UNION OF INDIA Vs. JAGANATH PRASAD KESHARI

JUDGEMENT

(1.) SWATANTRATA Sainik Samman Pension Scheme, 1980, as was revised, is a Scheme introduced by the Union Executive Branch of the State. The said Scheme entailed payment of pension to those Swatantrata Sainiks who suffered during the freedom struggle of India. In order to honour those freedom fighters, the said Scheme was introduced. The Scheme required freedom fighters, who have suffered for the period and in the manner atleast to the extent as mentioned in the Scheme, to apply for grant of pension under the Scheme. The Scheme envisaged grant of pension by the Central Government. In terms of the Scheme, after having had made an application in the prescribed manner, the applicant had nothing further to do. The Scheme, however, provided that a copy of the application should be furnished to the Chief Secretary of the State Government in whose territory the suffering occurred and another to the designated Secretary of the Central Government. It provided that the State Government would scrutinize the facts furnished in the application and report to the Central Government. The Scheme further provided that the Central Government would thereupon scrutinize the application and thereafter dispose of the same in accordance with the Scheme. The Scheme did not grant any specific time to the Chief Secretary of the State or to the State Government to complete scrutiny of the application. Similarly, the Scheme did not say that within a time specified the Central Government and its Officers would be obliged to complete final scrutiny of the application. In the circumstances, if the State Government and the Central Government as well as their Officers act on an application without any delay, it is possible that the pension accordable under the Scheme may be granted to the applicant immediately on receipt of the application. On the other hand, if the State Government and the Central Government as well their Officers sit over such an application and do not scrutinize the application immediately, grant of pension may be unreasonably postponed. In the circumstances, the law conjoins a right in favour of the applicant to obtain pension from the date of making of the application in the event ultimately, the application matures into grant of pension under the said Scheme on the analogy that the decision to grant pension upon scrutiny Kailash Bihari Thakur Versus Bihar State Food & Civil Supplies Corporation of the application would relate back to the date of making of the application. In the event, although an application has been made and though the same is in the prescribed form and a copy thereof has been submitted to the Chief Secretary of the State and the other to the Central Government, but still then the application may be incomplete. In such situation, when the application is completed, in law, it would be considered that the application has been made on the date of its completion. At the time of scrutinizing the application it may be held by the Central Government that the facts upon which the pension has been sought are not so clinching that the same would tantamount to suffering by the applicant at least to the extent as mentioned in the Scheme and, accordingly, the Central Government may decide not to accord pension to the applicant. At this stage, it may also transpire to the Central Government that though a clear cut case has not been made out by the applicant, but considering the facts and circumstances of the case a benefit of doubt may be accorded to the applicant entailing pension to him under the Scheme. In such circumstances, although the application for grant of pension has succeeded, but since a benefit of doubt has been given to the applicant upon a decision to that effect having being taken, without which no pension could be accorded, it would be the date of the decision of the Central Government from which the pension will be payable and the same would not relate back to the date of making of the application.

(2.) THAT being the position of law, in Mukund Lal Bhandari and Ors. V/s. Union of India and Ors., AIR 1993 SC 2127, the Supreme Court directed payment of pension to the writ petitioner before the Hon ble Supreme Court from the date of making of the application, in -as -much as the application matured in grant of pension upon scrutiny of facts as disclosed in the application upon which there was no scope of having any doubt. The same was also reiterated by the Hon ble Supreme Court in its judgment rendered in Amarnath Malhotra V/s. Union of India. Subsequently, the Hon ble Supreme Court in the case of Union of India V/s. Ganesh Chandra Dolai held that since Ganesh Chandra Dolai could not make out a clear case of being a freedom fighter, but since benefit of doubt was given to him, Ganesh Chandra Dolai would be entitled to pension from the date of the decision to give benefit of doubt to him. All the three aforementioned judgments were rendered by Hon ble two Judges of the Hon ble Supreme Court. These three judgments were considered by three Hon ble Judges of the Hon ble Supreme Court in Union of India V/s. Chellaiah Thevar; decided on 30th April, 1996 in C.A. No. 2762 of 1996, when the Bench comprising of three Hon ble Judges of the Hon ble Supreme Court made it absolutely clear that when a clear case has been made out by the applicant and the grant of pension is on the basis thereof, the applicant will be entitled to pension from the date of the application, but if grant of pension has matured upon giving benefit of doubt, the applicant would be entitled to pension from the date of the decision giving him benefit of doubt. The observations of the Hon ble Supreme Court in Union of India V/s. M.R. Chelliah Thevar, C.A. No. 7762 of 1996, have been quoted by a Bench of Hon ble Supreme Court in the case of Union of India V/s. K.V. Swaminathan, 1997 10 SCC 190. That being the position, unless the grant is founded on benefit of doubt, the decision to grant pension will relate back to the date of the application.

(3.) A right accrued under a Scheme propounded by the Government of a democratic State for honouring those, who struggled to free the people of that State in order to enable establishment of the democratic State, cannot be denied by the selfsame State on the ground of delay. Be that as it may, if in law the right to get pension accrues from the date of making of the application, the cause of action to enforce the same being a continuing cause of action, could not be scuttled on the ground of delay.