- 1 - IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE7H DAY OF JULY, 2023 PRESENT THE HON'BLE MR JUSTICE R.DEVDAS AND THE HON'BLE MR JUSTICE RAJESH RAI K WRIT APPEAL NO.100216 OF2022(GM-FF) BETWEEN:
1. THE STATE OF KARNATAKA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF DPAR (POLITICAL PENSION) M.S.BULDING, BENGALURU- 560 001.
2. THE DEPUTY COMMISSIONER, BELAGAVI DISTRICT, BELAGAVI- 590 001.
3. THE ASSISTANT COMMISSIONER, BAILHONGAL, SUB DIVISION, BAILHONGAL, DISTRICT BELAGAVI- 591 102.
4. THE JOINT DIRECTOR, DISTRICT TREASURY OFFICER, BELAGAVI DISTRICT, BELAGAVI- 591 102. …APPELLANTS (BY SRI. VIDYAVATHI M. KOTTURSHETTAR, AAG AND SRI. V.S.KALASURMATH, HCGP) AND: SMT. TAYAWWA, W/O. BASALINGAPPA TEGUR, AGE82YEARS, OCC: HOUSEHOLD WORK, R/O. UDAKERI, TALUK BAILHONGAL, DISTRICT BELAGAVI- 591 102. …RESPONDENT (SRI. H.M.DHARIGOND AND SMT. SANGEETHA F. KALLIMANI, ADVOCATES) - 2 - THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.103253/2021 DATED1409.2021. THIS APPEAL, COMING ON FOR ORDER
S, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON1704.2023, THIS DAY, RAJESH RAI.K J., DELIVERED THE FOLLOWING: JUDGMENT
The appellants in this writ appeal have questioned the correctness and validity of the order dated 14.09.2021, passed in W.P.No.103253/2021 wherein the learned single Judge by allowing the writ petition quashed the order dated 02.03.2021 passed by the first appellant herein and further directed to take necessary steps to grant/disburse freedom fighters' pension together with all arrears in favour of the respondent. Being aggrieved by the said order passed by the learned Single Judge, the appellant-State has filed this writ appeal to set aside the order of the learned single Judge.-. 3 - 2. Brief facts which are necessary for disposal of this appeal are as under: The respondent is a widow. Her husband was a freedom fighter and is said to have participated in the Quit India Movement in the year 1942. After introduction of Freedom Fighters' Pension Scheme, 1969, he made an application along with all necessary documents before the first appellant and requested for grant of Freedom Fighters' Pension. In pursuance of the request made by the husband of the respondent, the first appellant granted Freedom Fighters' Pension to him vide order dated 28.02.1992. Subsequently, the Government issued an order on 09.03.1995 bearing No.DPAR59PFG94 Bengaluru and directed all the Deputy Commissioners to re-verify the cases of freedom fighters' pension and submit a report along with list of documents. Accordingly, the appellants have cancelled the freedom fighters' pension of the husband of the respondent vide order dated 25.01.2000. The said order attained finality since the - 4 - husband of the respondent did not question the same and he died on 08.05.2010.
3. After lapse of 14 years, the respondent herein made a representation before the appellant/authority to grant the freedom fighters' pension along with the co- prisoners' certificates of Sri. T.V.Odisumath and C.Y.Kabbin and some other documents before the appellants and requested to pay the arrears of pension. Considering the application, a detailed enquiry was held and the appellant-Authority rejected the claim of the respondent for the reason that she failed to produce relevant documents. Against the same, the respondent filed W.P.No.109678/2017 and the writ petition came to be allowed and a direction was issued to the second appellant to consider the case of the respondent in accordance with law within a period of three months, vide order dated 12.07.2018. Later after due consideration of the matter, and as per the direction issued by the Court, the first appellant once again rejected the claim of the - 5 - respondent vide order dated 27.10.2018 and confirmed the earlier order dated 25.01.2000.
4. Aggrieved by the said order the respondent once again filed W.P.No.108379/2019 before the learned single Judge and the learned single Judge vide order dated 18.09.2020 allowed the writ petition and directed the appellants to reconsider the matter within a period of two months from the date of receipt of the order. Accordingly, the appellants once again considered the matter of the respondent by following the direction of the Hon’ble Court and has rejected the claim of the respondent vide order dated 02.03.2021. Being aggrieved by the said order, nevertheless, the respondent once again filed W.P. No.103253/2021 and the learned single Judge allowed the writ petition i.e., the order impugned herein and thereby quashed the order dated 02.03.2021 of first appellant and directed the appellant to disburse the pension to the respondent within a period of two months. Being aggrieved by the said order of the learned single Judge, the appellant-State has filed this writ appeal.-. 6 - 5. We have heard the learned Additional Advocate General Smt. Vidyavathi for the State and Sri.H.M.Dharigond, learned Counsel for the respondent.
