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                        [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 7899-7901/2013 (arising out of S.L.P.(Civil) Nos.26441-26443 of 2012)

State of Maharashtra & Ors.      ……….Appellants

Vs.

Namdeo etc.etc.     ………Respondents

J U D G M E N T

A.K.SIKRI,J.

1. Leave granted.

2. The three respondents herein were the original petitioners who had  

filed three separate Writ Petitions in their individual capacities.   In these  

Writ Petitions, the petitioners claimed that they took part in the freedom  

movement  and  were,  therefore,  entitled  to  the  benefits  which  the  

Government has announced with the proclamation of the “Freedom Fighters  

Pension Scheme”.  Having regard to the fact that all the claims were on  

similar  set  of  facts,  the  Bench  High  Court  of  Judicature  at  Bombay  

consolidated  those  three  petitions  and  after  hearing,  has  allowed  all  by  

single judgment dated 10.2.2012 with the following directions:

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“(i)  The  impugned  orders  passed  by  the  State  Government,  thereby  rejecting  claims  of  the  petitioners  for  freedom  fighter’s  pension,  are  quashed  and  set  aside.  It  is  held  that  the  petitioners  are  entitled  to  freedom  fighter’s  pension, under the Scheme framed by the State of  Maharashtra,  from  the  date  of  their  first  application.

(ii)  The  respondent-State  and  its  concerned  authorities are directed to pay freedom fighter’s  pension to the petitioners, from the date of their  first application. They shall start payment of said  pension to the petitioners, within a period of three  months from today.  The arrears of pension, from  the dates of their first application till realization of  pension, shall be paid to the petitioners within a  period of six months from today.”

3. As the appellant/State of Maharashtra is aggrieved by this judgment,  

instant special leave petitions are filed.   Along with State of Maharashtra,  

others who have joined are the officers in the State Government who were  

arrayed as respondents in the Writ Petitions.  Notice in these petitions was  

issued pursuant  to  which respondents  entered appearance  through their  

counsel.  We heard counsel for both the parties at length.

4. In order to appreciate the controversy as well as propriety/validity of  

the orders passed by the High Court, it would be necessary to take note of  

the foundational basis of the claim for pension by the respondents.

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5. The  State  of  Maharashtra  came  out  with  Pension  Scheme  for  

“Underground  Freedom  Fighters”  and  Participants  of  the  “Hyderabad  

Liberation  Movement”  in  the  year  1982  and  1992  respectively.  

Thereafter, another specific scheme dated 4.7.1995 was framed known as  

“Freedom Fighters Pension Scheme” which was issued vide Government  

Resolution  of  even  date.   As  per  this,  the  benefits  were  extended  to  

freedom fighters of different categories stipulated therein, one of which  

was “Underground Freedom Fighters”.  Since the respondents had made  

the claim under this category, we reproduce hereinbelow the said portion  

of the Government Order dated 4th July 1995:

“Underground Freedom Fighters:-

Freedom  Fighters  of  “Bharat  Chodo”  agitation  during  1942-44  or  Hyderabad  Liberation  Movement  during  1947-48  who  worked by remaining underground, will submit  following certificate:-

(1) A certificate given type of difficulties and  troubles  of  all  sorts  undergone  during  the  agitation.

(a) Living away from the house.

(b) Explained from the educational institute  or leaving education.

(c) Received beatings from police causing  disabilities.

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(2) A certificate to the effect that he was  punished  for  minimum  of  two  years  or  declared  and  remained  absconding  for  minimum of two years from two Freedom  Fighters of that area along with true copies  of  their  certificate  to  the  effect  that  of  imprisonment  or  advertisement  of  declaration  of  absconding  or  Government  orders.  Also  an  oath  of  the  certificate  person will be attached.

(3) Certified copy of Government record  of  that  time  showing  remained  underground, if available.

(4) Original  copy  of  newspaper  of  that  time  published  giving  information  about  having gone underground of the applicant  and name etc. if available.

