner, was made to the Joint Secretary of the State of Uttarakhand after its creation on 09.11.2000, for grant of freedom fighter pension under the Rules of 1975.
19.
The representations thus submitted by the
petitioner on 05.3.1981, 01.5.1999, 30.8.1999 and lastly that on 29.06.2010, drew attention of the District Magistrate who vide an order dated 09.7.2010 had forwarded the representation of the petitioner to the Government of Uttarakhand for taking an appropriate steps to ensure the release and disbursement of the freedom fighter pension to the late husband of the petitioner and his dependants. The District Magistrate’s response dated 09.7.2010 on being placed before the Additional Secretary, his office had issued a direction on 02.11.2010 to the respondents to conduct an enquiry and to initiate the proceedings for payment of the freedom fighter pension.
20.
Uptill this stage what is revealed from the
record is that the respondent no.2, for undisclosed reasons had been calling upon the late husband of the petitioner often now and then asking him to file consecutive applications one after another with the modifications as he desired which was responded by late husband of the petitioner, but the manner in which the things have been proceeded with snail pace since 1981 till 2010, almost for last 29 years, it would amount to as if it was a deliberate act of the office of respondent no.2 to keep the issue alive by asking an old feeble freedom
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fighter who contributed in the freedom movement to run from one office to the another, from one table to another, with walking stick in his hand, to enforced his rights granted to him under the Freedom Fighter Rules of 1975.
21.
It was on 20.12.2010, the District Magistrate
while reacting to letter of Additional Secretary dated 02.11.2010, called for a report from S.D.M. to verify about the credentials of the late husband of the petitioner and his entitlement for the freedom fighter pension. Yet despite the report having being called the same was not submitted, hence the late husband of the petitioner on 25.2.2011 had yet again submitted a reminder to the Additional Secretary for an action on the basis of his letter dated 02.11.2010 issued to the office of District Magistrate.
22.
It is the case of the petitioner in the writ
petition further that in pursuance of the order of the District Magistrate dated 28.12.2010 calling for the report from the S.D.M., the same had been submitted and
the
office
of
the
District
Magistrate
had
simultaneously forwarded the said report to the office of the Joint Secretary for taking a decision and for further course of action.
23.
The catastrophy still persisted when despite of
there being a report of the S.D.M., which was forwarded by the office of the District Magistrate yet again without disclosing any reasons or providing opportunity of hearing to the late husband of petitioner, the office of the Joint Secretary for all ulterior intentions did not
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accept the propriety of the report and hence had rather remitted the matter back to the office of the Sub Divisional Magistrate vide its letter dated 11.3.2011 calling for a fresh report. Yet again the stalemate prevailed and no decision was taken even in pursuance to the letter of the Joint Secretary dated 11.3.2011. Ultimately left remediless, once again, the late husband of the petitioner had to represent his case to the Joint Secretary and by that time when he submitted his representation to the Joint Secretary on 06.8.2012, he had already attained the age of 95 years.
24.
Nothing could be more worse and shocking in
this administrative set-up of a welfare State where a freedom fighter ever since 1981 till 06.8.2012 i.e. almost for 31 years approximately, had been running from one office to another for the fulfillment of his legitimate claim of the grant of freedom fighter pension but all his efforts has been ruined and rendered in vain. It could be said that all these actions of the State authorities would amount to be an absolute and utter disrespect to a senior citizen and in particular a freedom fighter who has contributed in the freedom movement against the British regime, and had suffered their wrath for the country.
25.
In pursuance to the letter of the Joint
Secretary dated 11.3.2011, the respondent authorities yet again went in a deep slumber and it was lastly that after a lapse of about more than one and a half year, a report was submitted by the S.D.M. to the office of the District
Magistrate
on
03.12.2012.
The
District
Magistrate for the undisclosed reasons and without
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assigning any
specific
reason
or
after
giving
an
opportunity of hearing has yet again not accepted the report of the S.D.M. dated 03.12.2012 and has rather once again remitted the matter to the office of A.D.M. (Administration) calling upon him to give a fresh report and with a clear recommendation.
26.
In response to the correspondence dated
20.2.2013 from the office of the District Magistrate, the A.D.M. (Administration) vide it letter dated 02.4.2013 has directed the Sub-Divisional Magistrate to provide a clear recommendation. Thereafter, it is shown that the District
Magistrate
vide
its
communication
dated
04.4.2013 to the A.D.M. Administration; Jailor, District Jail Dehradun; and to the S.D.M. proposed to hold the meeting on the issue which was scheduled to be held on 08.4.2013 for taking a decision pertaining to the payment of the freedom fighter pension to the late husband
of
the
petitioner.
Jail
Superintendent,
Dehradun vide its report dated 08.4.2013 (annexure 22) had rather again fortified and reiterated the fact that the late husband of the petitioner was put in custody for an offence under Section 188 IPC w.e.f. 08.9.1942 till 17.10.1942 for a period of six weeks, i.e. 40 days and was only released on 18.10.1942.
27.
There is another report which has been
submitted on record by the Sub-Divisional Magistrate on 24.7.2013 in which he has observed that after enquiring and on the basis of the report submitted by the Tehsildar, it has been upheld that the late husband of the petitioner had been sent to the jail in 1942 and he too placed reliance on the certificate issued by the Jail
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Superintendent on 07.3.2013, to the said effect showing that late husband of petitioner was in jail for 40 days undergoing his sentence under Section 188 IPC. While giving his report to the District Magistrate, the SubDivisional Magistrate on 24.7.2013 has further observed that the late husband of the petitioner was honored by the District Administration on 25th year of independence and hence as a matter of fact, the enquiry report of Tehsildar, the report of the Jail Superintendent, the report of the Sub-Divisional Magistrate, the certificate of the
co-freedom
fighters,
the
rustication
transfer
certificate, all these documents compositely show and lead to an unflinching inference and unrebutable conclusion that the late husband of the petitioner was a freedom fighter who had actively participated in the freedom movement of the country.
28.
The red tapism even did not conclude and
cease to exist at this stage even when despite of the fact that all the proceedings and documentations stood completed before respondent no.2, but no decision was taken and by that time gradually the late husband of the petitioner has attained the age of about 97 years. This Court expresses its grievance, concern and anguish as to the manner how the administration has dealt with a senior citizen of 97 years of age for last about more than 31 years and that too when it is proved by documents that he was a freedom fighter, being oblivions of the fact that he was claiming the legitimate claims of freedom fighter pension under the Rules of 1975 for which he was otherwise entitled and that too when his act of freedom movement stood recognized by the District
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Administration ever since 1972, yet the same was not paid to him.
