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Judgment
Heard Shri S.M. Ali , learned counsel for the applicant and Shri Rishi Kumar, learned counsel for the respondents. .
The instant original application has been filed seeking following relief:
“A. To issue order or direction to quash the impugned order dated 28-11-2023 (A-1).
B. To issue order or direction to issue the family pension in favour of the applicant and arrears of family pension w.e.f. 04-10-2017 along with 18% interest from due date to actual payment date.
C. To pass order and direction to pass any such and other order as deem fit and proper in the facts and circumstances of the case.
D. Award the cost of the Petition in favour of the applicant.”
The brief facts of the case, as narrated in the Original Application, are that the applicant, a permanently physically disabled person having 60% disability due to post-polio residual paralysis affecting both lower limbs, is the son of a deceased Railway employee. His name was included in the Pension Payment Order dated 06.02.2015 among the eligible family members for family pension. After the death of his father on 20.12.2016 and mother on 03.10.2017, the applicant claimed family pension w.e.f. 04.10.2017. Despite medical certificates confirming his permanent disability, the respondents, vide impugned order dated 28.11.2023, rejected his claim on the ground that he was mentally agile and capable of earning his livelihood. Hence, the applicant has filed the present Original Application seeking quashing of the impugned order and grant of family pension along with arrears and interest at the rate of 18% per annum.
The respondents, in their Counter Affidavit, have stated that the applicant, being the son of the deceased Railway employee, was examined by a duly constituted Medical Board in accordance with Railway Board letters dated 25.01.2016 and 13.06.2019. The applicant was found to be suffering from post-polio paralysis of both lower limbs with 60% permanent physical disability. However, the Medical Board opined that although he was unable to earn his livelihood in the general category, he could earn his livelihood under the disability category with the approval of the competent authority. The respondents have further stated that, under Rule 75(6)(kha) of the Railway Services (Pension) Rules, 1993, family pension may be granted for life to a disabled dependent above the age of 25 years only if the competent authority is satisfied, on the basis of evidence from the competent medical authority, that the disability renders the dependent incapable of earning a livelihood. Since the Medical Board did not find the applicant completely incapable of earning his livelihood, the respondents contend that the applicant is not entitled to family pension and that no illegality or infirmity has been committed by the answering respondent warranting interference by this Tribunal.
The applicant, in his Rejoinder Affidavit, has denied the averments made in paragraphs 3 to 6 and 9 of the Counter Affidavit and reiterated the facts stated in the Original Application. He has submitted that his father retired from service on 31.12.2014 and had duly declared him as a permanently disabled and dependent son in the service records. His name was also recorded at Serial No. 3 in the PPO dated 06.02.2015 as a physically disabled son eligible for family pension. The applicant has contended that he has 60% permanent physical disability since birth due to post-polio residual paralysis of both lower limbs, which is supported by disability certificates dated 02.06.1990 and 17.09.2018 and the letter dated 11.11.2019 issued by the ACMS, Railway Hospital, Jhansi. After the death of his father on 20.12.2016 and his mother on 03.10.2017, he submitted a representation dated 04.12.2017 seeking family pension, but the respondents, instead of considering his existing eligibility under the PPO and Rule 75(6) of the Railway Services (Pension) Rules, 1993, treated his case as a fresh claim and passed the impugned order dated 28.11.2023, holding that he could earn his livelihood under the disability category. The applicant has alleged that the impugned order is illegal, discriminatory and contrary to the applicable rules and documentary evidence on record, and has prayed for the grant of family pension in accordance with the PPO dated 06.02.2015.
I have heard the learned counsel for both the parties.
The learned counsel for the applicant submitted that the applicant is a permanently physically disabled person having 60% disability due to post-polio residual paralysis affecting both lower limbs and is the son of the deceased Railway employee. It was contended that the applicant’s name was duly recorded in the Pension Payment Order dated 06.02.2015 as an eligible disabled dependent son and that, after the death of his father on 20.12.2016 and his mother on 03.10.2017, he became entitled to family pension w.e.f. 04.10.2017. Learned counsel further submitted that the applicant’s permanent disability is established by the medical certificates dated 02.06.1990 and 17.09.2018 and the letter dated 11.11.2019 issued by the ACMS, Railway Hospital, Jhansi, but the respondents, ignoring the relevant medical evidence and his existing inclusion in the PPO, illegally rejected his claim vide order dated 28.11.2023 on the ground that he could earn his livelihood under the disability category. Accordingly, learned counsel prayed that the impugned order be quashed and the respondents be directed to grant family pension to the applicant along with arrears and interest at the rate of 18% per annum.