(5) Recommendation  and  opinion  of  Zilla  Gourav  Samiti  giving  specific  information.”

These Government Orders were made applicable to all the pending  

cases.

Facts regarding Namdeo,Respondent No.1.

6. The respondent No.1 Shri Namdeo Sopan Dhavare had filed the Writ  

Petition alleging that he had participated in the year 1947-48 Hyderabad  

Liberation Movement as underground freedom fighter, working under the  

leadership  of  freedom  fighters  Shri  Hambirrao  Krashnaji  Chavan  and  

Devidas Kishanrao Joshi.  As per him, he had actively participated as an  

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underground freedom fighter in the said movement and therefore he was  

entitled to the benefits of “Freedom Fighter’s Scheme “  framed  by  the  

State of Maharashtra (the appellant herein).  He, thus, moved application  

dated 25.8.1995  to the Collector, Osmanabad.  Along with his application  

he had annexed affidavits of three freedom fighters, namely (i)  Rajaram  

Limbaji  Chadare,  (ii)   Hambirrao  Krashnaji  Chavan  and  (iii)  Devidas  

Kishanrao Joshi.

7. In these affidavits, the said three persons had stated that Shri Namdeo  

Sopan  Dhavare  had  personally  participated  in  the  freedom  movement  

under the leadership of  Narsinghrao Balbhimrao Deshmukh, Uddhavrao  

Patil and Manikrao Bhosale.  He had attended the camp of underground  

freedom fighters at Kagla, Panbhit Tq. Barshi and was also involved in  

decoity of arms and armaments.  He was involved in the intelligence work  

and  on  account  of  his  involvement  in  the  freedom movement,  he  was  

required to be away from his family.

8. The  “Zilla  Gourav  Committee”  (hereinafter  referred  to  as  the  

“Committee”)  constituted  to  scrutinize  the  scheme,  considered  the  

application  of  the  respondent  No.1.   Two  Members  recommended  his  

name for pension but the official Member, namely the Additional Collector  

appended  his  dissenting  note.   The  recommendation  was  sent  to  the  

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Government.  The Government found that there was non-compliance with  

the scheme dated 4.7.1995 inasmuch as all the requisites stipulated therein  

for grant of pension were not fulfilled.  Accordingly, vide order dated 13 th  

July 2009, application of  Namdeo Sopan Dhavare was rejected.

Facts of  Bhagabai Shankar Malkunje,  Respondent No.2  

9. Respondent  No.2  is  the  widow  of  Shankar  Malkunje.   She  also  

moved a similar application for grant of pension stating that her  husband  

was a  freedom fighter  who had participated in  the freedom movement.  

Along with this application, she had filed affidavits of Baswappa Pirappa  

Chingunde and Hambirrao Krashnaji Chavan.  In these affidavits, it was  

stated that Shri Shankar Malkuje had participated as underground freedom  

fighter in Hyderabad Liberation Movement.  He had supplied arms and  

armaments at Gholasgao-Wagdari camp and worked on the borders under  

the leadership of Phulchand Gandhi and Swami Ramanand Tirth.  It was  

also  stated  that  late  Shri   Shankar  was  also  involved  in  the  attack  of  

Karodgiri (Kamgiri) Naka of Nizam  as well as in the collection of arms,  

food etc.  In this behalf, it was testified that since he was attending the  

underground camp at Chinchola, he was required to leave his family and  

reside at Waghdari camp.   Here applicant was also recommended by the  

Committee with the dissent of Additional Collector and the Government  

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rejected the recommendation vide order dated 20.8.2009.  

Facts of Navnath Dattatraya Hajgude, Respondent No.3.

10. He filed application for grant of pension amount dated 13th July 2006  

with Collector, Osmanabad.  He had also enclosed three affidavits, namely  

his  own  affidavit  and  affidavits  of  Hambirrao  Krashnaji  Chavan  and  

Devidasrao Kishanrao Joshi who had deposed on the same line as as was  

done in respect  of the aforesaid two persons.   His application was also  

dealt with in identical manner, namely recommended by two members but  

Additional Collector dissenting therewith.  The Government rejected the  

application vide order dated 30th October 2010.