29.
There was no justified reason either before
respondent no.1 or before respondent no.2 to invariably call
recurring
reports
and
recurring
better
recommendations, more particularly, when the favorable reports and recommendations from the authorities who were otherwise required to submit their report under the Rules of 1975 was already there on record ever since 08.3.1981 and furthermore, these documents were also filed at a later stage, along with the applications submitted
by
late
husband
of
the
petitioner
on
01.05.1999 when he was called upon to submit an application in the required format by order of Secretary to Government of U.P. on 06.12.1997.
30.
Hence as a matter of fact, the records shows
that there was no legally sustainable valid reasons or less justified reasons with the respondent for derilicting to take a decision on the issue for the grant of freedom fighter pension to the late husband of the petitioner and absolute malice and arbitrariness is to be attributed to respondent no.1 because yet again on 26.9.2013, for no valid reason, without superseding earlier report and recommendation, the Joint Secretary to the State who is an agent and a public servant has called for a fresh report from the District Magistrate under the pretext that a better recommendation is required for, for enabling decision making process. This philosophy of calling for a cumulative and better recommendation is unheard of. The recommendation is a recommendation in itself, it cannot be classified or sub classification as to
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be a poor or a better recommendation, as rules do not prescribe or categorize a report or recommendation as to be better, less better or any other sub category of recommendation.
31.
The aforesaid analogy and rational is more
shocking particularly, when the Joint Secretary’s letter dated 24.9.2013 had not pointed out any mistake or any anomaly or any defect in the earlier recommendations and the reports which has been submitted by the Superintendent of Jail, by the Tehsildar, by the SubDivisional Magistrate and other competent authorities which was already on record, hence the communication on 26.9.2013 of Joint Secretary was nothing but a camouflage to avoid a decision for the payment of the freedom fighter pension to the late husband of the petitioner, and that too for undisclosed reason.
32.
Having fatigued in his efforts and having found
that his grievances stand avoided to be redressed by the respondent for no valid reason, having found himself to have failed to avail a legal benefit which he was otherwise legally entitled to receive, he ultimately had to file a representation before the then Hon’ble Chief Minister of the State on 06.11.2013. Even so much so that the late husband of the petitioner also met the Chief Minister personally for the vengeance of his grievance and for the grant of his valid claim of freedom fighter pension. The Chief Minister too at that stage also, instead of taking any positive decision had in a routine manner made an endorsement and directed the Principal Secretary to look into the matter and he too has turned blind eyes and has absolutely extended
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disrespect to an aged freedom fighter who was of 98 years of age by then. However, the Hon’ble Chief Minister, while asking the Principal Secretary to look into the matter he has directed the Secretary to pay a sum of Rs.50,000/- to the late husband of the petitioner as if the State was doing a charity to a freedom fighter while recognizing his services to the nation by extending an assistance of a poultry sum of money.
33. too
The arbitrariness did not ceased at this stage itself,
because
despite
of
their
being
a
recommendation made by the Chief Minister for the payment of Rs.50,000/-despite of their being a sanction made by the Governor of the State on 31.1.2014 for the payment of Rs.50,000/- yet again a lull prevailed and no decision was taken nor any amount was disbursed. Ultimately, on 23.2.2014, after about two and half month, the petitioner was given a cheque of half of the amount of Rs.25,000/-. The late husband of the petitioner being a person who carried his self pride and respect as it would be apparent from his conduct from since 1942 till the amount was sanctioned by Chief Minister on 06.11.2013, that since the time when he participated in the freedom movement, he felt that payment of half of the amount which stood sanctioned by
the
Governor
on
31.01.2014
is
a
disgraced
recognition of his contribution given as a freedom fighter in the freedom movement and getting the freedom of the country and hence he refused to accept the cheque as he felt that it was a humiliation which was extended to him by State and its agencies.
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34.
No action was taken since 1981 till 2014, i.e.
or last 33 years by them.
35.
Ever
since
the
claim
which
was
being
consistently agitated by the late husband of the petitioner since 05.03.1981, under the Rules of 1975 which was enforced w.e.f. 06.8.1975 continued to be in vogue while the claim was pending consideration. Rule 12 of Rules of 1975, which dealt with enabling provisions provides as under:“bl fu;ekoyh es fdlh ckr ds gksrs gq, Hkh ljdkj fdlh ,sls O;fDr dks] ftlus jk"Vz~h; Lora=rk laxzke es Hkkx fy;k gksA Lora=rk laxzke es mlds lsok dk;Z dks ns[krs gq,] ßLora=rk laxzke isa”kuÞ ßLora=rk laxzke ikfjokfjd isa”kuÞ ;k ßvuqnkuÞ Lohd`r dj ldrh gSA” 36.
The provisions of Rule 12 on its simple reading
would rather be having an overriding effect to any of the covenants of the Rules of 1975, which could have created an impediment in awarding the freedom fighter pension to a freedom fighter, because the legislature by the use of non obstinate clause in Rule 12, it contemplates a grant of Freedom Fighter Pension irrespective of any of the restrictions or conditions required to be fulfilled for the grant of freedom fighter pension under the Rules of 1975. Hence, it could be said that by virtue of Rule 12 it was having an overriding effect to the conditions contained under the Rules of 1975, for the grant of freedom fighter pension. The petitioner ultimately having failed to achieve the desired result of his efforts of the grant of the freedom fighter pension which in itself has a recurring action as the accrual of freedom fighter pension germinates and takes birth each day and cannot be diluted or dissolved with the passage of time.
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37.
On reading of Rule 12 read with Rule 2 Ka of
the Rules of 1975, dealing with the parameters for the grant of freedom fighter pension, it grants the latitude to the State Government that irrespective of any of the condition contained under the Rules itself for entitling a freedom fighter for getting the Freedom Fighter Pension, may in an appropriate cases, may grant Freedom Fighter Pension, irrespective of the modalities provided under the Rules. Meaning thereby, Rule 12 as enforced by the Rules of 1975, contains a non obstinate clause, it widens the scope of Rule 2 Ka dealing with modalities. In the instant case, the claim of late husband of the petitioner
has
matured
immediately
after
the
enforcement of the Rules or atleast when he for the first time has represented before the Prime Minister of the Country on 5th March, 1981 for the grant of Freedom Fighter Pension. Hence, his status for entitlement has to be determined either at the stage when the Rules were enforced or atleast at the stage when he had applied for the grant of Freedom Fighter Pension. Any amendment or omission made to Rule 12 by the amendment of 2014 will not affect the right which has matured way back in 1975 or atleast in 1981, as the case may be.
