Calcutta High Court (Appellete Side)
Kumari Sadhana Bera vs Union Of India And Ors on 7 May, 2026
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
RESERVED ON: 16.04.2026
DELIVERED ON: 07.05.2026
PRESENT:
THE HON'BLE MR. JUSTICE TAPABRATA CHAKRABORTY
AND
THE HON'BLE MR. JUSTICE REETOBROTO KUMAR MITRA
MAT 2332 OF 2023
WITH
IA NO. CAN 1 OF 2023
KUMARI SADHANA BERA
- VERSUS -
UNION OF INDIA AND ORS.
Appearance:
Mr. Ramdulal Manna, Adv.
Mrs. Manju Manna (Dey), Adv.
Mr. Sabyasachi Mandal, Adv.
Mr. Sayan Mukherjee, Adv.
.... For the Applicant/Petitioner
Mr. Ashoke Kumar Chakraborty, Ld. A.S.G.I.,
Mr. Sukumar Bhattacharyya, Adv.
Mr. Tirthapati Acharya, Adv.
... For the Union of India
REPORTABLE
Reetobroto Kumar Mitra, J.:
1. The present appeal arises out of an order passed by a learned Single Judge of
this Hon’ble Court on October 4, 2023, refusing the prayer of the appellant for
grant of pension of her late father, a freedom fighter under the Freedom
Fighter’s Pension Scheme, 1972 which was later modified as Swatantrata Sainik
Samman Pension Scheme, 1980.
2. The facts leading to the present appeal are brief and not in dispute:
i. The father of the appellant, Krishna Pada Bera, had participated in
the Quit India Movement in 1942 and had been imprisoned for a
period of 6 months for such participation.
ii. After independence, the Freedom Fighter’s Pension Scheme, 1972
was promulgated and the said Krishna Pada Bera applied and was
granted pension of Rs. 150/- per month which was later enhanced to
Rs. 200/- per month on February 18, 1996. Krishna Pada Bera
passed away leaving behind several sons and daughters.
iii. The appellant filed an application for grant of pension with the
authorities sometime in 2007 after the expiry of 11 years from the
date of death of Krishna Pada Bera. She alone was entitled to the
pension, being an unmarried daughter, dependant on her father.
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iv. Between June and July 2007, the appellant had made multiple
representations, which were not considered. This prompted the
appellant to file a writ petition being WPA No. 2991 of 2009.
v. The said writ petition was disposed of, directing the authorities
concerned to consider the case of the appellant on the basis of her
representation, within a period of six months. The said
representation was considered and rejected on August 7, 2012.
vi. The appellant made a fresh representation on December 13, 2016,
which was considered and rejected on January 9, 2017, in line with
the rejection of August 7, 2012. The rejections were not challenged
by the appellant and it was only after a lapse of more than 5 years
from the second rejection, that the petitioner approached this
Hon’ble Court with a second writ petition being WPA No. 19043 of
2023.
vii. This writ petition was dismissed by the impugned order of October
4, 2023, which is assailed before us.
3. Mr. Ramdulal Manna, learned advocate appearing for the appellant, has raised
the following issues:
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a. The appellant is entitled to the pension which was being paid to her
father till his death in 1996. The appellant being the only unmarried
daughter is entitled to such pension.
b. There was no time constraint for making an application for pension
in the original scheme of 1972 or in the modified scheme of 1981.
c. Timelines were introduced only in 2014, vide office memorandum
45/03/2014-FF(P) dated August 6, 2014.
d. The pension scheme being a beneficial legislation cannot be
constricted by introduction of definite timelines. Hence this portion
of the modified scheme of 2014 is bad in law and liable to be set
aside.
e. He has placed reliance on several decisions, enumerated as under:
Alaka Bera @ Aloka Bera vs. Union of India and Ors., WPA 7071
of 2023; Kanchan Barman vs. Union of India and Others, WPA
14008 of 2023; to establish that similarly situated persons have been
granted pension regardless of constraints, and there is no reason
why the appellant herein should be treated in a discriminatory
manner as compared to Alaka Bera (supra) and Kanchan Barman
(supra).
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4. Mr. Ashoke Kumar Chakraborty, learned Additional Solicitor General of India,
has raised the following issues:
i. The scheme of 1972 and its subsequent modifications are schemes
not framed under Article 309(A) of the Constitution of India and
therefore do not have the force of a statute.
ii. Though these schemes are all benevolent in nature, the benchmark
parameters set forth in such schemes and their subsequent
modifications have to be strictly adhered to, as any infraction
therefrom would result in ineligible persons taking advantage of and
getting benefits of such schemes.
iii. The applications made by the appellant are squarely barred by
limitation. Even though the strict timelines of limitation as
prescribed under the Limitation Act, 1963 may not be applicable, as
reiterated by the Hon’ble Supreme Court of India and as held by all
High Courts, any monetary claim has to be made within a period of
3 years and any infraction of such timeline has to be well explained.
iv. Thus, even if it is considered that there can be no timelines in
beneficial legislations, that delay has to be explained. The appellant
herein has not given any explanation of the delay caused in making
the application for pension by her.
