Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 909 OF 2022
(ARISING OUT OF SLP (C) NO.9624/2020)
UNION OF INDIA APPELLANT(S)
VERSUS
KRISHNA MODI & ANR. RESPONDENT(S)
O R D E R
Leave granted.
The present matter relates to grant of pension
under the Swatantrata Sainik Samman Pension Scheme,
1980 (for short ‘SSS Pension Scheme’) introduced by
the Central Government on 15.08.1981.
The brief facts of this case are that in
response to the SSS Pension Scheme,1980, the
respondent no. 1 submitted an application before the
Central Government on 27.12.1982 claiming freedom
fighter’s pension on the ground that he suffered
Signature Not Verified
eight months confinement in the freedom movement in
Digitally signed by
Rajni Mukhi
Date: 2022.02.09
15:33:52 IST
Reason:
the year 1942, in the form of being underground for
such period. It is the case of the respondent no. 1
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that from the period of 21.11.1942 to 20.08.1943
(during which he did not attend the school), he
remained underground and hence, would be entitled
for pension under the said SSS Pension Scheme. Since
the application of the respondent no. 1 was not
considered, he filed a writ petition before the
Madhya Pradesh High Court, which was disposed of by
giving a direction to the appellant/Union of India
herein to decide the claim of the respondent no. 1.
The matter travelled to the High Court on several
occasions and ultimately, on 03.02.2009, the
application of the respondent was rejected by the
appellant.
Aggrieved by the said order, the respondent no.
1 filed a writ petition before the Single Judge of
the Madhya Pradesh High Court, which was allowed on
14.02.2019 and after setting aside the order dated
03.02.2009 passed by the appellant, the appellant
was directed to grant pension to the respondent no.
1 along with 6% interest per annum. Challenging the
said order the appellant filed an intra court appeal
before the Division Bench of the High Court, which
was dismissed on 17.02.2020. Aggrieved by the same,
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this appeal by way of special leave petition has
been filed.
The submission of Mr. Jayant K. Sud, learned
Additional Solicitor General appearing for the
appellant, is that the respondent no. 1 was born on
05.07.1930 and was only about 12 years of age when
he claims to be underground during the freedom
movement of 1942. It is contended that there is no
specific proof of the respondent no. 1 having
remained underground during the period which is
being claimed by him, except for the fact that the
School certificate obtained after about 40 years
indicates that the respondent no. 1 had attended
school from 13.7.1942 to 20.11.1942 and from
21.08.1943 to 13.09.1947. Learned ASG has submitted
that merely because the respondent no. 1 did not
attend the school during the intervening period
would not, by itself, mean that respondent no. 1
remained underground because of his participation in
the freedom movement. He has, however, also disputed
the issuance of school certificate issued by the
school authorities. On merits, it has been submitted
that the freedom fighters pension scheme was there
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in the year 1972 and the SSS Pension Scheme,1980 was
nothing but amendment of the said scheme to the
extent of raising eligibility to all the freedom
fighters as token of ‘Samman’ to them, by deleting
the provision in the earlier scheme with regard to
ceiling on annual income for being eligible for
getting such pension. It is, thus, contended that
the application filed by the respondent no.1 was
with a delay of twenty years.
It is further contended that for being eligible,
what was required was that a person should have
remained underground for more than six months,
provided he was a proclaimed offender; or one on
whom an award for arrest/head was announced; or one
for whom detention order was issued but not served,
which, according to the learned ASG, was not so in
the case of the respondent no.1. He also submitted
that in the absence of the respondent no. 1 having
furnished the Non-availability of Record Certificate
(NARC), the case of the respondent no. 1 could not
have been considered merely on the basis of
certificate issued by the freedom fighters who had
undergone imprisonment for five years or more.
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Learned counsel has submitted that the freedom
fighters, who had allegedly issued the certificate,
were themselves in custody during the period in
question when the respondent no. 1 claims to have
remained underground, and since the persons issuing
the certificate were themselves in jail, they could
not have certified that the respondent no. 1 was
underground during such period.
The further contention is that the
applicant/respondent no.1 was required to provide
the exact period of underground suffering which,
according to the learned counsel, has not been
provided by the respondent no. 1. It is submitted by
learned ASG that in the absence of any
recommendation by the State Government, which was
mandatorily required, the application of the
respondent no. 1 was rightly rejected, as the State
Government had merely forwarded the application of
the respondent no. 1 without any recommendation.
Per contra, Mr. Rajeev Kumar Bansal, learned
counsel appearing for the respondent no. 1
contended, that the learned Single Judge as well as
the Division Bench of the High Court have given a
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categorical finding of fact that the requirement as
per the SSS Pension Scheme, 1980 is fulfilled by the
respondent no. 1 and, thus, the claim of respondent
no. 1 has rightly been allowed under the said
scheme.
It has been stated that under a similar scheme
of the State Government (though the same is not on
record) the respondent no. 1 has been receiving the
freedom fighter’s pension and, thus, there is no
reason why the same benefits be not accorded to him
under the Central Government SSS Pension Scheme. He,
thus, contended that the judgments of the High Court
do not call for any interference and this appeal
deserves to be dismissed.