Learned counsel for the applicant has placed reliance on the following documents:-
● Medical certificate (Annexure A-2) issued by the office of the C.M.O. Jhansi certifying that applicant is 60 percent handicap.
● Railway Privilege pass (Annexure A-3) issued by Central Railway on 31.12.2014
● Copy of PPO in respect of Kailash Narayan Dubey in which applicant name is also mentioned as physically disabled son.
● Railway Board letter no. F(E)III/2005/PN1/32 dated 24.06.2021
The learned counsel for the respondents submitted that the applicant, despite having 60% permanent physical disability, was found by the duly constituted Medical Board to be capable of earning his livelihood under the disability category with the approval of the competent authority. It was contended that, in view of Rule 75(6)(kha) of the Railway Services (Pension) Rules, 1993, the applicant is not entitled to family pension as he has not been found incapable of earning his livelihood. Accordingly, learned counsel submitted that the impugned order suffers from no illegality or infirmity and hence the instant OA may be dismissed.
I have considered the rival submissions and gone through the entire records.
It is pertinent to mention that Rule 75(6) of the Railway Services (Pension) Rules, 1993, has been superseded after the introduction of the Railway Services (Pension) Rules, 2026, and the corresponding provision is now contained in Rule 50(9)(h) of the 2026 Rules. Accordingly, the entitlement of a disabled dependent child to family pension is required to be examined with reference to the corresponding provision of the new Rules, subject to their applicability to the facts and circumstances of the present case.
Before discussing the submissions raised across the BAR, it will be useful to reproduce the relevant provisions of the Rule 50(9)(h) of the Railway Services (Pension) Rules, 2026. The same is reproduced as under:-
Rule50(9)(h): Where a deceased railway servant or pensioner is not survived by a son or daughter below the age of twentyfive years and eligible for family pension or where such son or daughter has died or has ceased to be eligible for family pension, the family pension shall be payable for life to a son or daughter who is suffering from any disorder or disability of mind including the mentally retarded or is physically disabled or suffering from any other disability referred to in the Rights of Persons with Disabilities Act, 2016 (49 of 2016) so as to render him or her unable to earn a living even after attaining the age of twenty-five years, subject to the following conditions, namely:-
(i)the disability existed before the death of the railway servant or pensioner and his or her spouse;
(ii)if such son or daughter is one among two or more children of the railway servant, the family pension shall be initially payable to the children below the age of twenty-five years in the order set out in clause (d) until the last child attains the age of twenty-five and thereafter the family pension shall be resumed in favour of the son or daughter suffering from a disability referred to in clause (h) and shall be payable to him or her, for life; (iii) if there are more than one such children suffering from a disability referred to in clause (e), the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible or dies:
Similarly, it will also be useful to reproduce the impugned order dated 28.11.2023 (Annexure A-1) vide which applicant's claim for family pension has been rejected. The same is as under:-
उत्तर मध्य रेल कार्यालय मुख्य कारखाना प्रबंधक झाँसी
पत्रांक: के-826/अ.भु.परि.पेंशन/विकलांगता/2022 दिनांक: 28.11.2023
श्री देवेंद्र दुबे पुत्र स्व. श्री कैलाश नारायण निवासी-195, प्रताप पुरा, नगर, झाँसी - 284003 (उ0प्र0) मो0न0-9598202341
विषय: परिवार पेंशन के सम्बन्ध में।
संदर्भ:
1.मु.चि.अधी. झाँसी का पत्रांक- JHS/H/MC.16/DD dated 04/08.11.2023
2.आपका आवेदन दिनांक 03.06.2019
उपरोक्त विषय एवं संदर्भित पत्र क्रमांक 2 के क्रम में आपके द्वारा प्रस्तुत परिवार पेंशन प्रकरण में चिकित्सा परीक्षण कर प्रमाण पत्र जारी करने हेतु कि आप विकलांगता के कारण अपनी जीविकोपार्जन करने में सक्षम हैं अथवा नहीं, से संबंधित पत्र मुख्य चिकित्सा अधीक्षक, झाँसी को प्रेषित किया गया था। आपके प्रकरण में संदर्भित पत्र क्रमांक 1 के माध्यम से अवगत कराया गया है कि— "The committee opined that patient is a case of Post Polio Residual Paralysis Both lower limb but he mentally agite. He is having permanent physically disability of 60%. He is not able to earn his livelihood in General category, but he is able to earn his livelihood in disable category."
