UNION OF INDIA AND ORS.versusKASHISWAR JANA

                                [2008] 5 S.C.R. 927


     -f                   UNION OF INDIA AND ORS.                           A
                                        v
                               KASHISWAR JANA
                        (Civil Appeal No. 2259 of 2008)
                                MARCH 31, 2008
                                                                            B
             (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
...I


               Freedom Fighter's Pensio.n:
                Date of entitlement to pension - Application for freedom
          fighter's pension rejected by Central Government- High Court      c
          in writ petition allowing the claim on benefit of doubt - HELD:
          Pension is to be granted from date of order of High Court and
          not from date of filing of application.
               The respondent claiming himself to be a freedom
          fighter, filed an application on 28. 7.1981 for grant of D
          freedom fighter's pension. His claim was rejected by the
          Central Government. But, his writ petition was allowed by
          single Judge of the High Court on 4.8.1993. The Letters
          Patent Appeal of the Government was dismissed and the
          petition for special leave was also dismissed as time E
          barred. Thereafter the respondent claimed the pension
          from 28.7.1981, the date of the application; whereas the
          stand of the Government was that since benefit of doubt
          was granted to the respondent, he was entitled to the
          pension from 4.8.1993, the date of the order of the High F
          Court. The High Court did not accept the stand of the
          Government, and the Government filed the instant appeal.
               Allowing the appeal, the Court
               HELD: In view of the decision of this Court in
          Kaushalya Devi's* case, the pension is to be granted from         G
          4.8.1993, the date of the order of the High Court. (para-8)
          [930-E-F]
-t             *Kausha/aya Devi 2007(9) SCC 525 - relied on.
                                       927                                  H
    928       SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A         M.L. Bhandan vs. Union of India AIR 1993 SC 2127 -
    cited.
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2259 of 2008.

B        From the final Judgment and Order dated 22/3/2005 of
    the High Court of Calcutta at Calcutta in W.P. No. 9810 (W)/
    2000.

         T.S. Doabia, Lata Krishnamurthy, Ashok Kumar Singh,
    Naresh Kumar Gaur, Surinder Dutt Sharma, B. Swaraj, Anil
C   Kumar Tandale, Sushma Suri, Rekha Pandey, Manoj Saxena,
    Rajnish Singh, Rahul Shukla, T.V. George, N.R. Choudhary and
    Somnath Mukherjee for the appearing parties.

          The Judgment of the Court was delivered by

D         DR. ARIJIT PASAYAT, J. 1. Leave granted.

           2. Challenge in this appeal is to the judgment of a learned
    Single Judge of the Calcutta High Court allowing the Writ Petition
    filed by the respondent. The controversy lies within a very narrow
    compass. The respondent claimed to be a freedom fighter and
E   claimed freedom fighter's pension. The application in this regard
    was filed on 28 1h July, 1981. The application was rejected by
    the Central Government on 29.1.1993. A Writ Petition was filed
    before the Calcutta High Court questioning correctness of the
    order of the Single Judge. The writ petition was allowed and the
F   present appellants were directed to release pension to the
    respondent.
        3. Feeling aggrieved by the said order the Division Bench
  was moved in a Letters Patent Appeal which was dismissed. A
G special leave petition was also filed before this Court which was
  rejected as barred by time. The question that arose was the
  date from which the respondent was entitled to pension.
  Appellants released the pension with effect from 4th August, 1993
  when the writ petition filed by the respondent was allowed by
H the learned Single Judge. Respondent claimed pension from
          UNION OF INDIA AND ORS. v. KASHISWAR JANA                      929
                     [DR. ARIJIT PASAYAT, J.]

 ·•    the date of filing of the application. According to him he is entitled   A
       to pension from 28. 7 .1981 when the application was filed by
       him. Reference was made to the decision of this Court in M.L.
       Bhandari v. Union of India [AIR 1993 SC 2127].
             4. Stand of the present appellants was that since the claim
       of the respondent could not be decided till 1993 because of the          B

,(
       non co-operative attitude of the State Government regarding
       supply of requisite information. In any event, the benefit of doubt
       was granted to the respondent and in line with the order passed
       by the High Court earlier pension was granted from the date of
       order i.e. 4th August, 1993. The High Court did not accept the           c
       stand.

             5. In support of the appeal learned counsel for the appellant
       submitted that the view of the High Court is clearly untenable
       because the question whether respondent was entitled to
                                                                           D
       pension and whether he fulfilled the guidelines was under
,..    examination. Definite material was not placed by the State
       Government and only he was given benefit of doubt and because
       of the order of the High Court pension was granted to him.

           6. Learned counsel for the respondent on the other hand              E
       supported the order of the High Court.

             7. Almost similar issue came up for consideration before
       this Court in Union of India &Anr. v. Kaushalaya Devi (2007(9)
       sec 525), wherein it was inter alia observed as follows:
                                                                                F
            "3. Heard learned counsel for the parties and perused the
            record. The short question in this case is whether the
            freedom fighters' pension should be granted to the
            respondent from the date of the application or the date of
            the order granting the pension.
                                                                                G
            4. It has been held by this Court in Govt. of India v. K. V
            Swaminathan1 that where the claim is allowed on the basis
            of benefit of doubt, the pension should be granted not
 -j.
            from the date of the application but from the date of the
            order.                                                              H
    930        SUPREME COURT REPORTS                    [2008] 5 S.C.R.


A          5. In the present case, we have perused the record and
           found that it is stated therein that the claim was allowed on
           the basis of secondary nature of evidence. In other words,
           the claim was not allowed on the basis of jail certificate
           produced by the claimant but on the basis of oral statement
B          of some other detenu. Hence, we are of the opinion that
           the pension should be granted from the date of the order
           and not from the date of the application.
           6. Learned counsel for the respondent has relied on the
           judgment of this Court in Mukund Lal Bhandari v. Union
c          of lndia(AIR 1993 SC 2127)
           7. In our opinion that decision is distinguishable as it has
           been stated therein that the pension cannot be granted
           from any date prior to the application. In our opinion this
           does not mean that it cannot be granted from a date
D
           subsequent to the application.
           8. For the reasons given above this appeal is allowed.
           The impugned judgment is set aside and it is directed that
           the pension will be granted only from the date of the order
E          for granting pension and not from the date of the
           application.
         8. Keeping in view what has been stated by this Court in
    Kaushalaya Devi's case (supra) we direct the pension is to be
    granted from the date of the High Court's order i.e. 4.8.1993.
F
         9. The appeal is allowed to the aforesaid extent without
    any order as to costs.
    R.P.                                              Appeal allowed.