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2021 DIGILAW 514 (HP)

Union of India v. Brahmi Devi

2021-08-05

JYOTSNA REWAL DUA, RAVI V.MALIMATH

body2021
JUDGMENT : Ravi V. Malimath, J. 1. Aggrieved by the order dated 29.09.2016, passed by the learned Single Judge in CWP No. 4418 of 2015, titled Smt. Brahmi Devi versus Union of India and others, directing the respondents to grant pension to the petitioner w.e.f. 04.04.1974, the respondents-Union of India have filed this appeal. 2. The writ petitioner is the widow of the deceased Sh. Dhani Ram. He served in the Dogra Regiment as a Sepoy till 1946. During his service, he participated in World War-II by joining the Indian Army from 1939 to 1945. He was awarded the Pacific Star, the Defence Medal and the War Medal. He alongwith similarly placed persons were declared as freedom fighters of the Nation. 3. In 1973, the State of Himachal Pradesh issued a letter to award Tamrapatras to the freedom fighters in the Districts of Bilaspur, Mandi, Hamirpur and Kullu. The petitioner's husband Sh. Dhani Ram's name was at Serial No. 37 alongwith one another freedom fighter Sh. Lashkari Ram (Lance Naik), who appeared at Serial No. 12. On 15.08.1973, Tamrapatra was awarded to Sh. Dhani Ram. That he was a freedom fighter, was acknowledged by the Deputy Commissioner Bilaspur and he was also issued an Identity Card, which is part and parcel of the writ papers. The request of Sh. Dhani Ram for grant of pension was not considered by the State. He went on making representations. Unfortunately, he died on 02.05.2010. Thereafter, the petitioner, his widow, has been pursuing his claim. Since the claim was not acceded to, by the respondents, the instant writ petition was filed. It was contended therein, that the petitioner's husband being a freedom fighter is entitled for grant of pension. That he alongwith Sh. Lashkari Ram being a freedom fighter is entitled to the same relief as has been granted to Sh. Lashkari Ram. The said Sh. Lashkari Ram (Lance Naik) was awarded pension w.e.f. 04.04.1974, whereas the same was denied to the husband of the writ petitioner. 4. Respondent No. 4-Deputy Commissioner, Bilaspur before the learned Single Judge disputed the claim. He has stated that Sh. Dhani Ram never approached the said respondent for grant of freedom fighter benefits. That Identity Card was issued to him on the basis of the "Citizen" by the State Government. That he received an e-mail in the year 2014 seeking benefits. However, it is admitted that Sh. He has stated that Sh. Dhani Ram never approached the said respondent for grant of freedom fighter benefits. That Identity Card was issued to him on the basis of the "Citizen" by the State Government. That he received an e-mail in the year 2014 seeking benefits. However, it is admitted that Sh. Lashkari Ram was declared as freedom fighter and pension was being granted to him. 5. Respondent No. 3, the Chief Secretary to the State of Himachal Pradesh filed a separate reply. He admitted that Sh. Dhani Ram was serving at Dogra Regiment of the British Army for the relevant period of time. However, it is stated that no application was made for grant of any benefits. 6. The Union of India submitted before the learned Single Judge that no pension under "Swatantrata Sainik Samman Pension Scheme" has been granted to petitioner's husband during his life time. As per the revised guidelines issued on 6th August, 2014, the claim of the petitioner is unsustainable and cannot be granted. 7. The learned Single Judge who considered the contentions, concluded that proper relief should be granted. The Identity Card issued to Sh. Dhani Ram as a freedom fighter was considered. The admission that the Tamrapatra was issued to him was considered. Since the person who fought alongwith Sh. Dhani Ram was granted pension w.e.f. 04.04.1974, the learned Single Judge directed that the petitioner should also be granted pension w.e.f. 04.04.1974 among other directions. Questioning the same, the instant appeal has been filed. 8. Mr. Balram Sharma, learned Assistant Solicitor General of India, appearing for the appellants submits that the order of the learned Single Judge is erroneous. He contends that the grant of pension can only be with effect from the date of the application. He. relies on paras 5 & 6 of the judgment of the Hon'ble Supreme Court in the case of Mukund Lal Bhandari and others v. Union of India and others, reported in (1993) Supp 3 SCC 2. The same is disputed by learned counsel appearing for the writ petitioner. He submits that the learned Single Judge has rightly passed the order and no interference is called for. That the grant of pension is the right of the deceased. That he was a freedom fighter, has been acknowledged and, therefore, denial of pension to him is improper. 