MAHENDER SINGHversusUNION OF INDIA

                        [2010] 11 S.C.R. 1098


A                       MAHENDER SINGH
                                 v.
                          UNION OF INDIA
                  (Civil Appeal No. 5215 of 2009)
                      SEPTEMBER 27, 2010
B
            [P. SATHASIVAM AND R.M. LODHA JJ.]

       Swatantrata Sainik Samman Pension Scheme, 1980 -
  Para 9 - Claim of pension under the Scheme -
C Recommended by State Screening Committee - Denied by
  Central Government - Propriety of - Held: The claimant failed
  to establish his claim for the pension in terms of the Scheme
  - Recommendation of the pension by the State Government
  is not final or conclusive - It is for the Central Government to
D make further inquiry in the matter and to take a final decision
  - Freedom Fighters - Pension.

       The appellant filed an application for pension under
  Swatantrata Sainik Samman Pension Scheme, 1980. The
E State Screening Committee recommended the case of the
  appellant for payment of pension. The Central
  Government in the absence of any authenticated records,
  particularly, the details about "underground suffering" for
  a minimum period of six months and finding that the
  Personal Knowledge Certificate issued by a veteran
F freedom fighter, was not sufficient, rejected the claim of
  the appellant.

       Against the order rejecting the pension, the appellant
  filed a writ petition which was allowed by the Single
G Judge of the High Court. Challenging the judgment of the
  Single Judge, the State filed an LP.A., which was allowed
  by the Division Bench of the High Court. Therefore, the
  instant appeal was filed.

H                               1098
       MAHENDER SINGH v. UNION OF INDIA               1099

    Dismissing the appeal, the Court                          A
     HELD: 1.1 The appellant has failed to establish his
claim for freedom fighter pension in terms of the
Swatantrata Sainik Samman Pension Scheme, 1980. The
appellant laid his claim only on the ground that he had
                                                              B
remained underground for more than four years. There
are two modes of providing the evidence for the same.
The first one is by producing documentary evidence and
the second where the official records are not forthcoming
due to their non-availability, the claim is to be proved by   C
certificates from the veteran freedom fighters who have
themselves undergone imprisonment for five years or
more. In the case of the appellant, he asserted that the
official records are not traceable due to non-availability
and submitted a certificate from a veteran freedom fighter.
[Paras 5 and 10] [1104-E-F; 1106-C]                           D

     1.2 The appellant, in his application under the
Scheme, had merely indicated that he remained
underground from the year 1942 to 1946. He did not
indicate the details of the case in which he had gone         E
underground. Though the appellant has placed the
record of proceedings which show that the relevant
records were not available with them, the fact remains
that the said Non-availability of Records Certificate
(NARC) did not indicate the date of disposal of the case      F
as well as the relevant provisions of the Penal Code. h1
such circumstances, it is not clear whether the said case,
if any, was related to freedom struggle and what was the
duration of the claimed suffering of the appellant. Though
the appellant was given an opportunity to furnish the         G
name of the co-accused in the same case, who are
presently getting pension on the basis of the case on
which the appellant had based his claim, the appellant
was unable to furnish such details. [Para 7] [1105-C-E]
                                                              H
    1100     SUPREME COURT REPORTS             (2010] 11 S.C.R.


A      1.3 Insofar as the Personal Knowledge Certificate
  (PKC) of the veteran freedom fighter is concerned, it is
  the stand of the Government of India that the same is not
  acceptable as the certifier was in jail for most of the period
  of the claimed suffering of the appellant. In view of the
B same, it could not be possible for the certifier to verify the
  period as well as ·the reasons of the claimed suffering of
  the appellant based on his the personal knowledge of the
  veteran freedom fighter. [Para 8] [1105-F-G]

      2. Though the State Advisory Committee and the
C State Government recommended the case of the
  appellant, such recommendation is not final or conclusive
  and it is for the authority of the Central Government
  granting such pension to make further inquiry in the
  matter in terms of various conditions prescribed in the
D Scheme and to take a final decision. [Para 9] [1105-H]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5215 of 2009.

      From the Judgment & Order dated 30.01.2006 of the
E High Court of Delhi at New Delhi in LPA No. 710 of 2005.

        R.S. Sharma, Ranjan Dwivedi, Feroze Ahmed for the
    Appellant.

F       Madhurima Mridula, Sushma Suri for the Respondent.

        The Judgment of the Court was delivered by

       P. SATHASIVAM, J. 1. This appeal is directed against
  the final judgment and order dated 30.01.2006 of the High
G Court of Delhi at New Delhi in LP.A. No. 710 of 2005whereby
  the High Court allowed the appeal filed by the respondent
  herein and set aside the order passed by the learned single
  Judge.