38.
The use of word “notwithstanding” in Rule 12,
contemplates that inspite of any Standing Condition provided under the Rules, for the time being enforced when the claim matured with enforcement of rules, or when it was actually raised, it will have an overriding effect and thus, inspite of the conditions of Rule 2 ka,
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Rule 12 would have an overriding effect and will prevail over any other conditions prescribed under the rules.
39.
The
Hon’ble
Apex
Court
in
a
judgment
reported in AIR 1972 SC 1295, Isher Das Vs. The State of Punjab, had considered the import of the term “notwithstanding” as to what effect it would be having with regard to the circumstances and law prevailing while considering an issue under a given set of circumstances and law prevalent at the time. When the Legislature carves out an exception by providing a non obstinate clause in Rule 12, it goes without saying that it would be having an overriding effect to the convonent to the Rule 2 Ka in the instant case and would widen the scope of enforceability of the rules, where it is absolutely a prerogative of the State Government to have considered the impact of Rule 2 ka and ought to have extended the benefit looking to the documentations which has already placed on record by the late husband of the petitioner.
40. SCC
A renowned judgment reported in (1973) 4 225,
His
Holiness
Kesavananda
Bharati
Sripadagalvaru Vs. State of Kerala and another, in its para 394 has interpreted the import of the effect of the use of word “notwithstanding” by inferring it that it widens the scope of implication of the Rules or the provisions of the law.
Para 394 of the said judgment
reads as under :“394. If the words "notwithstanding anything in the Constitution" are designed to widen the meaning
of
the
word
"Amendment
of
the
Constitution" it would have to be held void as
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beyond the amending power. But I do not read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment. Similarly, the insertion of the words "in exercise of its constituent power" only serves to exclude Article 248 and Entry 97 List I and emphasize that it is not ordinary legislative power that Parliament is exercising under Article 368 but legislative power of amending the Constitution.”
41.
The Hon’ble Apex Court further in a judgment
reported in AIR 1973 SC 2204, Union of India Vs. I.C. Lala etc., in its para 6 provides that the word “notwithstanding” used by Legislature, it carves out an exemption from the principle provision of the principle law itself, wherein, it widens the scope of application of a Rule or the law as existing at the relevant time without being influenced by the straight jacketed formula for considering the claim.
42.
In the instant case, since by virtue of Rule 12
of the Freedom Fighter Independence Rule, 1975, the Rule 12 carves out an exception of Rule 2 Ka because of the use of the word “notwithstanding” in Rule 12. It has to be construed liberally if a freedom fighter otherwise satisfies the basic conditions for the grant of Freedom Fighter Pension. Even otherwise also under Rule 12, it is always open to the State Government that on being satisfied that an individual has contributed in the freedom movement irrespective of Rule 2 Ka, still the Freedom Fighter Pension could be granted freedom fighter pension.
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43.
The Full Bench of Madhya Pradesh in a
judgment reported in AIR 1953 M.B. 217, Gokul Das and others Vs. Mohan Kunwar Bai and another, had an occasion to deal with the effect of the word “notwithstanding”.
It provides that when a Rule is
supported with the non obstinate clause, it only overrides the provisions and they do not limit the deprivation of jurisdiction to deal with the cases within the parameters as provided under the Rules.
44.
The precise intention as it has been laid down
by the Hon’ble Apex Court and various other High Courts with regard to the effect of a non obstinate clause in the aforesaid judgments was that when a law provides the applicability of the Rule or an Act subject to other provisions of the Constitution, it means that it should be given reasonable interpretation, and such interpretation would aim at to carry out intention of the Rules which would
be
the
subject
to
the
provision
of
the
Constitution, meaning thereby, the provision of the Constitution which are latter in effect will prevail over the pre existing laws made by the competent authority.
45.
In the instant case, too, Rule 12 of the rules
since has an intention that other provisions of the Rules of 1975 would be subject to the provisions of Rule 12, in that situation, Rule 12 will have a precedent in its applicability for extending the benefit of Freedom Fighter Pension to the freedom fighters who are otherwise eligible on account of the contribution made by them in the freedom movement.
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46.
In a recent publication as published on 30th
January, 2018 in a local daily, a very pathetic state of affairs of State have been reported where there were various widows of the Freedom Fighter and those of the warriors of the Second World War, who have been recognized for the ardent services rendered by their husband for the nation and, therefore, their pension was accorded after recognition of the services of their husband in the freedom movement on attaining 74 years of age in case of Aanuli Devi and after 90 years in case of Parvati Devi respectively, it is undoubtedly a very sorry state of affairs.
47.
As a matter of fact, this attitude which has
been adopted by the State inderilicting or delaying the grant of Freedom Fighter Pension in case of petitioner is not an isolated example as that of the petitioner, but rather it has occurred in number of other cases where the pension has been avoided to be paid irrespective of the fact that the State authorities has been utilizing the coffers of the State and public money for many other beneficial purposes of their own officials and thereby avoiding the extension of benefit to the freedom fighters who had contributed in the Freedom Movement for achieving the Independence of the Country, despite of fact being permissible under Rules of 1975. One of such example happens to be that of another freedom fighter i.e. Khashti Devi (widow of freedom fighter) who too was identically treated by the State and the freedom fighter pension was not paid consequently, she was constrained to file a writ petition before this Court being WPMS No.1031/2008.
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48.
The conditions which was prevailing in the
said writ petition was that the petitioner of WPMS No.1031/2008, Nand Kishore Harbola who was said to have participated in the Freedom Fighter Movement was sentenced to jail till rising of the Court and imposed a fine of Rs.30. It was only on the judgment having being rendered by this Court on 13.8.2010, the Freedom Fighter Pension was paid to the widow. It is the case of the petitioner that the Freedom Fighter Pension has been disbursed to the widow of late Nand Kishore Harbola, under the aforesaid condition of sentence imposed on him.
49.