9. Mr. He submits that the learned Single Judge has rightly passed the order and no interference is called for. That the grant of pension is the right of the deceased. That he was a freedom fighter, has been acknowledged and, therefore, denial of pension to him is improper. 9. Mr. Vikas Rathore, learned Additional Advocate General appearing for the respondents/State submits that irrespective of the statement of objections filed before the learned Single Judge, they have not challenged the order passed by the learned Single Judge. That he has instructions to submit that they would support the order of the learned Single Judge. He further submits that the petitioner would be entitled to receive pension w.e.f. 04.04.1974 as held by the learned Single Judge. That the respondents/State has no objection, whatsoever in complying with the order passed by the learned Single Judge. 10. Heard learned counsels. 11. The factum of grant of the Tamrapatra to the husband of the writ petitioner is undisputed. It was granted to him on 15.08.1973. He has been recognized as a freedom fighter. He was awarded the Pacific Star, the Defence Medal and the War Medal. He alongwith similarly placed persons were declared as freedom fighters of the Nation. These facts are not disputed even by the appellants. However what is being contended by the appellants is the effective date from which the pension is to be granted. He submits that in terms of the judgment in Mukund Lal Bhandari's case, pension should be granted with effect from the date it is made. Apparently, the application has been made only in the year 2015, therefore, the learned Single Judge committed an error in granting pension w.e.f. 04.04.1974. 12. We have considered the said judgment. The Hon'ble Supreme Court therein, while considering a similar situation, held in para 4 as follows: "4. xxxxxxxxxx We are, therefore, of the view that whatever the date on which the claimants make the applications, the benefit should be made available to them. Xxxxxxx" 13. The Hon'ble Supreme Court further held in para 5 as follows: "5. xxxxxxxxxxxx Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. xxxxxxx" 14. Xxxxxxx" 13. The Hon'ble Supreme Court further held in para 5 as follows: "5. xxxxxxxxxxxx Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. xxxxxxx" 14. We are of the considered view that reading of the judgment of the Hon'ble Supreme Court is to the extent that the benefit cannot be granted retrospectively. What is meant retrospectively is not that it is retrospective to the date of the application but retrospective to the date of the Scheme. The Hon'ble Supreme Court therein intended that the moment the Scheme come into existence, all the freedom fighters are entitled for the benefit of the said scheme. Therefore, no benefit could be granted to the freedom fighters prior to the commencement of the Scheme. Therefore, when the Hon'ble Supreme Court holds that the benefit cannot be granted retrospectively, it only means that no benefit can be granted retrospective to the Scheme. The contentions of the appellants that the appellants are entitled to the pension from the date of the application may run contrary to the observations of the Hon'ble Supreme Court. The Hon'ble Supreme Court held in para 4 as follows: "4. xxxxx What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. The Scheme has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. Xxxxxxxx" 15. It was again held in para 5 as follows: "5. Xxxxxxxx" 15. It was again held in para 5 as follows: "5. xxxxxx The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit xxxxxx" 16. Furthermore, the date prescribed for granting pension is the date on which Sh. Lashkari Ram was granted pension. There is sufficient material on record which is not disputed by the appellants that Lashkari Ram was along with the writ petitioner in the freedom struggle. That both their names figured in the list of Tamrapatra. Therefore, if one person is granted the benefit, the other must be granted the same benefit. Therefore, to reject the plea of the petitioner is unjustified especially when Sh. Lashkari Ram was granted benefit w.e.f. 04.04.1974. Therefore, the learned Single Judge was justified in granting pension to the writ petitioner w.e.f. 04.04.1974. Furthermore, when the facts of the case are not in dispute and when it is admitted that the writ petitioner is a freedom fighter, necessarily he will be entitled to the said benefit. It is not the case where the status " of the writ petitioner is disputed. It is admitted. Having done so, the State cannot deny the benefit to him. 17. In view of the peculiar facts and circumstances the respondents are directed to calculate all the arrears, including the interest, as awarded by the learned Single Judge and to pay the same to the writ petitioner within a period of one week from today. Call on 12th August, 2021 to report compliance.