6. Learned AAG would vehemently contend that the freedom fighters' pension was granted to the respondent’s husband in the year 1992, the same was cancelled on 25.01.2000. The said order was passed after a detailed enquiry conducted by the appellants for the reason that husband of the respondent failed to furnish any authenticated document for his claim. Later, on 08.05.2010, the husband of the respondent expired without challenging the order passed by the appellants. Hence, the said order of cancellation of pension dated 25.01.2000 has attained finality. Later, after 14 years after the death of the husband of the respondent, she submitted a representation for payment of arrears and family pension. The learned AAG submits that, in order to grant freedom fighters’ pension, it is one of the condition precedent that the applicant should produce his/her imprisonment certificate from two co-prisoners. The - 7 - certificate produced by the respondent before the authority was verified and it was found that they are not genuine documents. It was also found that those co- prisoners were black listed by the Government of India. The Government of India had written a letter to the Under Secretary on 27.10.1987 directing not to accept the co- prisoners' certificate of ten persons which includes the names of Sri T.V.Odisumath and Sri C.Y.Kabbin, who had issued the certificate in favour of the respondent. Further, the Law Secretary to the Government, after verification of the said certificates, gave an opinion on 24.09.2018 and 20.10.2018 that, ‘considering the black listed co-prisoners' certificate for granting pension would not be appropriate’. Hence, the authority once again rejected the claim of the respondent’s husband. Though the respondent repeatedly approached this Court by filing successive writ petitions, but the appellant-authority after due consideration, rejected the claim of the respondent. The respondent has also failed to produce the authenticated original records like jail certificate, arrest warrant and co-prisoners' certificate in support of participation of her husband in - 8 - freedom movement during his life time. The guidelines issued by the Central Government in respect of Central Sanman Pension Scheme is not considered wherein it was directed that ‘No pension shall be sanctioned in the name of the freedom fighter after his/her death, even if his/her matter was under examination’. This entails that applications for grant of freedom fighters pension shall not be sanctioned to his/her spouse/daughter after the death of freedom fighter. The said guidelines are very much followed by the State Government also, hence the respondent is not entitled for the freedom fighters’ pension since her husband died in the year 2010. Accordingly, learned AAG prays to allow the writ appeal by setting aside the order passed by the learned single Judge.
7. Learned AAG relied on the Judgment passed by the Hon’ble Apex Court in the case of Union of India Vs. Bikash R.Bhowmik and others reported in (2004) 7 SCC722 - 9 - 8. Per contra, learned counsel for the respondent would vehemently contend that, the order passed by the learned single Judge does not suffer from any illegality or perversity and the same is based on the material available on record and as such, the same does not call for interference by this Court. He would further contend that, during the life time of the husband of the appellant, he received the pension from the appellant-authority till the year 2000. Hence, once the benefits have been extended as per the rules after making detailed enquiry by the District Level Committee and those committees have recommended the name of the respondent’s husband for grant of pension and subsequently the said order was set aside by the appellants without assigning any proper reason. He would contend that, the guidelines issued in the year 2014 by the Central Government which is very much earlier to the earlier endorsements and the said circular/guidelines are prospective in nature and not retrospective, thereby the said circular do not apply to the claim of the respondent in whose husband’s favour pension had already been granted in the year 1992, i.e.-. 10 - much prior to the issuance of the said circular/guidelines. According to the learned counsel by relying on that aspect only, the learned single Judge allowed the writ petition. He would further contend that, the co-prisoners' certificates is produced by the respondent, accepted by the initial committees and subsequently rejected by the authorities without any reason. The order of rejection of pension passed by the first appellant is totally arbitrary based on assumption and presumption by questioning the genuineness of the documents produced by the respondent before the authority. Though this Court repeatedly considered the case of the respondent for grant of pension and directed the appellants to consider her case and to grant pension, in spite of that, the Government failed to act upon it and as such, the learned single Judge rightly allowed the writ petition and directed the appellants to take necessary steps to grant/disburse freedom fighters’ pension together with all arrears in favour of the respondent. Hence, the learned counsel prays to dismiss the appeal.-. 11 - 9. We have bestowed our anxious consideration both on the arguments advanced by both the parties as well the material available on record.