There had been other examples brought on
record by the petitioner where a freedom fighter pension was paid to Mr. Dharam Veer Singh by the State by invoking the enabling provision of Rule 12, who too was identically punished under Section 188 of Indian Penal Code and had been directed to undergo confinement for a period of one month. There had been many more such examples for example that of Mr. Keshav Dutt Pargai and Harish Chand Daundiyal who too were granted the benefit of Rule 12 as it then existed and they were paid with the freedom fighter pension.
50.
Despite of the aforesaid facts and conditions
and despite of the fact that the State has already taken the decision, enforced the same and had granted the Freedom Fighter Pension to other co-freedom fighters who had undergone a lesser sentence as inflicted on the late husband of the petitioner, and the freedom fighter pension was given to them by invoking the provisions of Rule 12, there was no valid reason available with the
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respondent as to why the same benefit under Rule 12 was declined to be extended to the late husband of the petitioner while they rejected the claim of the late husband of the petitioner by the order dated 13.8.2015.
51.
On scrutiny of the order dated 13.08.2015 for
rejecting the claim of Freedom Fighter Pension to the late husband of the petitioner, the sole reason which has been attributed in the order dated 13.8.2015 for declining to extend the benefit of the freedom fighter pension to the late husband of the petitioner on 13.08.2015 was the amendment which has been made in the Rules of 1975, whereby the Joint Secretary in his order dated 13/08/2015 while declining pension has observed that the case of the late husband of the petitioner did not fall within the ambit of the amended Rules of 2014, no exemption from the effect of Rule 2 Ka could be granted and thus declined the freedom fighter pension.
52. The late husband of the petitioner for enforcement of his claim for grant of freedom fighter pension filed a Writ Petition No. 2313 of 2014, for a writ of mandamus, which remained pending. During the pendency of writ petition, respondent passed an order dated 13.08.2015, thereby, declined to grant freedom fighter pension. The late husband of the petitioner having faced with the order dated 13.8.2015 rejecting the claim, brought the fact on record about passing of order dated 13.08.2015 in the Writ Petition No.2313/2014 which was disposed by the coordinate Bench of this Court vide its judgment dated 29.3.2017, directing the respondents to take an appropriate decision on the claim in accordance with
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law, within a period of six weeks.
The directions, as
issued reads as under:“4.
The petitioner approached this Court
highly belatedly in the year 2014. However, during the pendency of the present writ petition an order has been passed on 13.08.2015 by the Additional Secretary, Government of Uttarakhand stating that the petitioner cannot be given freedom fighter pension as he is not covered or defined as “freedom fighter” under the 1975 Rules. 5. All the same, no reasons have been assigned by the concerned authority apart from barely stating the Rules. 6. In a normal course, this Court would have dismissed the writ petition on ground of laches because it has been filed after an inordinate delay, but considering that what is there before this Court is a claim of a person, whose claim is of a freedom fighter, this Court feels that the Government must pass a detail order in accordance with law after examining the case of the petitioner in detail. 7. In view of the aforesaid, the writ petition stands disposed with the direction to the State Government to decide the case of the petitioner in accordance with law as expeditiously as possible, but within a period of six weeks from the date of production of a certified copy of this order, by passing a speaking order.”
53.
As a matter of fact and also in accordance with
the legal inference which could be drawn on the basis of the
judgment
dated
29.3.2017,
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the
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observation made in para 5 of the judgment to the following effect :“5. All the same, no reasons have been assigned by the concerned authority apart from barely stating the Rules.”
54.
The effect of observation made by Coordinate
Bench in its judgment dated 29/03/2017, particularly in para 5 would be that the order of denial of Freedom Fighter Pension as made by the order dated 13.8.2015 by the Joint Secretary was nullified and that is why the Coordinate Bench of this Court had issued a direction to the respondents to take a fresh decision being conscious of the fact that there existed an order dated 13.8.2015, hence by implication of the judgment rendered by this Court on 29.3.2017. The effect of the order dated 13.8.2015 denying the freedom fighter pension stood vanquished and non existent.
55.
Being
partly
aggrieved
by
the
decision
rendered by the coordinate Bench of this Court on 29.3.2017, the late husband of the petitioner preferred a special appeal being Special Appeal No.131/2017 in which he has prayed for quashing of the order dated 13.8.2015. The special appeal too was disposed of on 26.4.2017 by the Division Bench of this Court with the following observations:“We have considered the submission of learned counsel for the parties and have perused the papers available on record. We are of the view that we should not interfere with the order passed by the learned Single Judge; but, considering the fact that the stipulated period (six weeks) for deciding the case of the appellant has already elapsed and further considering the fact that the appellant is about 100 years of age, we direct the State Government to take
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WWW.LIVELAW.IN 28 final decision in the matter of the appellant positively within a period of two weeks from today.”
56.
On the matter being remitted back by the
judgments of the coordinate Bench of this Court and that of the Division Bench on 29.3.2017 and 26.4.2017 respectively, the State by the impugned order dated 05.5.2017 rejected the claim of the petitioner on an absolute misinterpretation of the observation made by the Court and by extracting part of the judgment and misinterpreting its intention the inference pertaining to the latches, pertaining to the import of the order of rejection dated 13.8.2015 has been wrongly interpreted while passing the impugned order dated 05.5.2017.
57.
The direction issued by the Division Bench of
this Court for deciding the claim of freedom fighter pension afresh, was to be done in accordance with law, it does not mean that the decision which was required to be taken by the respondent was to be dehors to the interpretation of the Rules of 1975.
58.
In accordance with the findings recorded, in
the impugned order dated 05.05.2017, it is quite apparently
admitted
by
the
respondent
that
the
petitioner did satisfied the condition by virtue of the documents
produced
application
and
they
by
him
were
in
also
support fortified
of
his
by
fact
pertaining to the recognitions granted to the late husband of the petitioner by the State in 1972 and the benefit extended by the Chief Minister and the His Excellency the Governor of State of Uttarakhand on 16.11.2013.
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59.
