STATE OF MAHARASHTRA & ORS.versusNAMDEO ETC. ETC.

                    [2013] 14 S.C.R. 245


            STATE OF MAHARASHTRA & ORS.                             A
                               v.
                    NAMDEO ETC. ETC.
            (Civil Appeal Nos. 7899-790112013)
                    SEPTEMBER 9, 2013
                                                                    B
     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

     Freedom Fighters Pension Scheme - Claim for freedom
fighter's pension - Under particular scheme - The scheme
providing for furnishing certain documents to prove the claim C
- The claims were based on affidavits and no other material
was furnished - Rejection of claim by State on the ground of
non-furnishing of the required documents - Writ petition by
the claimants -High Court directed grant of the pension -
Held: When the Scheme itself specifies requirement of D
furnishing certain documents, normally those documents
should be produced to prove the claim - However, this
requirement can be relaxed, if there is any other cogent
material available to satisfy the claim - But discretion of
relaxing the criteria is with the State and not the High Court E
while exercising writ jursidiction - In the facts of the case, since
the State rejected the claim and the claimants failed to make
out any case for dispensation of the requirements, the order
of the State cannot be found fault with - High Court could not
have invalidated the order of State.                                 F
     Evidence - Standard of proof - To prove claim for
freedom fighters' pension - Held: The standard of proof in
such cases is not thetest of beyond reasonable doubt, but it
should be pri,· ciple of probability.
                                                                    G
    The appellant-State had extended benefits to
freedom fightes of different categories by its pension
schemes for 'Underground Freedom Fighters',
participants of 'Hyderabad Liberation Movement' and
                          245                                       H
   246      SUPREME COURT REPORTS            [2013] 14 S.C.R.


A '!Freedom Fighters Pension Scheme' in the years 1982,
  and 1992 and on 4.7.1995 respectively.

       The respondents made their claim under the scheme
  for 'Underground Freedom Fighters'. Their claim was
  denied by the State. They filed writ petitions claiming that
8
  they took part in the freedom movement and hence were
  1~ntitled to the benefits which the Government had
  announced with the proclaimation of 'Freedom Fighters
  Pension Scheme'. High Court allowed their petitions.
C Hence the present appeals.

         Allowing the appeals, the Court

      HELD: 1. The claims of the freedom fighters are to
  be dealt with, with sympathy. The authorities are not to
0 go by the test of "beyond reasonable doubt" and
  standard of proof based on this principle has to be
  discarded. On the contrary, the principle of probability is
  to be applied and eschewing the technicalities, the
  approach should be to uphold the entitlement. When
E 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. [Para
   19) [260-B-D]
       2. However, there may be cases where because of
F 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
G Pension Scheme, such documents are to be provided. To
  meet such eventualities, following principle needs to be
  added. On the basis of evidence/documents/material
  submitted by the applicant, the Government should
  examine whether it is a genuine case and the documents
H produced establish that the applicant had participated in
   STATE OF MAHARASHTRA v. NAMDEO ETC.                247


the freedom movement. It should be done applying the         A
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. These
principles show a clear path as to how the claims under      B
the Freedom Fighters Scheme are to be examined. [Paras
19 and 20] (260-F-H; 261-A-C]

    3. 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     C
State Government is to be examined applying the
parameters of judicial review which are available in
examining the validity of such orders. 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       D
the case. [Para 19] (260-0-F]

     4. In the present cases, except the affidavits of the
two freedom fighters, no other material is placed to
substantiate the claims. Approach of the High Court          E
accepting the version of the responden'ts merely on
affidavits, ignoring the requirements of the Scheme
altogether, is fraught with dangers and would prove to
misuse and abuse. Direct evidence of having participated
in the freedom movement, which events occurred almost        F
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      G
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
                                                             H
    248     SUPREME COURT REPORTS            [2013] 14 S.C.R.