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v. In support of his submissions, he has relied upon the following
decisions of the Hon’ble Supreme Court of India and of this
Hon’ble Court:
a. AIR 1964 SC 1006,
b. 2021 4 SCC 535,
c. 2022 5 SCC 731 and
d. 2017 4 WBLR (Cal) 491.
5. We have heard the learned advocates appearing for the parties at length and
perused the records as well as considered the judgements relied upon by the
parties.
6. It is not in dispute that the legislation with which we are presently concerned is a
benevolent legislation. It was promulgated with the idea and purpose of the
nation showing gratitude for those people who had fought for and obtained the
freedom of this great nation.
7. It was as a mark of honour and gratitude for such freedom fighters that it was
decided that a lifetime pension would be granted to all those freedom fighters
who had sacrificed a substantial period of their lives or had suffered ignominy in
the hand of the foreign rulers. There were certain parameters set forth, as to
who and how they would be entitled to obtain such pension. This was the
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scheme framed in 1972 called the Freedom Fighters’ Pension Scheme, which
commenced on August 15, 1972.
8. Over a period of time, certain amendments and modifications were made to
such scheme, starting from 1981, 1990, 1992 and 2014. There was an office
memo on February 2017 which was more in the nature of a guideline to the
concerned banks as to why and under what circumstances and the manner to
release pension.
9. It is also not in doubt that prior to 2014 there were no timelines fixed for
making the application.
10. Over a period of time the portals of the scheme were enlarged to extend the
pensionary benefits of the freedom fighter to their unmarried and widowed
daughters.
11. The 2014 guideline for disbursement of the pension specified that the transfer
of pension to spouse or the daughter had to be made within a period of six
months from the date of death of the freedom fighter. It was also specified that
application received after six months shall not be considered by the bank but be
referred to the Ministry. The Ministry would take a view whether the dependent
or not or whether any arrears are to be paid. It was also specified that the
application made by the daughter would be treated as a fresh application and
not a continuation of the pension given to the freedom fighter.
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12. To overcome the disparity contained in the guidelines of 2014, a
communication was made on February 23, 2017 by the Deputy Secretary of the
Government of India vide his office memo dated December 30, 2015. This
merely clarified that the uniform income ceiling would be applicable to all
persons whether holding a public office or a private job.
13. Upon perusal of the scheme of 1972 and the scheme of 1981 and the
amendments thereto, the following conditions appear to be a sine qua non to
enable widow/unmarried daughter of a freedom fighter to obtain the pension:
a. The daughter has to be unmarried with no source of income.
b. She has to apply within six months from the date of death of the
freedom fighter.
c. A declaration that she is not employed nor receiving pension from
any other sources.
d. If employed, she is not earning in excess of Rs. 20,000/- per month.
14. The issue raised by the appellant as to the definition or meaning of the term
“otherwise eligible” is that such heir of the freedom fighter qualifies as an
eligible candidate for grant of pension in terms of the parameters set forth in the
scheme and the subsequent guidelines thereto. These parameters as set forth
hereinbefore are clear and unequivocal. The appellant, having waited for a
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period of 11 years at the first instance to apply and thereafter for a period of a
further 11 years to approach this Hon’ble Court, upon rejection of a
representation in 2012, is clearly not eligible under any circumstances.
15. These are not alternative conditions but conditions which have to be fulfilled by
the applicant in aggregate. All conditions are to be met by the applicant to entitle
her to get the pension which was being paid to the freedom fighter.
16. The applicant had made an application for pension for the first time only in
June 2007, more than 11 years after the death of her father, the freedom fighter,
Krishna Pada Bera, on February 18, 1996. This application was immediately
sent to the concerned Ministry of Home Affairs with a request to take a decision
in the matter.
17. Since the concerned ministry had not acted, the writ petition WPA No. 2991 of
2009 was disposed of by directing the government to decide the appellant’s
claim and her right to get pension in terms of such order. By an order of August
6, 2012, the said application was rejected primarily on the ground of long lapses
of time, as well as the fact that she was gainfully employed between 1979 and
2007.
18. These findings in the order of rejection dated August 6, 2012 were never
challenged. In fact a second representation on the very same lines was made
before the same authority, in December 2016, which was also rejected in line
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with the earlier rejection of August 2012. Thus, the findings on the basis of
which the rejection was made have attained finality and have now become
binding on the appellant.
19. It was only thereafter on August 6, 2014 that a fresh set of modifications were
introduced which contained stricter guidelines regarding the transfer (within six
months from the date of death of the pensioner) along with other benchmark
parameters as contained in Clause 6.1.2.