These actions taken by State and its agencies
would amount to be an admission and recognition by the respondents of the status of the late husband of the petitioner, as to be that of a freedom fighter. It was for the first time when the decision was being taken by the impugned order dated 05.05.2017 after the judgment of this Court rendered on 29.03.2017, the respondent no.1 had interpreted Rule 2 ka of the Rules which classifies the Freedom Fighter. Rules 2 ka reads as under:“ 2& bu fu;eksa esa tc rd fd izlax }kjk vU;Fkk visf{kr u gks] d& LorU=rk laxzke lsukuh dk rkRi;Z mRrj izns”k ds ,sls vf/k”kklh O;fDr ls gS ftlus Hkkjrh; Lora=rk laxzke esa Hkkx fy;k gks vkSj ftlds }kjk bu dk;Zdykiksa esa Hkkx ysus ds QyLo:i de ls de nks ekl dh vof/k ds fy, dkjkokl dk naM Hkksxk x;k gks] ;k ftls utjcUnh ;k vaMj Vz~k;y dSnh ds :i esa tsy esa de ls de rhu ekl dh vof/k ds fy;s j[kk x;k gks] ;k ftlus de ls de 10 csrksa dh ltk Ikk;h gks ;k tks Qjkj ?kksf’kr fd;k x;k gks] ;k mDr Lora=rk laxzke esa xksyh ls ?kk;y gqvk gks] ;k ftlus ohjxfr izkIr dh gksA fVIi.kh& 1 fuUufyf[kr Js.kh esa vkus okys O;fDr Lora=rk laxzke lsukuh dh mDr ifjHkk’kk esa lfEefyr ekus tk;saxs%& d & ,sls O;fDr tks is”kkoj dkaM esa jgs gksa] [k & ,sls O;fDr tks HkwriwoZ vktkn fgUn QkSt ds izekf.kr lSfud vFkok HkwriwoZ bf.M;k bfUMisUMsUl yhx ds izekf.kr lnL; jgs gksa ” 60.
On a simple interpretation of Rule 2 ka, it
provides that the confinement has to be for atleast for a period of two month to entitle a freedom fighter for a pension, if involved in
freedom movement. While
interpreting the impact of Rule 2 ka the respondent no.1 has lost sight of the fact that Rule 2 ka was not an imperative provision because as a matter of fact, the sole intention of rules was to recognize the contribution by a freedom fighter which he or she has given in the freedom
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movement
for
getting
freedom
from
the
British
Government. 61.
At the time when the decision was required to
be taken when the claim for grant of Freedom Fighter Pension matured under the Rules of 1975. Rule 12 was very much in existence in the statute which was having an overriding effect to any of the conditions of the rules for the grant of Freedom Fighter Pension. Hence as a matter of fact when the consideration was being made by the State on the application of the late husband of the petitioner, he was entitled to be extended with the benefit of Rule 12.
62.
The other reasons which has been assigned by
the respondent in the impugned order dated 05.05.2017 for declining to grant the freedom fighter pension is based upon the wrongful interpretation of Rule 12 which they contend that the said rules have been omitted by the amendment made on 31.1.2014, when the order dated 13.08.2015 or order dated 05.05.2017 was passed, hence, the benefit of saving clause was not available. Rule 12 in itself was having an overriding effect on the conditions of entitlement provided in the Rule 2 Ka. Once the omission of Rule 12 was enforced for the first time w.e.f. 31.1.2014, it would only apply to those cases where the claim for grant of freedom fighter pension itself was raised after 31.1.2014 under the existing
rules
applicable
after
31.01.2014.
This
amendment by way of omission made on 31.1.2014 would not have a retrospective effect as being the beneficial legislation, its effect on the status to a freedom fighter has to be considered on the basis of law as existing on the date when the rules itself was
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enforced
i.e.
on
06.8.1975
or
when
the
actual
entitlement accrued to the late husband of the petitioner or when it was claimed before competent authorities. Furthermore, in the instant case, when the claim itself was raised in 1981, when Rule 12 was itself existing in the statutes.
Otherwise, it will amount as if the
respondents were awaiting the omission of Rule 12 from the Rules.
63.
The reason which has been assigned by the
respondents in the impugned order dated 05.05.2017, while declining to grant the Freedom Fighter Pension was that the deceased husband of the petitioner did not fulfill the condition stipulated under Rule 2 Ka and the reason
was
that the exemption
or
latitude
from
complying with the condition of Rule 2 Ka cannot be accepted because of the fact that the enabling provision as contained under Rule 12 has been omitted by the Government order No. 141/XX(5)/14-28(Sw.Sang.Sai.) /2005 dated 31st January, 2014.
The respondents,
while drawing the impact of the omission of Rule 12, have failed to take into consideration Clause 3 of the Rules which reads as under :“3.,sls fujlu ds gksrs gq, Hkh] ewy fu;ekoyh ds v/khu dh x;h dksbZ ckr ;k dk;Zokgh ewy fu;ekoyh ds rRLFkkuh micU/kksa ds v/khu dh x;h le>h tk;sxhA”
64.
On reading of Rule 3 of the Amending Rules of
2014, it intended to postulate that despite of omission of Rule 12, any act done under the principle rules or any proceeding
taken
under
the
principle
rules,
as
applicable at that point of time, would be deemed to be under the un-amended Rules of 1975. Even according
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to this amended Rules of 2014, it will not come to picture to create any restriction for grant of freedom fighter pension to the late husband of the petitioner because under the saving clause, it provides that any proceeding drawn under the old Rules since was to be deemed under the old Rules, the omission or Rule 12 will not have any effect. Thus, the reason assigned in the impugned order is untenable.
65.
The aforesaid contention further fortifies the
provisions contained under the U.P. General Clauses Act of 1904. It provides that until and unless there is an expression, omission, insertion or substitution in the amending enactment, if it is subsequently repealed, it shall
not affect
the
continuance
of any
such
amendment and proceeding taken thereto made by the enactment so repealed in operation at the time of repeal.
66.
While comparing the amending law not
containing repealing clause or amending law without repealing clause, the effect of implied repeal, what is to be scrutinized is as to whether the law as existing have an overriding effect of the earlier law or was in consistent with the earlier law and as to whether both the laws, which provided a forum, cannot stand together if the later law is not capable of taking place of the earlier law because of the nature of dispute which could have been entertained and detriment under the old Act. In such a contingency, the earlier law would continue to operate and to deal with cases covered under its jurisdiction, by widening the scope
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of jurisdiction by amended provision will not oust the jurisdiction of old forum, in such a circumstance the role of implied repeal often resulted into a vacuum, where there would be no forum available for redressal of a grievance by a competent authority during the transitional period. Hon’ble Apex Court in Lal
Shah
Baba
Dargah
Trust
V.
