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2018 DIGILAW 733 (KER)

Sebastian v. District Collector, Alappuzha

2018-09-17

ALEXANDER THOMAS

body2018
JUDGMENT : 1. The petitioner claims that he was part of the Police force, which was deputed to Hyderabad for ensuring the termination of the rule of Nizam so as to get that princely State acceded to the Union of India, is aggrieved by the inaction on the part of the respondents in granting him Swatantrata Sainik Samman Pension Scheme, 1980. The prayers in this Writ Petition (Civil) are as follows: “(i) issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records relating to Exhibit P-4 and quash the same. (ii) declare that the petitioner is entitled to Swatantrata Sainik Samman Pension from the Union of India for his participation in the Liberation Movement of Hyderabad State in 1948. (iii) issue a writ of mandamus, any other appropriate writ, order or direction directing the 3rd respondent to recommend the case of the petitioner for grant of Swatantrata Sainik Samman Pension to the Union of India. (iv) issue a writ of mandamus, any other appropriate writ, order or direction directing the 5th respondent to grant Swatantrata Sainik Samman Pension to the petitioner from the date of making of application. (v) issue such other writ, order or direction which this Honourable Court deems fit in the nature and circumstances of the case. 2. Heard Sri. S. Sanal Kumar, learned counsel appearing for petitioner, Sri. Jestin Mathew, learned Government Pleader appearing for R-1 to R-3 and Sri. N. Nagaresh, learned Assistant Solicitor General appearing for R-5 (UOI). In the nature of the order that is proposed to be passed in this petition, notice to R-4 State of Andhra Pradesh, will stand dispensed with. 3. According to the petitioner, he was part of the Police force concerned (Armed Police I Battalion (Now TSP 2 Battalion), which was deputed by the Governmental authorities to erstwhile State of Hyderabad for ensuring the termination of the rule of Nizam for getting the princely State acceded to the Union of India and that therefore, he is entitled to be treated as freedom fighter and thus entitled to the grant of freedom fighter’s pension under the said Scheme, 1980. Ext.P-1 is the certificate dated 25.3.2003 issued by office of the Commandant TSP 2 Battalion, Avadi, Chennai, wherein it is stated that the petitioner is an ex-Police constable No. 1348, who had served in that Battalion (formerly SAP I Battalion, Now TSP II Battalion) from 26.4.1948 F.N. to 8.6.1948 A.M. and was transferred to S.A.P. VIB Vizakhapattanam, on 6.4.1948 FN. Further it is stated that as he had served Madras State he had submitted his application through the State of Tamil Nadu for grant of freedom fighter’s pension under the Central scheme and by Ext.P-2 letter dated 7.10.2007, the competent authority of the Government of State of Tamil Nadu had instructed him to approach the Union Government through the Government of the State of Kerala. That thereupon the petitioner had approached the competent authority of the 3rd respondent State Government for the grant of the said benefit. In Ext.P-4 letter dated 21.5.2009 issued by the 3rd respondent State Government, it has been reported that though the 1st respondent District Collector, Alappuzha, has reported that the petitioner had participated in the Police force, which was deputed to the Hyderabad State for getting it acceded to the Union of India, the petitioner is not eligible as per the prescribed criteria in the Central scheme for the grant of the said political freedom fighter’s pension. The petitioner had again filed Ext.P-5 representation dated 27.5.2009 addressed to the 3rd respondent State Government for reconsidering their stand in order to enable the petitioner to avail the abovesaid benefit under the Central scheme. It is in the light of these factual aspects, the petitioner has filed the instant Writ Petition (Civil) on 3.9.2010 with the aforementioned prayers. 4. The 1st respondent Union Government has filed a counter affidavit dated 23.11.2010. It is in the light of these factual aspects, the petitioner has filed the instant Writ Petition (Civil) on 3.9.2010 with the aforementioned prayers. 4. The 1st respondent Union Government has filed a counter affidavit dated 23.11.2010. In para 5 of the said counter affidavit, it is clearly stated that the only claim made by the petitioner is that he was a Police Constable, who was deputed to take part in the Police action in Hyderabad and that by his own assertion he was a Government servant on duty and that it was only as part of his duty as a Government servant, that he was deputed to the Police action and, that being a Government servant he is only entitled for the service benefits as per the rules and that merely because he had participated in the Police action as a member Police constabulary, will not entitle him for the grant of the Central Swatantrata Sainik Samman Pension under the Central scheme. Moreover, that the petitioner has no claim that he underwent any of the sufferings as defined in the Central Scheme. Further it is asserted in para 7 of the counter affidavit that only those persons, who underwent any of the prescribed sufferings as per the Central scheme are eligible for consideration for the abovesaid Swatantrata Sainik Samman Pension and that too, on production of the prescribed evidentiary materials and that the scheme has no provision for grant of pension to the soldiers or Police personnel, who had taken part in their lawful duty in any military action or Police action. 5. The learned Assistant Solicitor General has made available a copy of the said Central scheme. Relevant clause, which deals the eligibility as 6 sub clauses, which read as follows: Section 4: Who is Eligible? For the purpose of grant of samman pension under the scheme, a freedom fighter is:- (a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex.-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1-8-1980. (b) A person who remained underground for more than six months provided he was:- 1. a proclaimed offender. 2. The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1-8-1980. (b) A person who remained underground for more than six months provided he was:- 1. a proclaimed offender. 2. one on whom an award for arrest/head was announced. 3. one for whose detention order was issued but not served. (c) A person interned in his home or more. (d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle. (e) A person who became permanently incapacitated during firing or lathi charge. (f) A person who lost his job (Central or State Government) and thus means of livelihood for participation in national movement. A Martyr is a person who died or who has killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British.” 6. In the instant case, the petitioner has no case that he has suffered any of the abovesaid sufferings as understood in the scheme, by way of jail sufferings, remaining underground, internment or externment, confiscation, incapacitation due to firing or lathi charge, loss of job, etc. The only claim of the petitioner is that he was part of the Police force deputed by the provincial Government of Madras to participate in the action in Hyderabad State. The petitioner has so participated only as part of his duty in the Police service, for which he is entitled for his service benefits. But that cannot grant him the status of a freedom fighter under the Central SSS Pension scheme, as admittedly he has not suffered any of the sufferings of a person, who has voluntarily participated in the freedom movement as contemplated in that scheme. Hence such a person is not eligible and entitled for the benefits of freedom fighter’s pension under the Central scheme. 7. Therefore, the stand of the respondents that the petitioner is not eligible and entitled for grant of Swatantrata Sainik Samman Pension under the Central scheme, is tenable and correct. In the light of these aspects, it is only to be held that the above Writ Petition is devoid of merit and the same will stand accordingly dismissed.