10. Having heard the counsel for the appellants and the respondent and having perused the documents, the only point that would arise for our consideration is; “Whether the learned Single Judge was justified in allowing the Writ Petition No.103253/2021 filed by the respondent by quashing the order dated 02.03.2021 passed by the first appellant and thereby directing the appellants to grant/disburse the freedom fighters’ pension together with all arrears in favour of the respondent?.
11. On a cursory glance of the material available on record, it could be seen from the order dated 02.03.2021 passed by the first appellant that the husband of the respondent Late Basavalingappa Irappa Tegur was granted freedom fighters' pension vide order dated 28.02.1992. Subsequently, the Government ordered all the Deputy Commissioners to re-verify the cases of the freedom fighters and the authenticity of the documents produced - 12 - by them. Accordingly, the concerned officers verified the documents including the documents submitted by the husband of the respondent. Later, the District Commissioner directed him to produce relevant original documents in support of his participation in freedom movement. Though the husband of the respondent appeared before the District Commissioner during the enquiry, but failed to produce any such authenticated documents in support of his claim. As such, the Government cancelled the freedom fighters' pension on 25.01.2000. The said order has attained finality since the husband of the respondent did not challenge the same either by filing the writ petition or by approaching the authorities. Moreover the husband of the respondent expired on 08.05.2010. Later, after 14 years after the date of death of the husband of the respondent in the year 2014, the respondent made the representation before the appellants to consider her claim. Further, the co-prisoners' certificates relied by the respondent’s husband initially of Sri M.S.Hurkadli and Sri S.M.Bisinakoppa were not tallying with each other in the enquiry held before the Deputy - 13 - Secretary, DPAR. Later the respondent produced the co- prisoners certificate of Sri T.V.Odisumath and Sri C.Y.Kabbin, but their names are already black listed by the Central Government. As such, the authorities rightly rejected their claim for the reason that they failed to produce authenticated document. Moreover, in the year 2014 the guidelines issued by the Central Government for disbursement of Central Government Sanman Pension Scheme was followed by the State Government also provides that ‘No pension shall be sanctioned in the name of freedom fighter after his/her death even his/her matter was under examination’. Hence, in our considered opinion the first appellant rightly rejected the claim of the respondent for grant of freedom fighters' pension.
12. Learned single Judge while allowing the writ petition held that, the circular/guidelines of the year 2014 are prospective in nature and not retrospective and do not apply to the claim of the respondent in whose husband’s favour pension had already been granted in the year 1992, - 14 - much prior to issuance of the said circular/guidelines. This view of the learned single Judge cannot be accepted for the reason that, though the said circular are prospective in nature, nevertheless, the respondent approached the appellants in the year 2014 by submitting the representation claiming pension. By that time, the circular/guidelines of the year 2014 was already issued and was in existence. In such circumstances, though the circular/guidelines are prospective in nature the same will applicable in the case of respondent also.
13. The Hon’ble Apex Court in the Judgment rendered in the case of Union of India Vs. Bikash R. Bhowmik and others reported in (2004) 7 SCC722at paragraph No.2 held as under: “Learned Additional Solicitor General appearing on behalf of Union of India relied upon two decisions of this Court viz., Mukund Lal Bhandari Vs. Union of India 1993 Supp (3) SCC2and Union of India Vs. Mohan Singh (1996) 10 SCC351to the effect that pension could be sanctioned only as per proof as required in the pension scheme and in no other - 15 - manner. We think there is great force in the submission made by the learned Additional Solicitor General. We find that the High Court could not have traveled beyond the pension scheme to find that there was substantial compliance with the prerequisites as to suffering of imprisonment. In order to get the benefit of the pension scheme, the proof required must be as provided in the pension scheme itself. As long as such proof was not available, the benefit could not have been granted. Therefore, we set aside the order of the High Court and dismiss the writ petition filed by the respondent No.1. The appeal is allowed accordingly.” [Emphasis supplied].
14. The dictum laid down by the Hon’ble Apex Court in the above case is squarely applicable in the case on hand. In that view of the matter, in our considered opinion, the order passed by the learned Single Judge in W.P.No.103253/2021 is liable to be set aside. Accordingly, we answer the above point and proceed to pass the following order: - 16 - ORDER
i) The appeal filed by the appellants is allowed. ii) The order passed by the learned single Judge in W.P.No.103253/2021 dated 14.09.2021 is hereby set aside. Pending I.As, if any, shall stand disposed off. Sd/- JUDGE Sd/- JUDGE SVH/bnv/JT