Magnum
Developers and others; AIR 2016 SC 381 in its para Nos. 32 and 36 held as under:“32. The principle of implied repeal was considered by three Judges Bench of this Court in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla: AIR 1986 SC 1043, this Court held thus: “......An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law, that is, where the two laws -- the earlier law and the later law -- cannot stand together. This is a logical necessity because the two inconsistent laws cannot both be valid without contravening the principle of contradiction. The later laws abrogate earlier contrary laws. This principle is, however, subject to the condition that the later law must be effective. If the later law is not capable of taking the place of the earlier law and for some reason cannot be implemented, the earlier law would continue to operate. To such a case the Rule of implied repeal is not attracted because the application of the Rule of implied repeal may result in a vacuum which the law-making authority may not have intended. Now, what does Appendix II contain? It contains a list of subjects and marks assigned to each of them. But who tells us what that list of subjects means? It is only in the presence of Rule 11 one can understand the meaning and purpose of Appendix II. In the absence of an amendment reenacting Rule 11 in the 1947 Rules, it is difficult to hold by the application of the doctrine of implied repeal that the 1950 Rules have ceased to be applicable to the ministerial establishments of the subordinate civil courts. The High Court overlooked this aspect of the case and proceeded to hold that on the mere reintroduction of the new Appendix II into the 1947 Rules, the examinations could be held in accordance with the said Appendix. We do not agree with this view of the High Court.
36. In the case of Harshad S. Mehta v. State of Maharashtra (2001) 8 SCC 257, a three Judges Bench of this Court considered the principle of implied repeal and held: “31. One of the important tests to determine the issue of implied repeal would be whether the provisions of the Act are irreconcilably inconsistent with those of the Code that the two cannot stand together or the intention of the legislature was only to supplement the provisions of the
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WWW.LIVELAW.IN 34 Code. This intention is to be ascertained from the provisions of the Act. Courts lean against implied repeal. If by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible, implied repeal shall be avoided. It is, however, correct that the presumption against the intent to repeal by implication is overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing laws. Repugnancy must be such that the two statutes cannot be reconciled on reasonable construction or hypothesis. They ought to be clearly and manifestly irreconcilable. It is possible, as contended by Mr. Jethmalani, that the inconsistency may operate on a part of a statute. Learned Counsel submits that in the present case the presumption against implied repeal stands rebutted as the provisions of the Act are so inconsistent with or repugnant to the provisions of the earlier Acts that the two cannot stand together. The contention is that the provisions of Sections 306 and 307 cannot be complied with by the Special Court and thus the legislature while enacting the Act clearly intended that the said existing provisions of the Code would not apply to the proceedings under the Act. Learned Counsel contends that this Court will not construe the Act in a manner which will make Sections 306 and 307 or at least part of the said sections otiose and thereby defeat the legislative intendment whatever be the consequences of such an interpretation.”
67.
Under Section 6 (c) of U.P. General Clauses
Act, 1904, while dealing with the chapter of General Rules of construction, has provided that where any Act or enactment which would include the Rules if made unless it expresses a different intention, it shall not effect any right, privilege, obligation or liability acquired or accrued under any enactment so repealed. It is also
not in dispute that while dealing with the issue of repeal in a nutshell, it has held that as a matter of fact, there is no transitional provision to continue with the proceedings or proceedings before any other forum before which the proceeding was cognizable and was pending when amendment was made with Section 6 of the U.P. General Clauses Act, 1904, has dealt with effect of repeal and reads as under: “6. Effect of repeal. – Where any Uttar Pradesh Act repeals any enactment hitherto made
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or hereafter to be made, then, unless a different intention appears, the repeal shall not – (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d)
affect
any
penalty,
forfeiture
or
punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy may be enforced and any such investigation or legal, proceedings may be continued and concluded, and any such penalty, forfeiture
or
punishment
imposed
as
it
the
repealing Act had not been passed.”
68.
On a plain reading of under Section 6 of the
U.P. General Clauses Act, 1904 which provides with as to what would be the effect of repeal of the preexisting law because of the amended provision, the prime consideration provided is the intention of the repeal, as to what bearing it intends to have an
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impact on the existing law at the time of repeal, but then in such a situation what was the intention of amending act is to be seen. 69.
There is another aspect of the matter, the
interpretation given to Rule 2 ka by the respondent while declining to extend the benefit is based upon a wrongful interpretation of the rules itself, for the reason the rule which creates an embargo lays the eligibility criterion, as per it, it provides that a freedom fighter to make himself entitled for pension should have been in confinement for a period of atleast two months. It further carves out various other conditions, meaning thereby, the rule itself was not absolute if the conditions contained therein is read with Rule 12 as it then existed when late husband of petitioner raised his claim fro grant of freedom fighter pension, he would be entitled for freedom fighter pension.
70.
Apparently in the present case, it is also
proved from the documents on record and not disputed by respondents also at any stage and as certified by the Jail Superintendent, the late husband of the petitioner had
been
in
confinement
from
“08.9.1942
17.10.1942” and was released from jail
to
only on
18.10.1942 and as such on this count also as he was in jail for atleast one month 16 days, i.e. major period of confinement as per Rule 2 Ka, because no sane person at the time when he was being sentenced by the British Government for his or her involvement in freedom movement could have perceived the cut off period of confinement to make himself eligible for grant of freedom fighter pension, hence, there is no logic to deny
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pension based on period of sentence, participation in movement if proved would be sufficient. Thus, it seems that order of rejection impugned in the writ petition is an absolutely based on non application of mind and not even by considering bare facts on records and hence cannot be sustained.
71.
There is another aspect pension or a freedom
fighter pension in its literal terms means that it is the subsistence by the State to an employee or a freedom fighter in the instant case by way of recognition of his ardent and efficient service, either as a public servant or as a freedom fighter for the nation who has rendered their services for the country selflessly at the time when sentenced without any beneficial motive and with utmost dedication for getting the freedom of the country from the Britishers’ rules only intend to recognize their selfless service to the nation. The recognition or pension will always have a civil consequence because denial of the same would result into a deprivation of a civil right which otherwise has accrued to the freedom fighter under the Statutory Rules of 1975, and which has been given to other freedom fighters.
72.
The case of late husband of the petitioner the
decision taken by the Division Bench directing the respondents to decide the issue afresh never observed that while decision was being taken in negative by the late husband of the petitioner was not required to be heard, more particularly, when his civil rights were being considered under the statutory Rules, and on perusal of the impugned order dated 05.5.2017, does not record any finding that the late husband of the
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petitioner was ever heard prior to passing the order and hence apparently the order of denial either it is order 13.8.2013 or that of 05.5.2017 were without providing any opportunity of hearing to the late husband of the petitioner, or to the petitioner herself, hence, it violates the principles of natural justice too and hence it cannot be sustained in the eyes of law.