A 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. [Para 21) [261-C-G]
B
       5. In the present case, the Government rejected the
  claim by passing speaking order to the effect that certain
  documents required under Government Order dated
  4.7.1995 had not been furnished. Once, the claim is
C 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
D material. 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.
  Therefore, High Court could not have invalidated the
  orders of the Government. [Para 22] [261-H; 262-A-C]
E
       State of Maharashtra & Ors. vs. Raghunath Gajanan
  Waingankar (2004) 6 SCC 584; Kama/bai Sinkar vs. State
  of Maharashtra & Ors. 2012 (6) SCALE 15 - distinguished.

F       Gurdia/ Singh vs. Union of India & Ors. (2001) 8 SCC 8:
    2001 (3) Suppl. SCR 323 - referred to.
                        Case Law Reference:
      2004 (3) Suppl. SCR 365       distinguished    Para 13
G     2001 ( 3 ) Suppl. SCR 323 referred to          Para 16
      2012 (6) SCALE 15             distinguished    Para 23
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    7899-7901 of 2013.
H
   STATE OF MAHARASHTRA v. NAMDEO ETC.                          249


     From the Judgment and Order dated 10.02.2012.of the                A
High Court of Judicature at Bombay, Bench at Aurangabad in
writ Petitions No 6205. 6216 & 6250 of 2011
    Manish Pitale (for Asha Gopalan Nair) for the Appellants.
    Satyajit A. Desai, Somanath Padhan (for Anagha S.                   B
Desai) for the Respondents.
    The Judgment of the court was delivered by
    A.K. SIKRI, J. 1. Leave granted.
      2. The three respondents herein were the original
                                                                        c
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            D
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:                                                   E

    "(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,          F
    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          G
    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."                                                        H
    250       SUPREME COURT REPORTS                   [2013] 14 S.C.R.


A       3. As the appellanUState 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
B 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
C 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.

       5. The State of Maharashtra came out with Pension
  Scheme for "Underground Freedom Fighters" and Participants
D 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
E 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:
F         "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
G         following certificate:-

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

          (a) Living away from the house.
H
   STATE OF MAHARASHTRA v. NAMDEO ETC.                     251
               [A.K. SIKRI, J.]
    (b) Explained from the educational institute or leaving        A
    education.

    (c) Received beatings from police causing disabilities.

    (2) A certificate to the effect that he was punished for
    minimum of two years or declared and remained                  8
    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         C
    attached.

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

    (4) Ori~inal copy of newspaper of that time published giving   D
    i11to1mation about having gone underground of the
    applicant and name etc. if available.

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

    These Government Orders were made applicable to all the
pending cases.

Facts regarding Namdeo.Respondent No.1.
                                                                   F
      6. The respondent No.1 Shri Namd~o Sopan Dhavare had
filed the Writ Petition alleging that he had participated in the
year 194 7-48 Hyderabad Liberation Movement as
underground freedom fighter, working under the leadership of
freedom fighters Shri Hambirrao Krashnaji Chavan and               G
Devidas Kishanrao Joshi. As per him, he had actively
participated as an 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    H
    :252    SUPREME COURT REPORTS                 (2013] 14 S.C.R.


A 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
8
  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
C 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 ~o be away from his
  family.

D       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
E dissenting note. The recommendation was sent to the
  Government. The Government found that there was non-
  compliance with the scheme dated 4.7.1995 inasmuch as all
  the requisites stipulated therein fqr .grant of pension were not
  fulfilled. Accordingly, vide order dat~d '13th July 2009,
F 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
G 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
H underground freedom fighter in Hyderabad Liberation
    STATE OF MAHARASHTRA v. NAMDEO ETC.                          253
                [A.K. SIKRI, J.]
Movement. He had supplied arms and armaments at                          A
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   B
that since he was attending the underground camp at
Chinchola, he was required to leave his family and re~ide at
Waghdari camp. Here applicant was also recommended by the
Committee with the dissent of Additional Collector and the
Government rejected the recommendation vide order dated                  c
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                    D
enclosed three affidavits, namely his own affidavit and affidavits
of Hambirrao Krashnaji Chavan an·d 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                E
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
                                                                         F
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                      G
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            H
     254       SUPREME COURT REPORTS                  [2013] 14 S.C.R.


