- (1.) Instead of hearing the stay application we have heard out the appeal itself with the consent of the learned Counsel for the parties and by treating the appeal as on day's list.
(2.) This appeal is directed against the judgment dated 25th March, 2010 of the learned Single Judge dismissing the appellant's writ application praying for a Writ of Mandamus to direct the respondent Union of India and the State of West Bengal to give the appellant pension under the Swatantra Sainik Samman Pension Scheme, 1980. The appellant had made an application for pension in the above scheme on the ground that the appellant was required to remain under ground from November, 1942 to December, 1944 during the Quit India Movement for the freedom struggle. The appellant relied on a Certificate given by Sri Rabindra Nath Giri, Son of Late Rudra Narayan Giri of village and post office Reapara, P. S. Nandigram, Subdivision Tamluk, District- Midnapore, West Bengal. The said Rabindra Nath Giri himself had actively participated in the Quit India Movement and he had himself been absconding/ undergone imprisonment for a period of five years, two months and 26 days. The said certificate was given by Sri Rabindra Nath Giri on 6th August, 1981 and the appellant had given the application for pension under the above scheme within the time limit and submitted his application on 14th August, 1981, i.e. within the time limit prescribed the Scheme. The Government of India had issued instructions from time to time laying down the guidelines for examining such applications in the Circular dated 12th April, 1982 bearing No. 8/12//81- PF(P) issued by the Government of India in the Ministry of Home Affairs (Annexure P-3". The relevant istructions reads as upder:- " i) The underground suffering recognized for the purpose of pension from the inception of the scheme provides that the person should have gone underground only after he was wanted by the Police for his activities relating to National Struggle for freedom viz., the freedom fighter should either be a proclaimed offender or on whom an award for arrest was announced or on whom detention orders were issued but were not served. In this context the fact that the freedom fighter was wanted by the Police for his activities relating to freedom struggle continues to be the essence of eligibility for pension on the basis of the underground sufferings, Voluntary abscondence, therefore, does not make a person eligible for Samman pension. ii) The pre-condition of eligibility up to 31.7.1980 has been that the fact of abscondence should be established from the official documents available with the State Government in the form of a judgment, arrest warrant or any other executive order, declaring a person an absconder. The liberalized pension Scheme however, provides with effect from 1.8.80 that in the absence of official records because of their non availability, a certificate from a prominent freedom fighter, who himself had been in jail in connection with the National Freedom Struggle for not less than five years would be acceptable to substantiate the claim of abscondence, internment or externment. This relaxation thus provides an alternative mode of evidence and before relying upon the same it would be necessary for the Government to satisfy itself that the applicant was a genuine freedom fighter and official records of the period are not available. Further, the genuineness of the certificate itself has to be verified by making a reference to the jail sufferings of 5 years, claimed by the certifier and that there is no complaint about indiscriminate certification against him. iii) It may be mentioned that a large number of persons have stacked their claims for pension unde the liberalized pension scheme on underground sufferings. Since three certificates are based on personal knowledge, it has been decided that the certifier who issues the certificates in favour of the freedom fighters should ordinarily belong to the same administrative unit (viz. District) before the reorganization of the State to which the applicant belonged, i.e. his area of operation during the freedom struggle should have been the same as that of the residence of the applicant. iv) All cases of underground sufferings/intemment/externment which are not based on official records should invariably be placed before the State Advisory Committee and the recommendation of the State Government along with the extract of the proceedings of State Advisory Committee should be forwarded to this Ministry for further- consideration." Initially the State Government had recommended the appellant's case as per communication dated 24th November, 1989 indicating that the appellant had undergone suffering from November, 1942 to December, 1944 supported by the certificate of Shri Rabindra Nath Giri, eligible certifier of Midnapore District. Despite the aforesaid Certificate, the Government of India did not sanction the appellant's application and, therefore, the appellant had to file a writ petition before this Court. The learned Single Judge of this Court directed the respondent authorities to take all steps for grant of freedom fighter's pension to the writ petitioner in accordance with law. Despite the said judgment dated 4th July, 1995, the Central Government did not grant the appellant's application and by the impugned order dated 21st June, 2000 the Government of India informed the appellant that all the available records kept in the Intelligence Branch were not consulted and there was no instruction regarding the political suffering of the appellant and hence the appellant's application was rejected. Aggrieved by the same the appellant moved this Court. The learned Single Judge by the judgment dated 23rd July, 2002 allowed the writ application and directed the authorities to decide the matter afresh on the basis of the documents produced before the authorities and recommended by the State Government. The learned Single specifically observed as under: "..........I am sure that the Central Government shall act in the matter in the spirit of the scheme only and not otherwise."
(3.) In spite of the aforesaid order and observation of the learned Single Judge of this Court made on 23rd July, 2002, the Central Government again rejected the appellant's application by the impugned order dated 1st November, 2002 indicating, inter alia, that the exact period of the appellant's suffering and the reason that the appellant had undergone were not mentioned in the application. We have gone through the application made by the appellant on 14th August, 1981 as well as the Certificate given by Sri Rabindra Nath Giri. On a perusal of the said document it is clear that Sri Rabindra Nath Giri, after stating that he had undergone absconding/imprisonment for five years, two months and twenty six days he had certified the following for the present appellant: "I do hereby certify that Gojendra Nath Manna son of late Shyam Pada Manna of Vill. Polanda, P.O. Gobindapore, P.S. Tamluk, Dist. Midnapore is known to me as freedom fighter and proclaimed offender. He joined the Quit India Movement in 1942 and took active part in the movement in the area of Tamluk Thana. When the policeman searched him arrest the left the area and worked under Nandigram Thana under my guidance. This active participation and his subversive activities in the movement, warrant of arrest was issued against him. Police tried best to arrest him but failed. According to my direction he sent underground to organize the secret movement and remained underground from November, 1942 to December, 1944. To the best of knowledge and belief he did not secure reprice on account of any oral or written apology tendered by him. He also not . grounder ground voluntarily or from fear of arrest on account of his patriotic activities. He deserves Swatantra Sainik Samman Pension and Tamrapatra.";