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PETITIONER: SURJA  AND  OTHERS

       Vs.

RESPONDENT: UNION   OF  INDIA  AND  ANR.

DATE OF JUDGMENT13/09/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) SAWANT, P.B.

CITATION:  1991 SCR  Supl. (1) 116  1991 SCC  (4) 366  JT 1991 (4)   184        1991 SCALE  (2)532

ACT:     Freedom  Fighters’  Pension  Scheme,  1972  (Swatantrata Sainik Samman Petision Scheme, 1980)--Pension  under--Eligi- bility indicated.     Constitution  of India, 1950--Article 32  Writ  Petition claiming     freedom    fighters’    pension--Arya     Samaj movement---Whether  a  part  of  freedom   struggle--Freedom fighters’ pension--Whether Arya Samajists entitled.

HEADNOTE:     In the Application under Article 32 of the  Constitution by 55 persons claiming the benefit of the scheme of  pension for  Freedom Fighters, the petitioners contended  that  they had joined the Arya Samaj movement in the late 1930s  within the erstwhile Nizam’s State of Hyderabad and were  convicted under different provisions of the criminal law and sentenced to various terms of imprisonment; that the Arya Samaj  move- ment  had  been equated with the freedom  struggle  and  the benefit  of the pension scheme was admissible to  those  who had participated in the movement.     The respondents while not disputing the assertion of the petitioners  that the Union of India has accepted  the  Arya Samaj  movement  to be a part of the freedom  struggle,  has disputed  the entitlement of pension in the case of most  of the petitioners. Allowing the petition, this Court,     HELD: 1. Freedom Fighters’ Pension Scheme of 1972  which was  renamed  as "Swatantrata Sainik Samman  Pension  Scheme 1980"  indicates: "A person who has suffered a  minimum  im- prisonment  for  six  months in the  mainland  jails  before independence in the struggle for independence is eligible to be  admitted  to the benefits of the pension." Each  of  the petitioners  had  been convicted and was ordered  to  suffer imprisonment of more than six months. While they were under- going  sentence, without their praying for any ’emission,  a general amnesty was declared by the then Nizam on his birth- day  and the sentence was reduced and the  petitioners  were set free. [118 E-F,D]     2.  In the facts of the case it would be appropriate  to hold  that each of the petitioners satisfied  the  condition for  earning the benefit of pension and the fact that  while undergoing sentence which was for a period beyond

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117 six months remission had been granted and they were let  off earlier  would  not take away their right to  earn  pension. [118F]     Duli  Chand  &  Ors. v. Union of  India  &  Ors.,W.P.No. 1190/89, dated, July 16, 1991 by the Supreme Court of India, followed.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (c) No. 75 Of 1991. (Under Article 32 of the Constitution of India) R.P. Singh for the Petitioners.     G. Ramaswamy, Attorney General, A.K. Srivastava and  Ms. A. Subhashini (N.P.) for the Respondents. The Judgment of the Court was delivered by     RANGANATH MISRA, CJ. This is an application under  Arti- cle 32 of the Constitution by 55 persons--both men and women - claiming the benefit of the scheme of pension for  Freedom Fighters.     It is the common contention of the petitioners that they had joined the Arya Samaj movement in the late 1930s  within the  erstwhile Nizam’s State of Hyderabad and each  of  them had been convicted under different provisions of the  crimi- nal  law then prevailing within the Nizam’s State  and  sen- tenced to various terms of imprisonment. In the case of most of them the term of imprisonment was around two years.  They maintained  that  the Arya Samaj movement has  been  equated with  the  freedom struggle and the benefit of  the  pension scheme  is admissible to those who had participated  in  the movement as Arya Samajists. According to them, in the  prime of  youth the petitioners had been motivated by the call  of Mahatma  Gandhi, the Father of the Nation and  leaders  like the  late  Pt.  Jawaharlal Nehru, Dr.  Rajendra  Prasad  and others and had given up their home and hearth and had joined the  agitation  within the Nizam’s State  and  suffered  the consequences.  Since  their claim for pension had  not  been accepted  by  the Government of India they have  applied  to this  Court for appropriate direction for being admitted  to the benefits of the scheme.     A  counter  affidavit has been filed on  behalf  of  the respondents by Under Secretary Alam in the Ministry of  Home Affairs  who while not disputing the assertion of the  peti- tioners that the Union of India had accepted the Arya  Samaj movement  to be a part of the freedom struggle has  disputed the entitlement of pension in the case of most of the  peti- tioners. 118     Petitioners have relied upon the decision of this  Court dated July 16, 1991, in Writ Petition No. 1190/89 Duli Chand &  Ors.  v.  Union of India &  Ors.)  where  similar  relief claimed by 41 persons had been accepted. That case,  accord- ing to the counter affidavit, was disposed of ex pane and by accepting all the allegations of the petitioners therein. In view  of  the dispute now raised in the  counter  affidavit, particularly  with reference to the factual aspects,  we  do not think it would be appropriate to dispose of the  present petition  by  adopting the order of this Court in  the  said writ petition.     It is the accepted position that if petitioners suffered the  minimum sentence of six months of imprisonment  on  ac- count of their participation in the Arya Samaj movement they would  be entitled to pension under the  Swatantrata  Sainik Samman Pension Scheme. The question for examination,  there-

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fore, is whether petitioners did suffer such sentence.     As  we  have already mentioned most of  the  petitioners have produced material to show that they had participated as alleged and were sentenced to imprisonment for terms exceed- ing six months. While they were undergoing sentence, without their  praying  for  any remission, a  general  amnesty  was declared by the then Nizam on his birthday and the  sentence was reduced and the petitioners were set free.     Freedom Fighters’ Pension Scheme of 1972 was renamed  as "Swatantrata  Sainik Samman Pension Scheme 1980".  The  bro- chure  published by the Union of India indicates: "A  person who  had suffered a minimum imprisonment for six  months  in the  mainland jails before independence in the struggle  for independence  is eligible to be admitted to the benefits  of the pension". It has already been indicated that each of the petitioners  had  been convicted and was ordered  to  suffer imprisonment  of  more  than six  months.  The  petitioners’ assertion  that  they did not claim remission has  not  been doubted  or disputed. In the facts of the case it  would  be appropriate  to hold that each of the petitioners  satisfied the  condition  for earning the benefit of pension  and  the fact  that while undergoing sentence which was for a  period beyond  six months remission had been granted and they  were let  off  earlier would not take away their  right  to  earn pension. Learned Attorney General appearing for the respond- ents  has  accepted  this construction  of  the  entitlement clause.     The  writ  petition is accordingly allowed and  the  re- spondents  are directed to admit each of the petitioners  to pension  under the Scheme within two months hence. The  pen- sion  be  paid with effect from 1st August 1990  as  in  the connected case. No costs. V.P.R.                                Petition allowed. 119