20. The appellant has argued that the honorarium that she received from her place
of employment from 1979 to 2007 was a meagre Rs. 7000/- while clause (ii) of
6.1.2 of 2014 amendment set a benchmark quantum of Rs. 20,000/- per month
thus not having the requisite income of Rs. 20,000/- per month, the appellant is
entitled to obtain the pension.
21. This issue has been clarified in the office memorandum bearing no. F No.
45/03/2014-FF(P) dated February 23, 2017. It relates to the disbursement of the
arrears which had been stopped to the spouse/daughter, provided they gave
requisite undertaking. Thus, a person getting pension prior to 2017, whose
pension had been stopped on the ground that she was drawing a sum less than
Rs. 20,000/- a month would be rejuvenated. It did not give a fresh right to an
applicant, who had otherwise not been granted pension. Thus, the appellant
would not be covered under this clause.
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22. Even if pension was to be construed as a right, it is not an unbridled right, but
one which comes with some amount of restrictions or qualifications. Timelines
do not constrict a right but merely discipline the mode and manner of applying
for such right.
23. The appellant has to explain at least three sets of timelines.
24. First the period of 11 years from the date of death of the father in 1996 till she
made the first application for pension in 2007.
25. Second the rejection of the representation of 2007 and 2012, which was never
challenged.
26. Third from 2012 till 2023 when she made the second writ petition.
27. There is no explanation to the first default between 1996 and 2007. Ostensibly
she was in service during the period and retired in 2007, whereupon she
immediately made a representation to obtain the pension on the ground that she
was unmarried and dependent on her father.
28. The rejection of 2012 had not been challenged, but a reiteration of such
representation was made in December 2016 which was rejected a second time
by the same authority in line with the earlier rejection in 2012. Even the second
rejection was never challenged by the appellant. There is no explanation to this
indifferent approach either.
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29. The third limb of delay, even if we were to assume that the representation was
rejected in 2017, stems therefrom till the filing of the writ petition in 2023, for a
period of more than 6 years. There is absolutely no explanation to this timeline
either.
30. The writ petition does not challenge any of the clauses in the 1972 scheme or
the scheme modifications thereafter of 1981 or 1992 or the amendments of
2014. There is no pleading challenging such scheme or its amendments and is
clearly a reiteration of her claim for pension on a very basic ground.
31. The decision relied upon by Mr. Manna, primarily on Alaka Bera (supra) and
Kanchan Barman (supra) were on a completely different issues. The issues
concerned therein related to the date of application made by the petitioner. The
said issues were far more restricted as the petitioner stood on a better footing
than the appellant herein.
32. The decision relied upon by Mr. Chakraborty, Ld. A.S.G.I., for the Union of
India is clear and unambiguous that a monetary claim made in a writ petition,
even if there is no specified timeline, will have to be explained if it has been
made beyond a period of 3 years. In fact the decision relied upon by him
reported in 2017 4 WBLR (Cal) 491 of the co-ordinate bench is clear.
33. The question of whether the petitioner was receiving an honorarium equivalent
to Rs. 20,000/- per month or not could be considered only if the appellant
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overcame the threshold hurdle for her application, relating to timelines. The
appellant was unable to overcome such hurdle as there was no explanation for
any of the three delayed timelines, as discussed herein before.
34. We thus hold that the appellant is not entitled to the pensionary benefits which
were given to her father under the scheme of 1972 and 1980 in view of the
following findings:
a. On the date of death of the father on February 18, 1996, the
appellant was not a dependent as she was regularly employed and
was drawing a salary.
b. There is no explanation to any of the delayed timelines especially as
to how from 1996 till 2007 she had not applied.
c. Not having challenged the rejection dated August 6, 2012 of her
representation, she cannot challenge the grounds of rejection,
presently, as the same has attained finality.
d. She has not challenged the rejection made on January 9, 2017,
which has also attained finality.
e. She has not challenged the scheme or its amendments in the writ
petition and will have to abide by the same to be qualified for grant
of pension. Particularly, the fact that she has not given any
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REPORTABLEexplanation for the delay in pursuing her remedies. Thus, the
appellant was unable to cross the threshold parameter of stipulated
timelines in the scheme and the guidelines.
f. Since she has not crossed any of the hurdles as stipulated in the
scheme and amendments thereto, she is not entitled to any pension
under the Scheme of 1980.
35. In view of the aforesaid findings which have been sufficiently dealt with by the
learned single Judge, we do not find any reason to interfere with the impugned
judgement and order of October 4, 2023.
36. Appeal and pending applications, if any, are dismissed. There shall be no order
as to costs.
37. Urgent photostat certified copy of this order, if applied for, be furnished to the
parties expeditiously upon compliance of all legal formalities.
(Reetobroto Kumar Mitra, J.) (Tapabrata Chakraborty, J.)
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