11. From the facts noted above, it is clear that except affidavits of certain  

persons,  no  other  material  or  proof  was  given  supporting  the  claim of  

having  participated  in  the  freedom  movement.   However,  the  Scheme  

dated 4.7.95 required fulfillment of various conditions contained therein to  

enable  a  person  to  claim  the  benefits.   It  was  accepted  even  by  the  

committee that those conditions were not met by the respondents.  It is for  

this reason, in so far as the Additional Collector is concerned, he refused to  

give positive recommendation.  Notwithstanding the same, the other two  

members  of  the  Committee  recommended  the  cases  of  the  respondents  

only on the ground that the persons who had given affidavits and supported  

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the claim of the respondents were themselves recipient of pension under  

the said Scheme and therefore their version needed to be believed.   

12. The  orders  vide  which  the  applications  of  the  respondents  are  

rejected are identically worded, pointing out that these respondents had not  

submitted  the  following  documents  required  under  Government  Order  

dated 4th July 1995:

“1 Proof of trouble of all sorts made to  suffer for participation in Freedom Fight.

(a) Made to live away from household.

(b) Expelled  from educational  institute  or leaving education half way.

(c) Suffered disability due to beating by  police.

2. A certificate to the effect that he was  punished for minimum of two years or declared  and remained absconding  for  minimum of  two  years  from  two  Freedom Fighters  of  that  area  along with their true copies of their certificate to  the  effect  of  imprisonment  or  advertisement  of  declaration of  absconding or Government orders.  Also  an  oath  of  the  certifying  person  will  be  attached.  The  certificates  given  by  the  two  Freedom  Fighters  cannot  be  accepted  as  they  have already given certificates to more than 50  persons.   As such the applicant does not fulfill  the requirements.

3. The Applicant has not submitted the  certified copy of the Government record of that  

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time  stating  “remained  underground”,  if  available.

4. News  published  at  that  time  showing “remained underground with name” has  not submitted.”

13. The High Court while allowing the petitions of the respondents had  

done so on the premise that since the Committee had recommended the  

cases of the respondents, the orders of rejection by the Government were  

not valid.  It would be pertinent to note here that the appellant had referred  

to the judgment of this Court rendered in the case of  State of Maharashtra  

& Ors. Vs. Raghunath Gajanan Waingankar (2004) 6 SCC 584.   However,  

as per the High Court, the said judgment was not applicable in the instant  

cases.

14. As the main argument of the counsel for the appellant before us was  

that the judgment in the case of Raghunath (supra) squarely applies, we  

would like to discuss the said judgment in the first instance.  In that case  

also, the State of Maharashtra was the appellant.  The matter pertained to  

“Goa Freedom Fighters Pension” under this very scheme.  The respondent  

has claimed himself to be a freedom fighter entitled to such recognition  

and release of pension and other privileges as per the same Government  

Resolution  dated  4.7.1995.   He  pleaded  that  he  participated  in  Goa  

Liberation Movement and therein he sustained bullet injuries on the left  

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shoulder.   He  had  placed  reliance  on  certificate  from  Goa  Vimochan  

Samiti and certain cuttings of newspaper reports.  However, there was no  

primary  evidence  to  substantiate  his  claim.   The  State  Government  

rejected his request for grant of pension etc. and in the Writ Petition filed  

by him, the High Court set aside the order of the Government and issued  

the  writ  of  Mandamus.   It  was  noted  that  Zilla  Gourav  Samiti  had  

processed his case, like the cases of other freedom fighters, and held an  

enquiry recommending the case for pension observing that the respondent  

had  produced  solid  evidence,  incident  wise,  to  the  effect  that  he  had  

participated in the freedom fighters movement.  However, these minutes  

were  signed  by  the  Chairman  only.   The  State  had  produced  another  

Resolution of the same committee dated 2.9.2002, which was signed by  

the Chairman as well as all the members.  Those minutes recorded that the  

respondent had not been able to give any proof to substantiate his claim.  