A    affidavits and supported 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
13
     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
C          participation in Freedom Fight.

                  (a) Made to live away from household.

                  (b) Expelled from educational institute or leaving
                  education half way.
D
                  (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
E          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
F
           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
G          of the Government record of that time stating "remained
           underground", if available.

                4. News published at that time showing "remained
           underground with name" has not submitted."
H
    STATE OF MAHARASHTRA v. NAMDEO ETC.                      255
                [A.K. SIKRI, J.]
     13. The High Court while allowing the petitions of the          A
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              B
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 C
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 D
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 shoulder. He had
placed reliance on certificate from Goa Vimochan Samiti and E
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 ti.1andamus. It F
was noted that Zi.lla Gourav Samiti had processed his cas.e,
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 G
 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 H
    256       SUPREME COURT REPORTS                  [2013] 14 S.C.R.


A   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.

B      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 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
C 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
D 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
E         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
F         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
G         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
H
    STATE OF MAHARASHTRA v. NAMDEO ETC.                      257
                [A.K. SIKRI, J.]
    function of the Government to do so. We would, therefore,        A
    direct accordingly:

            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          8
    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      C
    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      D
    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    E
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:
                                                                     F
    "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      G
    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 very cumbersome and expensive.                H
    258       SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A         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
B         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 compens~te the sacrifices made in the freedom
c       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
D       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 int() some kind of a
E       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
F       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
G       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
H
   STATE OF MAHARASHTRA v. NANtbEO ETC.                  259
               [A.K. SIKRI, J.]
    have been made available to them for quite sometimes       A
    now."

     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   8
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 C
    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 D
    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 E
    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 probabflities and not on the touchstone
     of the test of "beyond reasonable doubt". Once on the F
     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."
                                                                 G
     18. In a recent judgment in the case of Kama/bai Sinkar
vs. State of Maharashtra & Ors. 2012 (6) SCALE 15, the Court
granted the pension following the aforesaid dicta in Gurdial
Singh case (supra).
                                                                H
    260      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A        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       (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
c   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.
D

       (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
E examined applying the parameters of judicial review which are
  available in examining the validity of such orders.

          (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
F 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
G 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
H submitted by the applicant, the Government should examine
    STATE OF MAHARASHTRA-v. NAMDEO ETC.                      261
                [A.K. SIKRI, J.]
whether it is a genuine case and the documents produced              A
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 with1all the requirements stated in the         8
Scheme.

    20. These principles show a clear path as to how the
claims under the Freedom Fighters Scheme are to be
examined.
                                                                     c
       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     D .
  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     E
  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         F
· 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
                                                                     G
  demonstrate that the applicant is a freedom fighter.

      22. In the present case, the Government rejected the claim
 by passing speaking order to the efft:ct that certain documents
 required under Government Order dated 4.7.1995 had not been
 furnished. Once, the claim is rejected on these grounds and         H
    26:2      SUPREME COURT REPORTS                  [2013) 14 S.C.R.


A suc:h 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
B 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.
c         23. Before we part with the judgment, we would like to
    reicord and deal with the submission of the leaned counsel for
    the respondents to the effect that it was not possible for the
    n:lspondents to get the original record which was a
    cumbersome process. The ~earned counsel relied upon
D   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
    c:ertificate which was issued by the Office of Nayak Tehsildar,
    M.K.Puranil dated 5.8.1961 in favour of the freedom fighter
E   Shankar Pandurang Choudhary (deceased respondent of the
    appellant) about the imprisonments suffered by him. Another
    document 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
F   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
G   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.

H   Kalpana K. Tripathy                                   Appeals allowed.