UNION OF INDIAversusKRISHNA MODI & ANR.

638                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 638              [2022] 1 S.C.R.


A                             UNION OF INDIA
                                       v.
                          KRISHNA MODI & ANR.
                         (Civil Appeal No. 909 of 2022)
B                            FEBRUARY 03, 2022
            [VINEET SARAN AND ANIRUDDHA BOSE, JJ.]
             Freedom Fighters – Pension – Scheme – Eligibility –
      Swatantrata Sainik Samman Pension Scheme, 1980 – Claim for
      pension under – Validity – Held: Claim of respondent no. 1 was, for
C
      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 have remained underground for more than six
D     months – It is not understood as to how 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 respondent no.1 had remained
      underground – Even assuming that the certificate issued by the
E
      school authorities is authentic, simply because 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
      remained underground because of his participation in the freedom
      struggle – Further, there was no recommendation of the State
F     Government but the application of respondent no.1 was merely
      forwarded by the State Government – Mere fact that the State
      Government granted pension under some freedom fighters pension
      scheme of the State Government would not, by itself, entitle
      respondent no.1 to claim under the scheme of the Central
      Government, unless respondent no.1 fulfilled the conditions of the
G
      Central Government Scheme, which in the present case is SSS
      Pension Scheme, 1980 – On facts, the High Court overlooked the
      various requirements under the SSS Pension Scheme, 1980, which
      were to be fulfilled by respondent no.1 for grant of benefits of the
      Scheme, and allowed grant of pension to respondent no.1 merely
H     on basis of sympathy, and because the State Government had granted
                                      638
             UNION OF INDIA v. KRISHNA MODI & ANR.                          639


benefit under a separate scheme of the State Government, and on             A
certain presumption of respondent no.1 having remained
underground for a certain period without there being proper
authentication as required under the Scheme in question – Judgment
of High Court set aside.
        Union of India v. Avtar Singh, (2006) 6 SCC 493 : [2006]            B
        3 Suppl. SCR 666 – referred to.
                        Case Law Reference
[2006] 3 Suppl. SCR 666          referred to              Para 14
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 909 of               C
2022.
     From the Judgment and Order dated 17.02.2020 of the High Court
of Madhya Pradesh at Jabalpur Bench in W.A. No.1971 of 2019.
      Jayant K. Sud, ASG, Merusagar Samantray, Ms. Preeti Rani, Om
Prakash Shukla, Raghav Sharma, Ms. Garima Prasad, A. K. Sharma,             D
B. V. Balaram Das, Advs. for the Appellant.
      Rajeev Kumar Bansal, Ganesh Barowalia, Girish Patel, Advs. for
the Respondents.
        The following Order of the Court was passed :
                                                                            E
                               ORDER
        1. Leave granted.
      2. 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.        F
      3. 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 eight months confinement in the
freedom movement in the year 1942, in the form of being underground         G
for such period. It is the case of the respondent no. 1 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
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640             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A     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.
B            4. 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
C     the Division Bench of the High Court, which was dismissed on
      17.02.2020. Aggrieved by the same, this appeal by way of special leave
      petition has been filed.
              5. The submission of Mr. Jayant K. Sud, learned Additional Solicitor
      General appearing for the appellant, is that the respondent no. 1 was
D     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
E     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
F     certificate issued by the school authorities. On merits, it has been submitted
      that the freedom fighters pension scheme was there 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
G     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.
            6. It is further contended that for being eligible, what was required
      was that a person should have remained underground for more than six
H     months, provided he was a proclaimed offender; or one on whom an
            UNION OF INDIA v. KRISHNA MODI & ANR.                             641


award for arrest/head was announced; or one for whom detention order          A
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
                                                                              B
freedom fighters who had undergone imprisonment for five years or
more. 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   C
was underground during such period.
      7. 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              D
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.
      8. Per contra, Mr. Rajeev Kumar Bansal, learned counsel                 E
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
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.              F
      9. 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                   G
judgments of the High Court do not call for any interference and this
appeal deserves to be dismissed.
      10. We have heard learned counsel for the parties at length and
have perused the record.
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642             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A            11. 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 have remained underground for more than six months, provided
B
      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
C     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
D
      the respondent no. 1 had remained underground.
              12. 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
E     years of age, would not amount to respondent no. 1 having 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.

F            13. 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
G     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.
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             UNION OF INDIA v. KRISHNA MODI & ANR.                              643


       14. We are conscious of the fact that those persons who had              A
participated in the freedom struggle of our 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
                                                                                B
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      C
       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.”
        15. In view of the aforesaid facts, where the Single Judge, as well     D
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 of pension to respondent no. 1 merely on the
basis of sympathy, and because the State Government has granted a               E
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.
                                                                                F
      16. Accordingly, this appeal is allowed and the judgments of the
High Court dated 14.02.2019 and 17.02.2020 are set aside.
       17. No order as to costs.
       18. Before parting with the case, we record our appreciation for
the assistance provided by Mr. Rajeev Kumar Bansal, who has appeared            G
as the counsel appointed by the Supreme Court Legal Services
Committee for the respondent no. 1.

Bibhuti Bhushan Bose                                          Appeal allowed.
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