This Court chose to rely upon Minutes dated 2.9.2002 which were signed  

by all the persons as they appeared to be more authentic as per which the  

Zilla Gourav Committee has recommended rejection of the proposal.

15. On the aforesaid facts, no doubt, the facts in the case of  Raghunath  

(supra) were altogether different.  In that case, the Court proceeded on the  

premise that there was no recommendation of the Samiti at all, whereas in  

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the present case, Samiti has recommended the cases of the respondents;  

albeit with a majority of 2:1 i.e. two members of the committee supported  

the claim and the third member i.e. Additional Collector did not agree and  

in his opinion claim should have been rejected.  Having said so, we would  

like to point out that the Court had also taken note of the earlier two cases  

dealing  with  the  standard  of  proof  which is  required  to  deal  with  the  

claims of freedom fighters.  This discussion is contained in paragraph 7 of  

the judgment which is reproduced below:

“7. It is true that in Gurdial Singh case this  Court has emphasized the need for dealing with  the  claim  of  freedom  fighters  with  sympathy  dispensing  with  the  need  for  standard  of  proof  based on the test  of  “beyond reasonable  doubt”  and  the  approach  should  be  to  uphold  the  entitlement  by  applying  the  principle  of  probability  so  as  to  honour  and  to  mitigate  the  sufferings of the freedom fighters. However, the  observations  of  this  Court  in  Mukund  Lal  Bhandari case cannot be lost sight of and given a  complete  go-by   wherein  this  Court  has  very  clearly directed that: (SCC pp.5-6, para 6)

“6. As regards the sufficiency of the proof,  the Scheme itself mentions the documents which  are  required  to  be  produced  before  the  Government.  It  is  not  possible  for  this Court  to  scrutinize the documents which according to the  petitioners, they had produced in support of their  claim and pronounce upon their genuineness. It is  the  function  of  the  Government  to  do  so.  We  would, therefore, direct accordingly:

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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  reappreciation  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  fulfillment  of  which alone  the  respondent’s  entitlement  to  the  release of freedom fighter’s pension depended.”

16.     At this stage, we would like to refer to the judgment of this Court in   

the case of  Gurdial Singh vs. Union of India & Ors. (2001) 8 SCC 8.  The  

laudable objective behind such scheme has been succinctly brought out in  

the said judgment in the following words:

“The  scheme  was  introduced  with  the  object  of  providing  grant  of  pension  to  living  freedom fighters  and their families and to the families of martyrs. It has to  be kept in mind that millions of masses of this country  had  participated  in  the  freedom  struggle  without  any  expectation of grant of any scheme at the relevant time.  It has also to be kept in mind that in the partition of the  country  most  of  citizens  who  suffered  imprisonment  were  handicapped to get  the relevant  record  from the  jails  where  they  had  suffered  imprisonment.  The  problem of getting the record from the foreign country is  

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very cumbersome and expensive. Keeping in mind the  object  of  the  scheme,  the  concerned  authorities  are  required that in appreciating the scheme for the benefit  of  freedom  fighters  a  rationale  and  not  a  technical  approach is required to be adopted. It has also to be kept  in mind that the claimants of the scheme are supposed to  be such persons who had given the best part of their life  for the country. This Court in Mukund Lal Bhandari’s  case (supra) observed:

