Union Of India vs Krishna Modi

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 Digitally signed by Rajni Mukhi eight months confinement in the freedom movement in 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 2

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, 3

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 4

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. 5

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 6

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 7

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 8

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 9

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 10

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.

11 12

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)