Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. allowed a writ petition which was preferred against the action of the respondent of not extending the benefits to the petitioner which were available to the dependents of freedom fighter under various schemes floated by Government of India and State Government as well under the Act called as “Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993” on the premise that the petitioner would not be entitled to the benefit because she happens to be granddaughter (daughter’s daughter) of the deceased freedom fighter and would not be covered in the definition of family.

Tapan Singh, learned counsel for the petitioner argued that petitioner since being daughter’s daughter was a member of the family of deceased freedom fighter, irrespective of the fact that she was married or not, that ought not deprive the petitioner of availing the benefit under the freedom fighter scheme on the premise that she is married granddaughter of the deceased freedom fighter, It was also argued that such practices were an encouragement to gender discrimination. While further citing Isha Tyagi v. State of U.P., 2014 SCC OnLine All 15982, the counsel highlighted how such law will lead to gender discrimination as grandson (i.e. son’s son) of the freedom fighter was included under the definition of the ‘dependents of the family’ of freedom fighter in that eventuality that granddaughter i.e. daughter’s daughter or son should also be entitled to the benefit under the scheme. It was vehemently averred that such discrimination for the compassionate appointment was violative of Articles 14 and 15 of the Constitution. In Isha Tyagi, it was held that, “benefit of the horizontal reservation for descendants of freedom fighters shall extend both to descendants of a freedom fighter tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter. Neither a married daughter nor her children would be disqualified from receiving the benefit of the reservation which is otherwise available to them in their capacity as descendants of a freedom fighter. Whether, in a given case including the present, an applicant is truly a descendant of a freedom fighter is undoubtedly for the authority to verify.”

High Court, observed that judgment in Isha Tyagi, is concurred by a Full Bench of Uttaranchal High Court as well and there was no contradictory remark on it. Thus, the law had been laid down by the judges who bar such discrimination. It was stated by the Court, that ratio of earlier judgments would be applicable in relation to an extension of the benefit of the daughter, granddaughter or grandson of the freedom fighter as they cannot be discriminated on the basis of gender discrimination.

Accordingly, the writ petition was disposed of with a direction that there cannot be any gender discrimination in relation to claim raised by the petitioner being the daughter’s daughter of the freedom fighter. [Ruchika Tomar v. State of Uttarakhand, 2019 SCC OnLine Utt 483, decided on 01-05-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Alexander Thomas, J. while hearing civil writ petition filed for grant of freedom fighter’s dependant pension ruled that the same is available from the date of sanctioning order and not from the date of submission of an application for grant thereof.

Petitioner’s husband was the recipient of freedom fighter’s pension under Kerala Freedom Fighters’ Pension Rules, 1971. His application for grant of freedom fighters’ pension under the Central Swatantrata Sainik Samman Pension Scheme, 1980 (Central Scheme) was rejected. After his demise, the petitioner filed an application under the Central Scheme for grant of freedom fighter’s dependent pension. State government recommended grant thereof but Union government rejected her claim. In view of court’s order requiring Union government to reconsider petitioner’s claim, she was granted dependant pension from the date of the court’s judgment. The said order was challenged vide instant petition.

Contention on behalf of the respondent was that since the petitioner had made available only secondary evidentiary materials to prove her claim, she was entitled to grant of dependent pension only from the date of court’s judgment dated and not from the date of her application.

Relying on the dictum of Apex Court in Union of India v. Kaushalaya Devi, 2007 (9) SCC 525, it was held that since the petitioner had produced only secondary evidentiary materials in support of her claim, therefore, she was entitled to get dependant pension and its arrears only from the date of sanctioning order and not from the date of submission of her application.

However, the Court noted that secondary evidentiary materials submitted by petitioner had been duly acknowledged by the State government and despite the State government’s positive recommendation, the Central government had rejected the petitioner’s claim. Therefore, it was held that the petitioner would be entitled to pensionary benefits and its arrears from the date of State government’s recommendation and not from the date of court’s judgment requiring reconsideration thereof by the Central government. [Aleyamma Kunjappan v. Union of India,2018 SCC OnLine Ker 4909, decided on 22-10-2018]

Case BriefsHigh Courts

Kerala High Court: A Single judge bench comprising of Alexander Thomas, J. dismissed a civil writ petition challenging the validity of Central Swatantrata Sainik Samman (SSS) Pension Scheme, 1980 for conferring eligibility only to dependent unmarried daughter and widow of a deceased freedom fighter, for grant of Freedom Fighters’ Dependent Pension.

The present challenge came to be filed when the petitioner, who is the divorced daughter of a freedom fighter, was denied the grant of Freedom Fighters’ Dependant Pension under the SSS Scheme. The competent authority had based its rejection on the ground that as per clause 5.2.2 of the SSS Scheme, only a dependent widow and dependent unmarried daughter of the deceased freedom fighter are eligible for the grant of dependent pension; and a widowed/divorced daughter is not eligible for such pension.

The court held that it was a settled law that if a Central scheme prescribes that only the dependent widow and dependent unmarried daughter of the freedom fighter, alone are eligible for the grant of dependant pension then no other category of legal representatives of the deceased freedom fighter can avail the benefit of scheme. It was further observed that a question of hostile discrimination does not arise at all since the eligibility is confined specifically to widows and unmarried daughters. As such, there was no illegality or unreasonableness in the rejection order of the competent authority. On the said holding, the present writ petition was dismissed. [Reeja Latha v Union of India,2018 SCC OnLine Ker 3481, decided on 18-09-2018]

Case BriefsSupreme Court

Supreme Court: In the case where the widow of Lt. Hari Kant Jha, a freedom fighter who was accused and arrested in a criminal case emanating from freedom struggle movement of 9th August, 1942, sought pension under Swatantrata Sainik Samman Pension Scheme, 1980, the bench of Dipak Misra and R. Banumathi, JJ held that being an “absconder” is not synonymous to being “underground” and hence, the freedom fighter in the present case did not meet the eligibility criteria of either being an underground within the meaning of the Scheme for more than six months.

As per the Scheme, where primary evidence viz. records of the relevant period are not available, ‘Non-Availability of Record Certificate (NARC)’ from the concerned authority, in the form of secondary evidence becomes a pre-requisite for claiming “underground suffering”. The instructions require the State Government to issue NARC only after due verification from the concerned sources. The Scheme explicitly lays down that the claim of being “underground” can be proved either by documentary evidence by way of Court’s/Government’s orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention; or, Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability

The freedom fighter had remained absconding for a period of 2 years starting from 16.08.1942 to 14.10.1944. He was then arrested and discharged from the case on 25.01.1945. The appellant was, however, not able to produce the document supporting the claim of her husband being “undergound” for that period. In the case of appellant, Central Government stated that the appellant has not produced any acceptable record-based evidence duly verified by the State Government to establish the claimed ‘jail’ or ‘underground sufferings’ of Late Shri Hari Kant Jha. She has also not produced NARC from the competent authority as required and that thus, the eligibility criteria is not met. Also, the Central Government stated that the jail suffering of Shri Hari Kant Jha was only for thirteen days whereas the minimum jail suffering required to become eligible for pension is 6 months.

The Court held that the Swatantrata Sainik Samman Pension Scheme, 1980 is a document based Scheme and the documents required for eligibility for Samman Pension as mentioned in the Scheme are to be produced by the applicant in support of his claimed suffering, duly verified and recommended by the concerned State Government. Hence, due to the discrepancies and ambiguities relating to the documents and also due to non-production of NARC, benefit of the Scheme could not be extended to the appellant. [Jagdamba Devi v. Union of India, 2017 SCC OnLine SC 75, decided on 31.01.2017]