Kishan Kaur vs Union of India and Others

Ritu Bahri, J.

This petition under Article 226 of the Constitution of India is for issuance of a writ in the nature of Mandamus directing respondent No. 2 to grant sanction for payment of arrears of Freedom Fighter Pension to the petitioner w.e.f. November, 1995 till date. Late Sh. Ajit Singh-husband of the petitioner was granted Freedom Fighter Pension by the Central Government vide Pension Payment Order No. 16010/FF/Cent. He expired on 18.12.1972. Thereafter, the Freedom Fighter Pension was transferred in the name of the petitioner. On 02.10.1994, the amount of pension was raised from Rs. 1000/- to Rs. 1500/- per month as per Annexure P-3. This pension was being credited in the account of the petitioner till October, 1995. Thereafter, being an old lady of 75 years, she moved to Australia to join her daughter and son-in-law in the year 1995-96. Consequently, the amount of Freedom Fighter Pension granted to the petitioner was stopped by respondent-State of Punjab. On a representation made by the petitioner on 30.09.1999 (Annexure P-1), she was asked to submit her claim in the prescribed format vide letter dated 08.08.2000 (Annexure P-2) issued by respondent No. 3. On receipt of the aforesaid letter, she submitted her claim in the prescribed format. In her claim application dated 29.12.2000 (Annexure P-3), she gave details of one Central government letter No. 27/J/3533/72.FF/NA dated 08.04.80. Along with the same, she also enclosed a copy of Pension Payment Order No. 16010/FF/Cent. and life certificate, which was duly attested by Notary Public. Copy of fresh Life Certificate dated 27.04.2005, duly attested by the Consulate General of India in Sydney is annexed as Annexure P-4. Though, the District Treasury Officer, Jalandhar-respondent No. 4 sent her claim to the Chief Accounts Officer, Central Pension Accounts Office, New Delhi-respondent No. 2, but the same has not been accorded till date.

On notice, written statement has been filed by respondent Nos. 3 to 5 i.e. officials of the State of Punjab, stating that pursuant to the application made by the petitioner, the respondents had sought information from her vide letter dated 17.04.2001 (Annexure R/2-T) to supply the required documents i.e. copy of pension sanction orders issued by the Government of India. Vide this letter, she was also asked, as to whether she was receiving the Government of India pension up to date. Subsequently, vide letter dated 22.06.2005 (Annexure R/3-T), she was required to send information, as to whether she had acquired foreign citizenship. An affidavit was required to be furnished in this regard. Subsequently, reminder 12.07.2005 (R/5-T) was sent to her in this regard. Finally, reference has been made to a letter dated 8/11.08.2003 (Annexure R/6) sent by the Government of India, Ministry of Home Affairs wit regard to pension case of Shri Mohinder Singh, wherein it has been stated that Swatantarta Sainik Samman Pension was applicable to only the Indian Citizens, whether living in the country or outside the country. A pensioner, who has acquired citizenship of a foreign country, is not entitled to this pension.

During the pendency of this petition, Smt. Kishan Kaur petitioner expired on 15.07.2005. Thereafter, a Division Bench of this Court dismissed this petition on 19.01.2006 on the ground that the Freedom Fighter Pension was not payable to the legal heirs of the deceased in any circumstances. Thereafter, Ram Tirath-legal heir of deceased-petitioner filed review application No. 313 of 2006 seeking review of the order dated 19.01.2006.

Respondent Nos. 1 and 2-Union of India filed reply dated 29.01.2010 to the review application, stating that Smt. Kishan Kaur petitioner was widow of Shri Ajit Singh (freedom fighter) and was residing in Australia since 1996 till her death on 15.07.2005. Before her death, she had come to India in 1999 and made an application to the concerned District Treasury Officer for payment of arrears of pension on 27.11.1999. Some correspondence had taken place among respondent Nos. 2 to 5.

Now, it is to be examined, as to whether her legal heirs are eligible for grant of arrears of pension, which she was seeking after moving to Australia.

The Freedom Fighter Pension from central revenue is meant for Indian citizens only and a person who acquires citizenship of a foreign country is not entitled for the pension. Vide letters (Annexures R/3-T to R/5-T), she was required to inform the authorities, as to whether she had acquired the citizenship of Australia or India. No document was produced by her in this regard. Reference has been made to the instructions, issued by the Ministry of Home Affairs, under the pension scheme vide letter No. 8/49/75-FF (P) dated 29th September, 1977. As per this letter, no posthumous sanction for payment of life time arrears could be issued in favour of legal heirs, who are not eligible for grant of pension under the Freedom Fighters Pension Scheme. As such, if he is not eligible for grant of pension under the Freedom Fighters Pension Scheme, he cannot be given arrears of pension, which were due to Smt. Kishan Kaur after the death on 15.07.2005.

A Full Bench of Gujarat High Court in case Patel Rambhai Ganeshbhai v. State of Gujrat, Special Civil Application Nos. 4089 of 2007, 9513 of 2008, 21286 and 21363 of 2006 (Annexure R-1) made reference to Clause 2 of Circular No. 16/1977 issued by Union of India on 29th September, 1977. Relevant Clause 2 of the above circular reads as under:--

"2. In cases where the freedom fighters expires after submission of their application without pension being sanctioned in their favour leaving behind successors who are eligible for grant of family pension under the provisions of the Freedom Fighters Pension Scheme, family pension can be sanctioned in favour of the eligible dependents from the date following the date of death of the Freedom Fighters and the beneficiary can also draw the life time arrears of pension which the freedom fighters would have drawn, had the sanction been issued before his death. But no posthumous sanction for payment of life time arrears could be issued in such cases in favour of legal heirs who are not eligible for grant of pension under the Freedom Fighters Pension Scheme."

The Full Bench, after noticing the above said circular issued under the Swatantarta Samman Pension Scheme, 1980, held that the eligible dependents are mother, father, widower, widow (if she has not since remarried) or unmarried daughters. Son is not an eligible dependent for grant of Swatantarta Samman Pension. There is no provision for posthumous sanction for payment of life time arrears for legal heirs, who are not eligible for grant of pension under the Freedom Fighters Pension Scheme. In this case, after the death of Smt. Kishan Kaur-petitioner on 15.07.2005, her son Ram Tirath is claiming arrears of pension, who is neither eligible for grant of pension nor eligible for payment of arrears under the Swatantarta Samman Pension Scheme, 1980 in view of the judgment delivered by the Gujrat High Court in Patel Rambhai Ganeshbhai''s case (supra).

Resultantly, the writ petition is dismissed.