73.
There is another aspect of the matter, which
reflects the malicious intention and arbitrariness of the State, because looking to their conduct of their officials it shows that there had been a deliberate effort of avoidance (for reasons known to them) to extend the benefit of freedom fighter pension to the late husband of the petitioner. This could be attributed and inferred from the communications which were unnecessarily made, were absolutely illogical and uncalled for. The consecutive reports, the consecutive communications for procuring
cumulative
furthermore
from
13.8.2013
when
the the
recommendations fact
that
rejection
the
was
order
made
and dated by
the
respondent it was on the ground that the claim of the petitioner was not within the ambit of the Rules of 1975, as observed by the Coordinate Bench in its judgment dated 29.03.2017, but while passing impugned order dated 05.5.2017, rather the respondents have qualified the grounds for rejection which were otherwise could be said to be existing then but did not constitute the basis when the earlier order was passed. This shows malicious bend of mind of the respondent of deliberately not to grant the freedom fighter pension to late husband of petitioner.
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74.
On
17.9.2017, the
late
husband
of
the
petitioner submitted a representation to the Chief Minister which too has been rejected by one of the impugned orders dated 28.11.2017. Even before the order dated 28.11.2017 could have been communicated in the meantime, the late husband of the petitioner met with the sad demise on 22.11.2017. Hence, as a matter of fact, the impugned order dated 22.11.2017 was passed against a dead person.
75.
Looking to the above reasons, the impugned
order dated 05.5.2017 and 28.11.2017 cannot be sustained in the eyes of law as having based upon malafide arbitrariness without application of the mind and dehors to the rules of 1975, apart from being violative of Article 14 and 21 of the Constitution of India, hence, deserves to be quashed.
76.
The Hon’ble Apex Court in Kamlabai Sinkar
vs. State of Maharashtra & others reported in (2012) 11 SCC 754; in its para nos.8, 9 & 10 which is quoted here under:8. Keeping the above brought principles in mind when we analyse the claim of the appellant’s husband, we find that the appellant’s husband had filed along with his application 05.8.1995, a host of documents in support of his claim. They were shown as annexures to his application and the details of which have been referred to by us in the earlier part of this order. In fact after the order of the Nagpur Bench passed in Kamlabai Sadashivirao Sinkar v. State of Maharashtra, the Government in its communication dated 23.11.2007 addressed to the Collector of Amravati stated that the claim of the appellant’s husband was not traceable and, therefore, all related documents were once again required to be collected and submitted to the Government, including recommendations of the Gaurav Samiti as well as the Collector’s comments. Apparently, pursuant ot the said communication, the Collector in his letter dated 29.10.2009 informed the appellant that the case
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WWW.LIVELAW.IN 40 submitted by her husband for getting pension as underground freedom fighter was submitted to the Government along with office letter bearing no. KL/SS/PP/KV/3216 dated 20.12.1996 and the recommendations of the Gaurav Samiti. 9. In the said circumstances, we only state that the appellant’s husband made a genuine effort to collect all those credentials in his support as required under the Resolution of the State Government dated 04.7.1995, and forwarded them to the State Government along with his application dated 05.8.1995. When the Collector, Amravati forwarded his letter dated 20.12.1996 and reiterated his recommendation in his subsequent communications dated 14.10.2007 and 30.11.2007 there was no reason for the State Government to simply reject the application without assigning any reason. 10. A perusal of the documents enclosed by the appellant’s husband along with his application disclose that the appellant’s husband made out a case for grant of freedom fighters’ pension under the category “underground freedom fighter”. Applying the broad principles laid down in the decision of this Court in Gurdial Singh, it will have to be held that there was nothing more for the State to examine to honor the claim of the appellant’s husband for grant of freedom fighters’ pension. The claim of the appellant’s husband cannot be held to be a fraudulent one or without any supporting material.
77.
In the present case, it too reveals that all
essential ingredients for filing the application, the documentation
and
even
according
to
the
communication of respondents as made on 06/12/1997 and reply given by late husband on 01/05/1999 recognizing late husband of petitioner as freedom fighter, he was entitled for the freedom fighter pension under the Rules of 1975.
78.
In case of Gurdial Singh vs. Union of India &
others reported in (2001) 8 SCC 8, in its para nos.6, 7 & 8 which is quoted here under:6. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle
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WWW.LIVELAW.IN 41 without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. 7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent Authorities have adopted a hypertechnical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and
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WWW.LIVELAW.IN 42 close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari's case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No.3790 of 1994 entitled Mohan Singh vs. Union of India decided on 1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995.
79.
In case of Mukund Lal Bhandari & others vs.
Union of India & others reported in 1993 Supp (3) SCC 2, in its para 9 which is quoted here under: “That leaves us with the question as to whether, notwithstanding, the date on which the application itself is made. the claimant should be entitled to the benefit of the pension with effect from an earlier date. In support of the contention that the benefit should be made available with retrospective effect, reliance is placed on the two cases cited earlier where the benefit is given with effect from 1st August, 1980. We have given our anxious consideration to the question and are of the view that for reasons more than one, the benefit should flow only from the date of the application and not form any date earlier. As pointed out before in the two earlier cases the question with regard to the retrospectivity of the benefit was neither nor answered. We have, therefore, to decide it for the first time. There is no doubt that if the object of the Scheme is to benefit the freedom fighters, theoretically they should be entitled the freedom fighters, theoretically, they should be entitled to the benefit from the date the Scheme came into operation. But the history, the true spirit and the object of the Scheme would itself probably not support such straitjacket formula. As has been pointed out above, the Scheme was introduced in 1972 on the occasion of the Silver Jubilee of our National Independence. It is not suggested that some of the freedom fighters were not in need of financial assistance prior to that date. When the Scheme came into force for the first time, it was also restricted to those who were in need of such assistance and hence only such freedom fighters were given its benefit, whose annual income did not exceed Rs 5,000. It is only later, i.e., from 1st August. 1980, that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary also to mitigate the sufferings
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WWW.LIVELAW.IN 43 of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of' patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now.”
80.
