UNION OF INDIA Vs. S JAGANATHAN DIED

JUDGEMENT

(1.) THE above petition has been filed for modifying the directions contained in paragraph 2 of our earlier order dated 27. 2. 1996 made in the main Writ Petition No. 8452 of 1991, which reads as hereunder: "2. THE petitioner applied for "freedom Fighters' Pension by his application dated 27. 3. 1994. When the application was pending, the Government of India formulated a scheme known as " Swatantra Sainik Samman Pension scheme, 1980. THE petitioner was sanctioned Rs. 750 per month from 17. 10. 1989 vide Ministry of Home Affairs, Government of India Sanction Order No. 29/thr/ 614/74-FF-INA,dated6. 11. 1989. It is also stated that the other freedom fighters who have applied along with the petitioner in the year 1974 and thereafter they have received the pension from 1. 8. 1980 irrespective of date of sanction under the scheme of the year 1. 8. 1980. However, the respondent has sanctioned the pension under this scheme only from 17. 10. 1989. In our opinion the petitioner would be entitled to receive the pension from the date of formulation of the new scheme called Swatantra Sainik Samman Pension Scheme, 1980, that is effective from 1. 8. 1980, even though his application was dated 27. 3. 1974. Since the persons like the petitioner were also granted pension under the new scheme effective from 1. 8. 1980, the petitioner, in our opinion shall also be entitled to receive the same with effect from 1. 8. 1980. THE pension will be given to the petitioner at the then prevailing rate from time to time from 1. 8. 1980. "

(2.) IN support of the claim for modification, the petitioner herein, the respondent in the main writ petition, placed reliance on two orders of their Lordships of the Supreme Court. The first of the orders is the one made in C. A. N o. . . . of 1995 (arising out of s. L. P. (C) No. 2325 of 1995), dated 24. 4. 1995, wherein it was held by their lordships that the Government of INdia has categorically stated that the respondents were given benefit of doubt and as such the pension can only be given from the date of the order. IN addition to the said position, their lordships of the Supreme Court also have considered the material and were satisfied that the respondents have been rightly given pension by the government of INdia from the date of the order only and it is only to that extent and for the reasons noticed supra, the order of the High Court came to be set aside and that of the Union Government restored. The other order which is sought to be relied upon is the one made in C. A. N o. . . . . of 1996 (arising out of S. L. P. (C) No. 25053 of 1995) dated 30. 4. 1996. The order of the Apex Court deals with the distinguishing features of two categories of cases placed for the consideration of Their Lordships of the supreme Court and therefore it would be useful to set out the same in detail. It reads as hereunder: "heard counsel for both sides. On behalf of the union of INdian strong reliance was placed on the decision of the Division bench of this Court dated 24th April, 1995. On the other hand, learned counsel for the respondent placed reliance on an earlier judgment of this Court in Mukund Lal Bhandari and others v. Union of INdia and others, (1993)3 S. C. C. (Supp.) 2 as well as the decision in Amarnath Malhotra and others v. Union of INdia, dated 19th October, 1994. The distinction, however, is that in the case relied on by the Union of INdia the respondents were granted the benefit under the policy not because it was a clear case of the respondents being freedom fighters but because benefit of doubt was given and hence the pension was restricted from the date of the order and not the date of application. IN the two cases relied on by the respondent there was no question of the benefit having been founded on a finding of fact which did not clearly establish that the petitioners were freedom fighters but on the liberal ground of giving them the benefit of doubt and restricting it from the date of order. We are, therefore, of the opinion that there is a distinction between the decision relied on by the learned Additional Solicitor General on behalf of the Union of INdia and two decisions relied on by the respondent. IN the instant case, since the benefit of doubt was given and the status of freedomfighter was recognised on that basis, the case would be covered by the first mentioned decision Union of india v. Ganesh Chandra Dolai others, dated 24th April, 1995. IN the result, the appeal is allowed and it is directed that the benefit will be given to the respondent from the date of the order and not the date of application. " [italics applied