        2. Brief facts:
H
       MAH ENDER SINGH v. UNION OF INDIA                    1101
              [P. SATHASIVAM, J.]

      (a) According to the appellant, he is a freedom fighter,       A
who sacrificed his studies in the freedom struggle and had
taken active part in the 1942 agitation and was forced to
remain an absconder for more than four years i.e. from
20.08.1942 till September, 1946 as he was made an accused
in G.R. Case No. 985of1942 and in Mokama P.S. Case No.               B
259 (8) of 1942 titled State vs. Mahender Singh & Ors., relating
to the incidents of burning and damaging of a post office,
railway line etc. at Mokama during freedom struggle. In 1972,
Freedom Fighters' Pension Scheme was introduced by the
Government of India for the grant of pension to living freedom       c
fighters and their families. In 1980, the benefit of the Swatantra
Sainik Samman Pension Scheme, 1980 (formerly known as
'the Freedom Fighters' Pension Scheme, 1972') was extended
to all the Freedom fighters as a token of Samman (respect) to
them.                                                                D
      (b) On 07.09.1981, the appellant herein filed an application
for pension under the Scheme which was registered on
20.06.1981. After a detailed enquiry by the Bihar Government,
the matter was placed before the Advisory Board on 12/
13.12.1995 which recommended for release of pension to the           E
appellant w.e.f. 01.08.1980. In the absence of any reply, the
appellant again on 09.04.1997 sent a letter to the Government
for releasing his pension. Thereafter on 19.09.1997, th'e
appellant sent a notice through his advocate which remained
unreplied. On 15.12.1997, the appellant filed a petition being       F
W.P. No. 1248 of 1998 before the High Court of Delhi. Vide
order dated 26. 03.1998, the petition was withdrawn by the
appellant on the assurance of the learned counsel for the
respondents therein that as and when they got the clarifications
sought for in the representation of the appellant, the               G
representation shall be disposed of. The High Court further
directed the Government to take a decision on the
representation within three months of the receipt of the
clarifications. Not getting any reply from the Government, on
17 .07.1998, the appellant sent a reminder to the respondent.        H
    1102      SUPREME COURT REPORTS              [2010] 11 S.C.R.


A On 10.12.1998, the appellant filed a Contempt Petition bearing
  C.C.P. No. 489 of 1998 before the High Court in which a
  show cause notice was issued to the Government for non-
  complying with its order. However, on 17.12.1998, the appellant
  got a registered letter from the Government refusing to grant
B him the freedom fighter pension. On 17.04.2001, the High
  Court dismissed the contempt petition and observed that if
  the appellant herein is aggrieved of the order of rejection of
  his grant of pension by the Government, he may pursue
  appropriate remedy provided in law.
c      (c) Against the rejection of the freedom fighter pension,
  on 28.11.2001, the appellant filed W.P.(C) No. 7439 of 2001
  before the High Court and the same was allowed on
  24.11.2003 by the learned single Judge with costs quantified
  at Rs.10,000/- and also directed the Government to grant
D pension to the appellant under the Scheme w.e.f. 01.08.1980.
  On not being released the pension by the Government, the
  appellant filed a contempt petition on 08.09.2004. Challenging
  the judgment of the learned single Judge dated 24.11.2003 in
  W.P. (C) No. 7439 of 2001, the Governmentfiled LP.A. No.
E 710 of 2004 before the Division Bench of the High Court.
  Vide order dated 30.01.2006, the Division Bench allowed the
  LP.A. and set aside the order of the learned single Judge.
  Aggrieved by the said order, the appellant has preferred this
  appeal by way of special leave petition before this Court.
F
       3. Heard learned counsel for the appellant as well as the
  respondent.

       4. The only point for consideration in this appeal is whether
  the appellant has made out a case for grant of freedom fighters
G pension in terms of Swatantra Sainik Samman Pension
  Scheme, 1980 (hereinafter called "the Scheme"). According
  to the appellant, he remained underground for more than six
  months as a proclaimed offender. The Scheme provides for
  the manner of application, availability of application forms, the
H
       MAHENDER SINGH v. UNION OF INDIA                      1103
             [P. SATHASIVAM, J.]
time within which the applications are to be made, how claims         A
are to be proved etc. In this case, the appellant made the
application on 20.06.1981 which within the time prescribed.

     5. Now, let us consider the manner in which the claim is
to be proved which is provided in Para 9 of the Scheme which
                                                                      B
reads thus:

    "9. HOW TO PROVE THE CLAIMS (EVIDENCE
    REQUIRED)

    The applicant should furnish the documents indicated              c
    below whichever is applicable.

    (a) IMPRINSONMENT/DETENTION ETC.