“The object in making the said relaxation was not to  reward  or  compensate  the  sacrifices  made  in  the  freedom struggle. The object was to honour and where it  was necessary, also to mitigate the sufferings of those  who had given their all for the country in the hour of its  need. In fact, many of those who do not have sufficient  income to maintain themselves refuse to take benefit of  it,  since they consider it  as  an affront  to the sense of  patriotism  with  which  they  plunged  in  the  Freedom  Struggle. The spirit of the Scheme being both to assist  and  honour  the  needy  and  acknowledge  the  valuable  sacrifices  made,  it  would  be  contrary  to  its  spirit  to  convert  it  into  some  kind  of   a  programme  of  compensation. Yet that may be the result if the benefit is  directed to  be given retrospectively whatever  the  date  the application is  made.  The scheme should retain its  high objective with which it  was motivated.  It  should  not  further  be  forgotten  that  now its  benefit  is  made  available irrespective of the income limit. Secondly, and  this is equally important to note,  since we are by this  decision  making  the  benefit  of  the  scheme  available  irrespective  of  the  date  on  which  the  application  is  made,  it  would not be advisable to extend the benefit  retrospectively.   Lastly,  the pension under  the present  scheme  is  not  the  only  benefit  made  available  to  the  freedom fighters or their dependents.  The preference in  employment,  allotment  of  accommodation  and  in  admission to schools and colleges of their kith and kin  etc. are also the other benefits which have been made  available to them for quite sometimes now.”

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17. In  paragraph  7  of  the  judgment,  this  Court  has  highlighted  the  

manner in which such claims are to be considered for grant of Freedom  

Fighters’ Pension.   Paragraph 7 reads as under:

“7. The standard of proof required in such cases is  not  such  standard  which is  required  in  a  criminal  case or in a case adjudicated upon rival contentions  or  evidence  of  the  parties.  As  the  object  of  the  Scheme is to honour and to mitigate the sufferings  of those who had given their all for the country, a  liberal and not a technical approach is required to be  followed while determining the merits of the case of  a  person  seeking  pension  under  the  Scheme.  It  should not be forgotten that the persons intended to  be  covered  by  the  Scheme  had  suffered  for  the  country  about  half-a-century  back  and  had  not  expected  to  be  rewarded  for  the  imprisonment  suffered by them. Once the country has decided to  honour  such  freedom  fighters,  the  bureaucrats  entrusted  with  the  job  of  examining  the  cases  of  such freedom fighters are expected to keep in mind  the purpose and object of the Scheme. The case of  the claimants  under this  Scheme is  required to  be  determined on the basis of the probabilities and not  on the touchstone of the test of “beyond reasonable  doubt”.  Once  on  the  basis  of  the  evidence  it  is  probabilised  that  the  claimant  had  suffered  imprisonment  for  the  cause  of  the  country  and  during  the  freedom  struggle,  a  presumption  is  required to be drawn in his favour unless the same is  rebutted  by  cogent,  reasonable  and  reliable  evidence.”

18. In a recent judgment in the case of  Kamalbai Sinkar vs. State of  

Maharashtra & Ors. 2012 (6) SCALE 15, the Court granted the pension  

following the aforesaid dicta in Gurdial Singh case (supra).

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19. The aforementioned discussion leads us to sum up the legal position  

as under:-

(a)  The claims of  the freedom fighters  are  to be dealt  with,  with  

sympathy.

(b) The authorities are not to go by the test of “beyond reasonable  

doubt” and standard of proof based on this principle has to be discarded.

(c) On the contrary, the principle of probability is to be applied and  

eschewing  the  technicalities,  the  approach  should  be  to  uphold  the  

entitlement.

(d) When scheme itself mentions the documents which are required  

to be produced by the applicant,  normally those documents need to be  

produced to prove the claim.  

(e)  The  High  Court  exercising  writ  jurisdiction  does  not  sit  in  

judgment  over  the  decision  of  the  State  Government  like  an  appellate  

authority.  The order of the State Government is to be examined applying  

the parameters of judicial review which are available in examining the  

validity of such orders.

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(f) Even if order is found to be perverse or flawed, the High Court  

can, at the most,  remit back to the State Government to reconsider the  

case.  

