Denesan, J.

When this writ appeal came up for admission before the Division Bench, it was submitted by the appellant's counsel that in view of the decision of the Supreme Court in Union of India & Others v. Manohar Lal Azad & Another (Civil Appeal No.6210 of 2000), the decision of this Court in Union of India v. Lonan Benjamin (2002 (1) KLT 46 (DB)) was not correct. The Bench presided over by Srikrishna,C.J. as His Lordship then was, felt that the matter be heard by a Full Bench and passed the order of reference which reads:

"Appeal admitted. Respondents waive service through learned counsel. A Division Bench of this Court in Union of India v. Lonan Benjamin, 2002 (1) KLT 46 has taken the view that the expression "minimum imprisonment of six months" used in paragraph 4(a) of the Freedom Fighters Pension Scheme, despite the explanation attached to Paragraph 4(a), would be fulfilled if the under trial imprisonment period is more than six months even in a case not ending in conviction. Learned counsel for the Union of India brought to our notice the judgment of the Supreme Court in C.A.No.6210 of 2000 decided on November 2,2000 (per Justice Syed Shah Mohammed Quadri and Justice S.N.Phukan) which seems to suggest that it is not open to the Court to change the eligibility criterion by reading something into a criterion which was not there. Since there is already a Division Bench Judgment holding the field, it is therefore necessary that the matter be heard by a Full Bench so as to give a quietus to the controversy. Pending further hearing of the appeal, there shall be an interim stay of the Judgment of the learned Single Judge."

2. Union of India is the appellant. Respondents 2 to 9 are the legal heirs of respondent No.1, Peter Devassia who filed O.P.No.12091 praying, among other, to quash the order of the Central Government rejecting his application for the grant of the freedom fighters' pension. Writ petitioner was detained in prison for nine months as an under trial prisoner in connection with "Punnapra Vayalar Struggle" recognised as freedom struggle. That trial ended in the acquittal and discharge of the writ petitioner. Learned single Judge allowed the O.P. by judgment dated 17.8.2001 holding that the petitioner was a freedom fighter coming within the purview of the relevant scheme. On 14.10.2001, the writ petitioner passed away, and therefore his wife and children have come on record in this appeal.

3. The point arising for consideration before us is whether detention of a person as under trial prisoner for participation in the freedom struggle gives him the right for freedom fighters' pension under the schemes even if the trial did not end in conviction. Both sides agree, and in our view rightly, that the answer to the above question has to be found out within the frame work of the relevant scheme. Hence a brief reference to that scheme.

4. During Twenty Fifth Anniversary (Silver Jubilee Year) of Independence, a Central Scheme for the grant of pension to freedom fighters and their families from Central Revenues was introduced by the Government of India. The Scheme commenced from 15th August, 1972 and provided for the grant of pension to living freedom fighters and their families if they are no more alive, and to the families, of martyrs. From 1.8.1980, the benefit of the said Scheme called Swatantrata Sainik Samman Pension Scheme (for short the scheme only) has been extended to all freedom fighters as a token of SAMMAN to them.

5. Clause 4 of the scheme says that for the purpose of grant of Samman pension a freedom fighter is:

(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India.

(b) The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1980.

EXP