    Certificate from the concerned jail authorities District
    Magistrate or the State Government in case of non-                D
    availability of such certificates co-prisoner certificate from
    a sitting MP or MLA or from an ex-MP or an ex-MLA
    specifying the jail period (annexure I in the application form)

    (b) REMAINED UNDERGROUND:                                         E
    (i) Documentary evidence by way of court's/government
    orders proclaiming the applicant as an offender,
    announcing an award on his head, or for his arrest or
    ordering his detention
                                                                      F
    (ii) Certificates from veteran freedom fighters which had
    themselves undergone imprisonment for five years or more
    if the official records are not forthcoming due to their non-
    availability.
                                                                      G
    (c) INTERNMENT OR EXTERNMENT

    (i) Order of internment or externment or any other
    corroboratory documentary evidence.

    (ii) Certificates from prominent freedom fighters who had         H
    1104        SUPREME COURT REPORTS              (2010) 11 S.C.R.


A       themselves undergone imprisonment for five years or more
        if the official records are not available. (Annexure II in the
        application)

        Note:
B       The Certifier veteran freedom fighters in respect of
        underground suffering, internmenUexternment and the
        applicant should belong to the same administrative unit
        before the reorganization of States and their area of
        operation must be the same.
c
        (d) LOSS OF PROPERTY JOB ETC.

        Orders of confiscation and sale of property orders of
        dismissal or removal from service."

D As stated earlier, the appellant laid his claim only on the ground
  that he had remained underground for more than four years and
  from the aforesaid provision, it can be seen that there are two
  modes of providing the evidence for the same. The first one is
  by producing documentary evidence and the second where the
E official records are not forthcoming due to their non-availability,
  the claim is to be proved by certificates from the veteran
  freedom fighters who have themselves undergone
  imprisonment for five years or more. In the case of the appellant,
  he asserted that the official records are not traceable due to
F non-availability and submitted a certificate from one Shri
  Jagdish Singh who was a veteran freedom fighter. Learned
  counsel for the appellant also brought to our notice the
  recommendation dated 09.04.1997 of the Government of Bihar
  recommending the case of the appellant for payment of
G freedom fighters pension under the Scheme w.e.f. 01.08.1980.

        6. It is true that based on the particulars furnished by the
    appellant, the State Screening Committee, Bihar
    recommended the case of the appellant for payment of pension
    under the Central Scheme. However, the Central Government
H
        MAHENDER SINGH v. UNION OF INDIA                    1105
              [P. SATHASIVAM, J.]

in the absence of any authenticated records particularly the         A
details about "underground suffering" for a minimum period of
six months and finding that the certificate issued by Shri Jagdish
Singh is not sufficient rejected the claim of the appellant.

     7. In the light of the controversy particularly, the claim of   8
the appellant and the stand taken by the Government of India,
we have carefully gone through the eligibility provisions as well
as relevant criteria to prove the claim under the Scheme. In his
application dated 07.03.1981, the appellant had merely
indicated that he remained underground from 1942 to 1946.            C
As rightly pointed out by the respondent, he did not indicate the
details of the case in which he had gone underground. Though
the appellant has placed record of proceedings which show that
the relevant records were not available with them, the fact
remains the said Non-availability of Records Certificate (NARC)
did not indicate the date of disposal of the case as well as the     D
relevant provisions of the Indian Penal Code. In such
circumstances, as rightly pointed out by the respondent, it is
not clear whether the said case, if any, was related to freedom
struggle and what was the duration of the claimed suffering of
the appellant. Though the appellant had given an opportunity         E
to furnish the name of co-accused in the same case, who are
presently getting pension on th' basis of GR NO. 985/1942,
the appellant was unable to furnish such details.

     8. Insofar as the Personal Knowledge Certificate (PKC)          F
of Shri Jagdish Singh, it is the stand of the Government of India
that the same is not acceptable as the certifier was in jail for
most of the period of the claimed suffering of the appellant. In
view of the same, it could not be possible for the certifier to
verify the period as well as the reasons of the claimed suffering    G
of the appellant based on his (Jagdish Singh) personal
knowledge.

   9. Though the State Advisory Committee and the
Government of Bihar recommended the case of the appellant
                                                                     H
    1106      SUPREME COURT REPORTS               [2010) 11 S.C.R.


A for Central Scheme, it is pointed out by the learned counsel for
  the respondent that the same is not binding on the Central
  Government in the absence of required proof for the same. In
  other words, the recommendation of the State Government is
  not final or conclusive and it is for the authority of the Central
B Government granting such pension to make further inquiry in
  the matter in terms of various conditions prescribed in the
  Scheme and to take a final decision.

       10. In the light of the above discussion, we conclude that
C the appellant has failed to establish his claim for freedom
  fighter pension in terms of the Central Scheme, on the other
  hand, we are in agreement with the conclusion arrived at by the
  Division Bench of the High Court. Consequently, the appeal fails
  and the same is dismissed. No order as to costs.

D K.K.T                                        Appeal dismissed.