Madhavrao v. The State of Maharashtra

Judgment

4. The State of Maharashtra Through the Secretary, General Administration Department Mantralaya, Mumbai 32 The Desk Officer General Administration Department Mantralaya, Mumbai 32 The Collector, Aurangabad Tq. & Dist. Aurangabad The High Power Committee General Administration Department 19th Floor, Mantralaya Mumbai ..RESPONDENTS Mr G.N. Chincholkar, Advocate for the petitioner; Mr K.B. Choudhari, Asstt. Govt. Pleader for respondents no.1 to 3; Mr Bhushan Kulkarni, Advocate for respondent no.4

CORAM : SMT. NISHITA MHATRE AND S.S. SHINDE, JJ. DATE : 21st March, 2011 2 W.P.No.5762 of 2008 ORAL JUDGMENT (PER SMT. MHATRE, J.) Rule. Rule made returnable forthwith by consent. The present petition has been filed against the order passed by respondent no.2 on 30th May, 2008 refusing to grant the Freedom Fighter's pension to the petitioner.

2. The petitioner claims that he worked as an underground Freedom Fighter in the Hyderabad Mukti Sangram during the period from 1947-48. According to him he was a colleague of Nivrutti Dadarao Raut and Shekaji Kondiba Patil Shejul at camp at Kolte Takali, Taluka Phulambri, District Aurangabad. He claims that he was an informant about the Razakar movement and passed on requisite information to the Freedom Fighters assembled in the rural areas of the then Hyderabad State. The petitioner also claims to have participated in the agitation to create a spirit of Independence amongst the people of the rural areas. Several other incidents in which he claims to have participated have been mentioned in the writ petition.

3. The petitioner submitted an application on 24th September, 1998 for pension available under the Government's scheme for Freedom Fighters. The petitioner mentioned in his application that he was an underground Freedom Fighter and, therefore, there was no police record with respect to his participation in the struggle. He annexed the affidavits 3 W.P.No.5762 of 2008 of these Freedom Fighters. These Freedom Fighters were punished and the certificates issued by the jail authorities in respect of their punishment were annexed to their affidavits.

4. The petitioner appeared before the Zilla Swatantrya Sainik Gaurav Samiti at Aurangabad. This Samiti recommended his case to the respondent no.2 i.e. the State Government. The Committee found that all the papers of the petitioner which were submitted to it were in order and in conformity with the Government Resolution dated 4th July, 1995. Since he was not granted the pension, the petitioner approached this Court by filing Writ Petition No.8013 of 2006. By its order dated

14.2.2007 the Division Bench of this Court directed the petitioner to submit photo copies of all the documents that he had earlier submitted to the Collector's office for his pension papers to be processed. A further direction was issued to the State to decide the petitioner's application within three months.

5. The State has rejected the petitioner's application once again on 30th May, 2008. Hence the present petition.

6. The learned Advocate for the petitioner submits that the decision of the State to reject the petitioner's application is wholly misconceived. He submits that it is not necessary for a Freedom Fighter to submit records in relation to each of the criteria mentioned in the Government 4 W.P.No.5762 of 2008 Resolution dated 4th July, 1995. He points out that the communication received by the petitioner denying him the pension merely indicates that the petitioner had not fulfilled the conditions as per the Government Guidelines. However, this order does not mention which condition has been breached or not fulfilled by the petitioner, according to the learned Advocate.

7. An affidavit has been filed by the State in which it has relied on the judgment of the Supreme Court in the case of State of Maharashtra & ors. vs. Raghunath Gajanan Waingankar, (2004) 4 Bom CR 427. It is submitted by the learned Advocate for respondent no.4 that this Court cannot relax any of the conditions mentioned in the Government Resolution dated 4th July, 1995.

8. In his re-joinder the petitioner reiterates what he has stated in his petition and again points out the affidavits of Nivrutti Dadarao Raut, Shekaji Kondiba Patil Shejul and Khanderao Ganpatrao Khalse, in which each of them have vouched for the fact that the petitioner was their associate in the Hyderabad Mukti Sangram.