We have heard learned counsel for the parties at
length and have perused the record.
There is no denial of the fact that the claim of
the respondent no. 1 was, for the first time, made
on 27.12.1982, whereas the Freedom Fighters Pension
Scheme existed in year 1972, which was only amended
in the year 1980. Hence, it cannot be said that the
respondent filed his claim promptly. Under the said
scheme, a person eligible for the benefit should
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have remained underground for more than six months,
provided he was a proclaimed offender; or one on
whom an award for arrest/head was announced; or one
for whom detention order was issued but not served.
In the present case, there is no order by which the
respondent no. 1 was declared as a proclaimed
offender. Further it was not the claim of the
respondent no. 1 that an award for arrest of the
respondent no. 1 was ever announced, nor is it the
case that any detention order was issued but not
served on the respondent no.1. Hence, it is not
understood as to how the respondent no. 1 could be
categorised as a person who remained underground for
a period of six months or more, merely on the basis
of certificates issued by certain freedom fighters,
who were themselves in jail during the period when
they certified that the respondent no. 1 had
remained underground.
Even assuming that the certificate issued by the
school authorities is authentic, simply because the
respondent no. 1 did not attend the school during a
particular period, when he was merely about 12 years
of age, would not amount to respondent no. 1 having
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remained underground because of his participation in
the freedom struggle. Further, if the law or the
pension scheme in question requires an application
to be accompanied by NARC, then in absence of the
same, the application of the respondent no.1, if not
considered, cannot be faulted.
Further, the scheme requires the State
Government to not merely forward the application but
recommend such application for grant of pension. In
the present case, it is not disputed that there was
no recommendation of the State Government but the
application of the respondent no. 1 was merely
forwarded by the State Government. The mere fact
that the State Government has granted pension under
some freedom fighters pension scheme of the State
Government would not, by itself, entitle the
respondent no. 1 to claim under the scheme of the
Central Government, unless the respondent no. 1
fulfills the conditions of the Central Government
Scheme, which in the present case is SSS Pension
Scheme, 1980.
We are conscious of the fact that those persons
who had participated in the freedom struggle of our
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country, because of which we got independence,
should certainly be honoured and if they are
entitled to any benefits, which includes pension,
they should definitely be provided such benefit.
However, such benefits should be awarded only to
those persons who are entitled for the same under
any Scheme of the Government. This Court in the case
of “Union of India Versus Avtar Singh” (2006) 6 SCC
493, has in paragraph no. 8 of the said judgment
held as under:
“8. …………The genuine freedom fighters
deserve to be treated with reverence,
respect and honour. But at the same time
it cannot be lost sight of that people who
had no role to play in the freedom
struggle should not be permitted to
benefit from the liberal approach required
to be adopted in the case of the freedom
fighters, most of whom in the normal
course are septuagenarians and
octogenarians.”
In view of the aforesaid facts, where the Single
Judge, as well as the Division Bench of the High
Court, have overlooked the various requirements
under the SSS Pension Scheme, 1980, which were to be
fulfilled by the respondent no. 1 for grant of
benefits of the Scheme, and have allowed the grant
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of pension to respondent no. 1 merely on the basis
of sympathy, and because the State Government has
granted a benefit under a separate scheme of the
State Government, and on certain presumption of the
respondent no. 1 having remained underground for a
certain period without there being proper
authentication as required under the Scheme in
question, we are of the opinion that the said
judgments deserve to be quashed.
Accordingly, this appeal is allowed and the
judgments of the High Court dated 14.02.2019 and
17.02.2020 are set aside.
No order as to costs.
Before parting with the case, we record our
appreciation for the assistance provided by Mr.
Rajeev Kumar Bansal, who has appeared as the counsel
appointed by the Supreme Court Legal Services
Committee for the respondent no. 1.
……………………………………,J.
(VINEET SARAN)
……………………………………,J.
(ANIRUDDHA BOSE)
NEW DELHI;
FEBRUARY 03,2022.
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ITEM NO.8 Court 9 (Video Conferencing) SECTION IV-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9624/2020
(Arising out of impugned final judgment and order dated 17-02-2020
in WA No. 1971/2019 passed by the High Court Of M.P Principal Seat
At Jabalpur)
UNION OF INDIA Petitioner(s)
VERSUS
KRISHNA MODI & ANR. Respondent(s)
IA No.9228/2021-EARLY HEARING APPLICATION
Date : 03-02-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE VINEET SARAN
HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Petitioner(s) Mr. Jayant K. Sud, ASG
Mr. Merusagar Samantray, Adv.
Ms. Preeti Rani, Adv.
Mr. Om Prakash Shukla, Adv.
Mr. Raghav Sharma, Adv.
Ms. Garima Prasad, Adv.
Mr. A.K. Sharma, AOR
Mr. B. V. Balaram Das, AOR
For Respondent(s) Mr. Rajeev Kumar Bansal, AOR
Mr. Ganesh Barowalia, Adv.
Mr. Girish Patel, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed reportable order.
Pending application(s), if any, stands disposed of
accordingly.
(ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR)
(COURT MASTER (SH) (BRANCH OFFICER) AR-CUM-PS
(Signed reportable order is placed on the file)