Disposed

Awadh Bihari Singh v. the Union of India and Ors.

Patna HC17 May 2011CWJC/3253/2010

Case brief

AI extract

What is this about?

The High Court dismissed a petition challenging a rejection of a freedom fighter pension claim. Holding that the delay was justified as a continuing wrong unaffected by third-party rights, the Court set aside the earlier order and remanded the matter to the Ministry of Home Affairs for fresh consideration within six months. Relief is computed from the date of the prior disposal.

What did the court decide?

The impugned order dated 27.11.2000 was set aside. The matter was remanded to the Ministry of Home Affairs to consider the claim afresh within six months, with benefits computed from 28.9.2000.

Awadh Bihari Singh Vs the Union of India and… — Pension and Retirement Benefits | Patna HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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CWJC No.3253 of 2010

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AWADH BIHARI SINGH S/O LATE RAM BADAI SINGH R/O VILL GIDHA, P.S.KOILWAR, DISTT-BHOJPUR AT ARA

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Versus

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THE UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF HOME AFFAIRS NORTH BLOCK, NEW DELHI-110001

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THE UNDER SECRETARY ,GOVERNMENT OF INDIA,MINISTRY OF HOME AFFAIRS JAISALMER HOUSE,MAN SINGH ROAD,NEW DELHI-110001

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THE DEPUTY SECRETARY,GOVERNMENT OF INDIA ,MINISTRY OF HOME AFFAIRS FREEDOM FIGHTERS DIVISION LOK NAYAK BHAWAN,NEW DELHI-110001

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THE STATE OF BIHAR, THROUGH ITS SECRETARY, HOME DEPARTMENT OLD SECRETARIAT BUILDING, PATNA

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THE DIRECTOR, HOME DEPARTMENT (SPECIAL) GOVERNMENT OF BIHAR, SECRETARIAT BUILDING, PATNA

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17.05.2011

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Heard learned counsel for the petitioner, the State and for the Union of India.

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A counter affidavit is stated to have been filed on behalf of the State on 9.5.2001, which is not on record. The office shall place it on record.

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The petitioner came to this Court earlier in C.W.J.C. No.9930 of 2000, disposed off on 28.9.2000 seeking the benefit of freedom fighters pension. The grievance was that despite the recommendation of the State Government, the Union of India was not taking a final decision, directions were issued to consider his claim which was then rejected on 27.11.2000. The petitioner claims to have pursued the matter thereafter by representing to the Union of India on 28.4.2009. The time gap between the years 2000 and 2009 is sought to be explained in paragraph-17 of the writ application with details of his

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illness which continues. Contending that delay can be no bar where the cause of action was continuing and no third party rights had accrued, emphasizing the nature of the pension scheme, reliance was placed on 2008 (8) 648 SCC (Union of India and Others Versus Tarsem Singh).

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It was next submitted from the impugned order of rejection that insofar as Items- I and II are concerned, if no details of the cases in which the petitioner had been involved and the N.A.R.C. report was not furnished, yet the scheme provided for alternative methods of proof by certification by persons whose eligibility was prescribed in the scheme itself and which has been submitted by the petitioner. This does not find any consideration. Questioning Item-III, it is submitted that merely because a person may have been in imprisonment himself, it cannot be said that he was incompetent to certify that another freedom fighter had not suffered by having to go underground. Freedom fighter’s work in unison and it is not permissible for the officials of the Union of India today

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to decipher, if they can, of the manner in which the freedom fighter’s functioned. Insofar as the Item-IV is concerned, the information has been furnished by the petitioner to the State and directly to the Union of India as a copy of the letter dated 1.6.1999 was addressed to the petitioner also.

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Learned counsel for the State submitted that despite the request of the State Government the petitioner had not submitted the necessary documents as required by the letter dated 1.6.1998 of the Union of India.

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Learned counsel for the petitioner retorts to submit that he had done so vide Annexure-5 dated 10.7.1998.

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Learned counsel for the Union of India emphasized the aspect of delay to submit that the claim for freedom fighter has been rejected by a reasoned order which requires no interference at this belated stage.

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There can be no doubt that the petitioner was vigilant for his claim and came to this court in C.W.J.C. No.9930 of 2000, when the respondents were not responding to his request for consideration. The petitioner therefore cannot be outright classified as an indolent litigant. He has explained his illness as a ground in his old age preventing him from pursuing matters appropriately. In the case of Tarsem Singh (supra) the Supreme Court has observed at paragraph-7 as follows:-

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“7. To summarise, normally a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is

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a long delay in seeing remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

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It cannot be lost sight of that the pension granted under the freedom fighter’s pension scheme is not a benefit granted in lieu of satisfactory service. Though called a pension it was unique in its nature recognizing the status of those who sacrificed their present for the future of the country. The standard which shall apply to them therefore shall naturally have to be different. The Court is therefore satisfied that the petitioner has furnished a plausible explanation for the subsequent delay in having moved before this Court. No third party rights have accrued

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thereby.

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The Court is conscious of the fact that any directions today for reconsideration will require records 10 years old to be culled out. But that is a responsibility which perhaps the society owes to consider a person who claims to be a freedom fighter.

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If the petitioner had furnished any alternative information in accordance with the scheme in context of the non-availability of the details of his cases, quite naturally the respondents were required to consider matters in that perspective. Merely because a person in imprisonment as a freedom fighter had certified that the petitioner had to suffer going underground for the same cause it cannot be concluded that the former was ineligible to do so. To this Court that shall only be displaying insensitivity today to the freedom fighters. In the days of the freedom struggle when modern science and technology was not available in the manner today, freedom fighters had their own method of effective communication. The independence granted to the country by their efforts is enough proof of the same. It is not possible today to make subjective assessments of situations that may have existed and how effective they were. The proof lies in the independence granted to the country by their efforts.

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If what the petitioner contends is correct that certain others have been granted the benefit of freedom

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fighter pension based on similar certification from the same freedom fighter Sri Ram Nagina Tiwari who certified the petitioner and he has furnished details of the same to the Union of India as alleged, issues of violation of Article 14 shall also arise.

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The question whether the petitioner has furnished information in response to the Union of India letter dated 1.6.1998 to the State Government or to the Union of India directly is left unanswered with the observation that perhaps it shall be in the interest of the petitioner to ensure that the information is in fact made available to the Union of India.

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The order dated 27.11.2000 is accordingly set aside. The matter is remanded to the Government of India, in the Ministry of Home Affairs to consider matters afresh.

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Before parting with the case, the Court does consider it necessary to take into consideration that the relief sought will naturally have to be moulded. Notwithstanding the fact that the petitioner may have reasonably explained his delay, it obviously cannot ensure to his full benefit. Any benefit granted to the petitioner shall therefore have to be computed with effect from 28.9.2000 the date that C.W.J.C. No. 9930 of 2000 came to be disposed, if the Union of India finds favour in his claim.

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Let such consideration be done by a reasoned

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and speaking order within a maximum period of six months from the date of receipt/production of a copy of this order before the Union of India.

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The writ application stands disposed.

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P.K.

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(Navin Sinha, J.)

Awadh Bihari Singh v. the Union of India and Ors.

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Awadh Bihari Singh v. the Union of India and Ors.

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