9. It appears that the petitioner has not submitted any other evidence indicating that he had left his home in order to participate in the underground movement. Besides the affidavits of his associates, the petitioner has not produced any other document to indicate that he had 5 W.P.No.5762 of 2008 participated in the struggle. The learned Advocate for the petitioner has relied on the decisions of the Division Bench of this Court in Writ Petition No.2831 of 2000 and other connected matters as well as in Writ Petition No.4558 of 2000. By the judgment and order of 26th July, 2010 in Writ Petition No.2831 of 2000 the Division Bench has observed that the petitioners in the cases before it had drawn support from affidavits filed by their colleagues who had participated in the freedom struggle and who spoke about the respective petitioners' participation in the struggle. The District Level Committee had also recommended the payment of pension to the petitioners before the Division Bench. The State, however, had refused the pension. It appears from this judgment that one of the petitioners had produced the record from the Police Patil indicating that, that petitioner was missing from the house during the period of the freedom struggle. However, the judgment of the Supreme Court in Waingankar's case (supra) has not been noticed by the Division Bench. While dealing with Writ Petition No.4558 of 2000, after considering the aforementioned judgment of the Supreme Court, the Division Bench allowed the claim of the petitioner therein as he had participated in events in which similarly circumstanced persons had been granted pension earlier. It is, in these circumstances, that those writ petitions were disposed of.

10. In Waingankar's case (supra) the Freedom Fighter claimed to have participated in the Goa Liberation Movement where he had 6 W.P.No.5762 of 2008 sustained the bullet injury on the left shoulder. He relied on a certificate issued by the Goa Vimochan Samiti recommending payment of pension and certain clippings from newspaper reports, to substantiate his case of participation in the movement. This Court had allowed the pension claimed by the petitioner as a Freedom Fighter. The State then approached the Apex Court against the judgment of the High Court. The Apex Court noted that considering the documents produced it appeared that the Chairman of the Committee had not signed the minutes of the meeting which was held on 2nd September, 2002 recommending the case of Waingankar for Freedom Fighter's pension. It is in these circumstances, that the Apex Court noted as follows :- "The High Court exercising writ jurisdiction does not sit in judgment over the decision of the State Government like an appellate authority. Ordinarily, the High Court exercising writ jurisdiction cannot enter into re-appreciation of evidence and reverse the findings arrived at by the State Government unless they be perverse or be such as no reasonable man acting reasonably could have arrived at. If the High Court found that the decision arrived at by the State Government was flawed in any way then the High Court should have, after laying down the necessary principles or guidelines or issuing directions, directed the State Government to reconsider the case of the respondent. In no case, the High Court could have in exercise of its writ jurisdiction relaxed the need for full satisfaction of the necessary requirements on the fulfilment of which alone the respondent's entitlement to the release of freedom fighter's pension depended." 7 W.P.No.5762 of 2008

11. We have perused the Government Resolution of 4th July, 1995 carefully and we are of the opinion that the criteria mentioned in the resolution to be fulfilled by the Freedom Fighter seeking pension are merely enumerated. The resolution does not stipulate that each one of the criteria should be fulfilled by the Freedom Fighter before he is entitled to pension. And advisedly so. The conditions stated in the Government Resolution are as follows in respect of those who participated in the underground movement. Thus the conditions stipulated about a police record or police brutality could possibly not be fulfilled by those who participated in the underground movement :- Documents/Records showing :

3. The hardships + difficulties faced by the Freedom Fighter. The Freedom Fighter was required to leave his residence The Freedom Fighter had discontinued his education or that he was rusticated from school.

4. Police brutality faced by the Freedom Fighter which resulted in maiming him

5. Affidavits of two Freedom Fighters from the same area who could vouch for the applicant's participation in the movement together with their own records indicating imprisonment or a proclamation that they were absconders. 8 W.P.No.5762 of 2008

6. Government records indicating the applicant had participated in the underground movement.

7. Original newspaper clippings mentioning the name of the applicant for having participated in the underground movement

8. Recommendation of the District Level Committee. Similarly it may not be possible for a person who left his residence before he/she attained the age of eighteen years, to produce any record that he had left his home. Furthermore, if the Freedom Fighter was never enrolled in a school and is an illiterate person, like the petitioner in the present case, it would be well nigh impossible for him to produce school records indicating a break in his education.

12. In our view, it would be appropriate to remand the matter to the State Government to consider the claim of the petitioner afresh. While doing so, we are not expressing any opinion about the sufficiency or otherwise of the documents or evidence produced by the petitioner in support of his claim. However, it must be recorded that the affidavits produced by the petitioner of his associates during the freedom struggle should enable the Government to consider the petitioner's claim for pension positively. These affidavits have been filed by Freedom Fighters who are already drawing pension under the scheme applicable to 9 W.P.No.5762 of 2008 Freedom Fighters. Therefore, their affidavits would certainly have a probative value on the claim of the petitioner.

13. Accordingly, the writ petition is disposed of by directing the State to consider the petitioner's claim for pension as a Freedom Fighter afresh. The petitioner may file any further documents, if necessary, to substantiate his claim within four weeks from today. The State will consider the documents which are already on record as well as any additional documents which may be filed by the petitioner. The claim of the petitioner shall be decided within four months from today. Rule made absolute accordingly.