However,  this  Court  has  also  observed  that  there  may  be  cases  

where because of long lapse of time or other circumstances beyond the  

control of the applicant, it is almost impossible or cumbersome to procure  

and produce all the stipulated documents.  In such cases, the claim cannot  

be summarily rejected for  want  of  documents,  even though as  per  the  

Pension  Scheme,  such  documents  are  to  be  provided.  We  are  of  the  

opinion that to meet such eventualities,  following principle needs to be  

added:

 (g) On the basis of evidence/documents/material submitted by the  

applicant, the Government should examine whether it is a genuine case  

and the documents produced establish that the applicant had participated  

in the freedom movement.  It  should be done applying the principle of  

probability. If the material/documents produced are otherwise convincing,  

the Government in appropriate cases may not insist on strict compliance  

with all the requirements stated in the Scheme.

20. These principles show a clear path as to how the claims under the  

Freedom Fighters Scheme are to be examined.   

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21. In the present case, as already noted above, except the affidavits of  

the two freedom fighters, no other material is placed to substantiate the  

claims.    Approach  of  the  High  Court  accepting  the  version  of  the  

respondents merely on affidavits, ignoring the requirements of the Scheme  

altogether,  is  fraught  with dangers  and would  be  prove  to  misuse  and  

abuse.   We can appreciate that direct evidence of having participated in  

the freedom movement, which events occurred almost 70 years ago, may  

not be available and therefore it should not be deemed that this Court is  

insisting on such direct evidence in order to enable an applicant to succeed  

in  his  claim.   At  the  same  time,  the  Government  Resolution  dated  

4.7.1995  enlists  the  documents,  on  the  production  of  whereof,  the  

respondents could substantiate their participation and involvement in the  

freedom movement.  In a given case, if there is some cogent material on  

the basis of which satisfaction can be arrived at about the participation in  

the  agitation,  the  Government  may  relax  the  other  requirements.  

However,  it  would  be  for  the  State  Government  to  exercise  such  a  

discretion, in a given case, if it is otherwise fully satisfied that the material  

produced demonstrate that the applicant is a freedom fighter.   

22. In the present case, the Government rejected the claim by passing  

speaking  order  to  the  effect  that  certain  documents  required  under  

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Government  Order  dated  4.7.1995 had not  been furnished.   Once,  the  

claim is rejected on these grounds and such an order is in consonance with  

the requirement of Scheme dated 4.7.1995, no fault  can be found with  

such  an  order  particularly  when  no  case  for  dispensation  of  these  

requirements was made out by the respondents.  The claims were based  

only on the affidavits with no other material.  We are of the opinion that if  

claims are allowed merely on such affidavits, that would amount to giving  

a complete  go by to the requirements of  the Scheme.   This cannot  be  

allowed.   We are, therefore, of the opinion that High Court could not  

have invalidated the orders of the Government.

23. Before we part with the judgment, we would like to record and deal  

with the submission of the leaned counsel for the respondents to the effect  

that  it  was  not  possible  for  the  respondents  to  get  the  original  record  

which  was  a  cumbersome  process.   The  learned  counsel  relied  upon  

Kamalbai Sinkar. vs. State of Maharashtra & Ors. (supra).  However, a  

reading of the said judgment very clearly demonstrate that in that case the  

applicant had produced a certificate which was issued by the Office of  

Nayak Tehsildar, M.K.Puranil dated 5.8.1961 in favour of  the freedom  

fighter  Shankar  Pandurang  Choudhary  (deceased  respondent  of  the  

appellant) about the imprisonments suffered by him.  Another document  

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which was produced was medical certificate dated 15.8.1991 issued by  

Dr.  S.G.Choudhari  in  favour  of  the  applicant  in  his  favour  about  his  

participation in Satyagraha Morcha on 13.8.1942, the injuries suffered by  

him in the Lathi Charge and the treatment given to him between 13.8.1942  

to 15.8.1942.  It is on these documents, the claim was held to be justified  

by this Court.  In the present case, it is stated at the cost of the repetition  

that apart from the affidavits of other freedom fighters, no other document  

is produced.   

24. We, thus, allow these appeals and set aside the orders of the High  

Court and dismiss the Writ Petitions filed by the respondents.  No costs.

…………………………J. (K.S.Radhakrishnan)

………………………..J. (A.K.Sikri)

New Delhi, 9th September,   2013

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