Owing to what has been discussed in the
above paragraphs and for the following reasons :1)
The late husband of the petitioner
was rusticated from 24th September, 1942 to 30th June, 1943 from the School, on account of his arrest on 2nd September, 1942, after being sentenced under Section 188 IPC from DAV Inter College, Dehradun, when he was student of Class 12th, which fortifies that the late husband of the petitioner had participate in the freedom movement and was arrested. 2)
The Jailor, District Jail Dehradun
vide certificate issued on 07.03.2013 had certified that the late husband of the petitioner was convicted and sentenced under Section 188 I.P.C. and was kept in confinement from 2nd September, 1942 and was only released
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WWW.LIVELAW.IN 44
after
serving
the
sentence
only
on
18th
October, 1942, i.e. about one month and 16 days. 3)
The
certificate
issued
by
the
President, District Board on 30/07/1995 has certified that the late husband of the petitioner had
actively
participated
in
the
freedom
movement with the Indian National Congress. 4)
A certificate which has been issued
by Mr. Buddhi Prakash Karashi, a co-freedom fighter on 25th March, 1986, has certified that he
was
put
in
custody
by
the
British
Government. 5)
The District Magistrate, Dehradun in
a certificate issued on 15th August, 1972, on the occasion of 25 years of independence has honoured the late husband of the petitioner as a person who has contributed in the freedom movement of the country. 6)
The
District
Magistrate
and
Controller of Civil Security, the Chief Warden had certified and appreciated the services rendered by late husband of the petitioner who has discharged his social responsibility as Sector Warden in 1971/72 during Indo-Pak War
and
a
certificate
was
issued
on
20/12/1972 to the said effect. 7)
The Prime Minister Office of the then
Prime Minister of the Country has referred the matter to be decided by the State as raised by late husband of the petitioner on 5th March, 1981 which remained pending for one reason or another.
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WWW.LIVELAW.IN 45
8)
S.D.M. (Sadar), Dehradun, on 3rd
December, 2012, has written to the Incharge District Magistrate, Dehradun alongwith his report wherein, he after considering all the documentation and certifying the fact that he was sent to jail in 1942 and he was honoured by the Collector in 1972, had submitted a report on 9th November, 2012 to be considered for the grant of Freedom Fighter Pension. 9)
Even the District Magistrate on 8th
June, 1982 had certified the fact that the late husband of the petitioner has been sentenced and was in prison for the aforesaid period. 10) The District Magistrate, Dehradun, vide its correspondence No. 5503 dated 4th April, 2013 had called a report from ADM, Administration
and
Jailor,
District
Jail,
Dehradun and S.D.M: a) The Jailor, District Jail on 8th April, 2013 had submitted a report to the District
Magistrate,
wherein,
he
has
reiterated the fact that late husband of the
petitioner
was
sentenced
under
Section 188 IPC with fine of Rs.40/- and was kept in confinement to undergo the sentence of six week from 2nd September, 1942 till 7th October, 1942. b) The S.D.M. on 24th July, 2013, has submitted a report to the District Magistrate, wherein, after considering the documents,
has
reported
that
late
husband of the petitioner did fulfill all the
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WWW.LIVELAW.IN 46
conditions for the grant of Freedom Fighter Pension. 11) On representation made by the late husband of the petitioner on 8th April, 2013 to the Chief Minister, the then Chief Minister has himself has recommended the payment of Rs.50,000/- after being satisfied that the late husband of the petitioner has contributed in the
freedom
movement
and
also
after
considering that he was put into jail for a period of 1 month 16 days. 12) The amount of Rs.25,000/- as a recognition of the services rendered a freedom fighter was sanctioned by the Office of the Chief Minister, which on the approval of the Governor, was sought to be paid but since the amount sanctioned was unilaterally reduced by the State and its agency, the late husband of the petitioner declined to accept the said amount. 13)
Major period of confinement as per
Rule 2 Ka, because no sane person at the time when he was being sentenced by the British Government for his or her involvement in freedom movement could have perceived the cut off period of confinement to make himself eligible for grant of freedom fighter pension, hence, there is no logic to deny pension based on
period
of
sentence,
participation
in
movement if proved would be sufficient. 14) The late husband of the petitioner was ever heard prior to passing the order and hence apparently the order of denial either it is
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WWW.LIVELAW.IN 47
order 13.8.2013 or that of 05.5.2017 were without providing any opportunity of hearing to the late husband of the petitioner, or to the petitioner
herself,
hence,
it
violates
the
principles of natural justice too and hence it cannot be sustained in the eyes of law. 15) As a matter of fact, the impugned order dated 22.11.2017 was passed against a dead person.
81.
Looking to the manner, in which the State and
its agency
have meted out the treatment to an aged
freedom fighter of 100 years of age for last over 36 years by asking him to run from pillar to post ever since 5th March, 1981, till he met his death on 20/11/2017, when he raised his claim for the first time under the Rules, 1975 before the Prime Minister of the Country and till the date of its rejection by the impugned orders, it was absolute anarchism and dehors to the Rules without application of mind that his claim has been rejected and he has suffered at the hands of the authorities of the State and that too in an absolute disregard
with
regard
to
the
evidence
and
the
documents which has been placed on record by the late husband of the petitioner which showed the late husband of the petitioner did fulfill the conditions stipulated under the Rule of 1975 and thus there was no reason as to why the same was not accorded to him, on account of arbitrariness, mala fides.
82.
This
Court,
therefore,
issues
a
writ
of
certiorari, allows the writ petition for the reasons given above
and
quashes
the
impugned
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orders
dated
WWW.LIVELAW.IN 48
05/05/2017 and 28/11/2017, annexed as Annexure Nos. 34 and 36 of the writ petition, with a cost of Rs.3,50,000/- (calculated approximately @ of Rs. 1 lakh per decade) to be paid to the widow / petitioner for the harassment for which her late husband, a freedom fighter and she had suffered at the hands of the State Agency.
83.
A writ of mandamus is issued to respondents
to forthwith start paying freedom fighter pension with all benefits as admissible to the dependents, without any further delay, to the petitioner who is 91 years old widow of late Mr. Satyeshwar Sharma, and further to pay the entire arrears of freedom fighter pension which was otherwise payable to the late husband and that to the petitioner, his widow w.e.f. 05/03/1981 (the date when he applied first) within one month from today.
84.
Subject to the above directions, by way of writ
of mandamus and certiorari, writ petition stands allowed. (Sharad Kumar Sharma, J.) Vacation Judge 15.02.2018 A.kaur
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