अतः इस संबंध में आपको सूचित किया जाता है कि मुख्य चिकित्सा अधीक्षक, झाँसी द्वारा दी गई टिप्पणी के अनुसार आपको विकलांगता की श्रेणी में आजीविका कमाने में सक्षम होने के आधार पर परिवार पेंशन देय नहीं है।
संलग्न: संदर्भित पत्र की छायाप्रति।
वरिष्ठ कार्मिक अधिकारी, कृते मुख्य कारखाना प्रबंधक, झाँसी।
प्रतिलिपि: रेलवे पेंशनर्स एसोसिएशन पेंशनर्स भवन-829, प्रेमगंज, सीपरी बाजार, झाँसी (उ०प्र०)-284003—आपके पत्र दिनांक 22.11.2023 के संबंध में सूचनार्थ।
A similar issue came up for consideration before this Bench in O.A. No. 1008/2022 (Prem Narayan vs. Union of India and Others), wherein the following directions were issued:
Since the applicant's disability to the extent of 80% has not been disputed by the medical officers of the Railway Department before whom the applicant was subsequently examined by the respondents, the mere observation recorded in the medical report that the applicant is capable of earning his livelihood despite such disability cannot, by itself, be treated as sufficient to deny him consideration for family pension, particularly when his disability has otherwise been duly established. If the aforesaid facts are considered in the light of the submissions advanced by learned counsel for the parties and the ratio laid down in the judgments relied upon by the applicant, I am of the considered view that the impugned order passed by the respondents cannot be sustained in law. The judgment of the Hon'ble Delhi High Court in Om Prakash vs. The Ministry of Indian Railway (supra) also supports the view that a disabled dependent child, who is unable to maintain himself, is entitled to consideration for the benefit of family pension in accordance with the applicable rules. Accordingly, the OA is allowed. The impugned order dated 31.05.2022 is hereby quashed and set aside. The respondents are directed to reconsider the case of the applicant for inclusion of his name in Form No. 06 and thereafter pass a reasoned and speaking order, in accordance with Rule 50 of the Railway Services (Pension) Rules, 2026, within a period of three months from the date of receipt of a certified copy of this order. There shall be no order as to costs.
Considering the entire facts and circumstances of the case, it is evident from the record that the applicant is suffering from 60% permanent physical disability due to post-polio residual paralysis affecting both lower limbs, and his name was duly recorded in the Pension Payment Order dated 06.02.2015 as a physically disabled son of the deceased Railway employee. As per Rule 50(9)(h) of the Railway Services (Pension) Rules, 2026, family pension is payable for life to a disabled son or daughter who, owing to the disability, is unable to earn a livelihood even after attaining the age of twenty-five years, subject to fulfilment of the prescribed conditions. The applicant’s disability existed during the lifetime of his parents, and the Medical Board itself acknowledged that he was unable to earn his livelihood in the general category. The mere observation that he could earn his livelihood under the disability category, without establishing his actual capacity to earn a livelihood, cannot be a sufficient ground to deny the benefit of family pension. Therefore, the impugned order dated 28.11.2023 is unsustainable and is liable to be set aside.
In view of the aforesaid discussions, the Original Application is allowed. The impugned order dated 28.11.2023 is hereby quashed and set aside. The respondents are directed to consider and sanction family pension to the applicant with effect from 04.10.2017, in accordance with Rule 50(9)(h) of the Railway Services (Pension) Rules, 2026, subject to fulfilment of the conditions prescribed therein and also to release the admissible consequential benefits.The aforesaid exercise shall be completed within a period of three months from the date of receipt of certified copy of this order. There shall be no order as to costs. All associated MAs also stand disposed of.