Order

PER MR. BHASKAR BHATTACHARYA, ACJ. :-

1. By this writ-application under Article 226 of the Constitution of India. the writ-petitioners have prayed for the following relief :-

"(1). That the Indian soldiers who had gone to fight for the cause of motherland at the war front in December. 1971 and during their course of the employment from their active duty they were arrested by the enemy and in spite of having the clear, clinching and solid evidence that 54 prisoners of war are in custody of Pakistan as POW and they are in the Pakistan jails. Action of Respondent Government vide letter dated 10th August, 1998 treating them presumed to be dead after 7 years may be quashed. The may be treated "on duty" 10 for all purposes from the date of arrest till the dale of retirement.

(2). IC 23148 Capt. K.H. Rathod at 5th Regiment and other 53 Prisoners of War may please be ordered to be treated as on duty for all purpose from the date of arrest till the date of 5 retirement. The respondent may be directed to treat them on duty and to pay full salary with all increments, promotion, D.A.. etc. with all other infringe benefits which are given to 10 their living colleagues.

(3). Their pension may be refixed on the salary which they ought to have drawn on the date of actual retirement.

(4). The legal heirs. their family members of the soldiers and the officers whose names are declared as the prisoners of war in the Parliament vide unstarred question No. 6803 dated 12.4.1978 may be paid appropriate compensation for pain, shock and sufferings which they have suffered for the last 27 years due to the gross negligence. carelessness of the Indian Government and the politicians from 1971 to 1998.

(5). The names of missing 223831 soldiers and officers may please be declared and all concerning record may please be produced by the Respondent before the Hon'ble Court.

(6). Copy of Tashkant agreement of 1965. Simla agreement and all correspondence regarding exchange of prisoners of war between India and Pakistan may please be ordered to be 4 produced by Respondent Government and copies of the same may please be supplied to the Petitioner No.5.

(7). Respondent Government may be directed to refer this matte,: of prisoners of war to International Human Rights Committee immediateiv for repatriation of the prisoners of war of 1965 and 1971 who are rotting in Pakistan Jails for the last 27 years. "

2. The case made out by the writ petitioners in this application may be epitomized thus :-

(a). The petitioner No.1 is a retired Lt. General of India. He is a Hero of 1971 Indo-Pakistan War. The petitioner No.2 is a retired Brigadier of the Indian Army. Petitioner No.3 is retired I Colonel of the Indian Army and is the president of Missing Defence Personnel and Relative Association. Petitioner No.4 is widowed mother and Petitioner No.5 is brother of Capt. K.B. Rathod who was working in Indian Army in 5th Assam Regiment In December 1971 lndo-Pak war.

(b). The writ-petitioners complain I that the action of the Ministry of Defence in treating Capt. K. H. Rathod as "presumed to be dead" without any cogent evidence is illegal inasmuch as there is ample evidence that Capt. K.B. 5 Rathod was taken as Prisoner of 'Var and has been detained in Pakistan Jail for the last 27 years.

(c) From 3rd December, 1971 till n 16th December, 1971 the Indo-Pakistan War continued. The Pakistani Army had surrendered before the Indian Army on December 16, 1971 at Dacca (Bangladesh) before the Petitioner No.1 when the Pakistani Gen. Ami Abdulla Niazi surrendered with 93000 Soldiers and a ceasefire was declared. The, Indian Army had captured 93000 Pakistani Soldiers and they were treated as Prisoners of War and brought from Dhacca to India.

(d) From the Kashmir Front, 2238 Indian Military Officers and the Soldiers were found missing. However, their dead bodies were not recovered. There is no evidence tha