JUDGMENT

Delay condoned.

2. Leave granted. Heard counsel for the parties. The appellant, who is a freedom fighter was refused the grant of pension under the Swatantrata Sainik Samman Scheme by the Ministry of Home Affairs, Union of India and hence the appellant approached the High Court for the issue of a writ of certiorarified mandamus. The appellants writ petition was dismissed by a learned single Judge and the writ appeal against the said order was also dismissed by a Division Bench. Hence the present appeal by special leave.

3. Initially, the appellant sought the grant of pension on the ground that as a freedom fighter he was kept in police custody for fifteen days and after conviction he underwent imprisonment for three and a half months. Since under the Freedom Fighters Pension Scheme, a freedom fighter must have undergone a minimum period of imprisonment for six months for his participation in the freedom struggle in order to get pension under that head, the appellant was refused pension. Thereupon, he applied for grant of pension on another ground viz. that he had suffered permanent loss of vision in his left eye due to brutal lathi charge by. the police against freedom fighters. The appellants claim of permanent loss of vision in the left eye was duly certified by Government doctors. The District Collector, after making a detailed enquiry, certified the claim of the appellant as a bona fide one and recommended his case for grant of pension by letter dated 13-9-84.

4. Accepting the report of the Collector, the Deputy Secretary to the Government of Tamil Nadu addressed respondent No. 2 as under:

"It is seen from the verification report that Thiru R. Narayanan, the freedom fighter has been permanently physically handicapped due to his involvement in the freedom struggle of the nation. In the circumstances stated above, I am directed to request that the Government of India may kindly be moved to sanction Swatantrata Sainik Samman Pension to Thiru R. Narayanan of Salem District. "

5. In spite of the medical certificates issued by Government doctors and the recommendations of the District Collector and the State Government for grant of pension under the S.S.S. Pension Scheme, the Ministry of Home Affairs declined to grant pension to the appellant on the ground that "it is not possible to grant Samman Pension in terms of permanent incapacitation, hence your case stands rejected." by communication dated 30-4-85. It was in such circumstances the appellant moved the High Court of Madras for the issue of a writ of certiorarified mandamus but failed to meet with success.

6. On notice being issued to the respondents, a counter affidavit has been filed on behalf of the Union of India by Shri Kishan Chand, Under Secretary, Ministry of Home Affairs. In the counter-affidavit it has been stated as follows:-

"The alleged incapacity of his losing vision of one eye as a result of lathi blow during the freedom struggle is not considered as permanent incapacitation as contemplated under clause 3(e) under para 4 of the Scheme under the heading who is eligible. A person is eligible for the pension under the Scheme if he became permanently incapacitated during firing or lathi charge which would mean a person, in such a case, who has suffered complete loss of eye sight.

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"The case of the petitioner has been considered and correctly rejected as per the terms of Scheme, the petitioner not being eligible for pension. Moreover, the petitioner has not been able to produce any documentary evidence from official records of the relevant period in support of his claim of loss of vision in one eye. In any case, the Government having decided as a policy in not treating loss of one eye as permanent incapacitation, a discriminatory decision cannot be taken in favour of the petitioner."

7. Learned counsel for the appellant urged before us that the respondents are not justified in construing clause 3(e) of Para 4 of the Pensions Scheme to mean