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Judgment
Heard Shri Chandra Prakash, learned counsel for the applicant and Shri Raj Pal Singh, learned counsel for the respondents.
The present Original Application has been filed by the applicants seeking the following reliefs:
(i)This Hon’ble Tribunal may kindly be pleased to set aside the order dated 31-05-2022 passed by the respondent no. 2.
(ii)This Hon’ble Tribunal may kindly be pleased to direct the respondent no. 2 to consider the claim of the applicant with regard to family pension as well as arrears after sad demise of late Ram Charan, Ex. Boiler Maker, Loco Shed, Jhansi, who served and retired from the office of respondent no. 2 and to pass appropriate order on it.
(iii)That any other order or direction which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.
(iv)To award the cost of the application.
The brief facts of the case, as narrated in the OA, are that the applicant claims to be the son of late Shri Ram Charan, who was working under the respondents’ department and retired from service on 30.06.1986 on attaining the age of superannuation. The applicant also claims to be a person with physical disability and, therefore, seeks grant of family pension. It is the case of the applicant that his mother died in the year 2016 and, being a person with physical disability, he became an orphan thereafter. It is further the case of the applicant that a competent medical authority issued a disability certificate certifying 80% disability. However, the respondents, vide the impugned orders, denied the benefit of family pension on the basis of a subsequent medical examination, observing that despite his disability, the applicant was capable of earning his livelihood. The applicant has pleaded that the observations recorded by the competent authority in the impugned orders are illegal and contrary to the facts, as during the lifetime of his parents, they were receiving pension and were looking after the applicant; therefore, there was no occasion for him to seek family pension during their lifetime. The applicant has annexed the service certificate of his father as Annexure No. A-2, the Pension Payment Authority in respect of his father as Annexure No. A-3, the death certificate of his mother as Annexure No. A-4, the disability certificate issued by the competent medical authority, Jhansi, Uttar Pradesh, as Annexure No. A-5, the identity card issued by the Railways in favour of the applicant, along with the representation submitted by him before the competent authority.
By way of filing a counter affidavit, the respondents have controverted the averments made in the OA and have pleaded that the applicant is not entitled to the family pension, as the competent Medical Board has categorically recorded in its report that, despite his disability, the applicant is capable of earning his livelihood. It is further the case of the respondents that the applicant approached the competent authority after an inordinate delay. If the applicant was suffering from disability and had no independent source of income, he ought to have approached the competent authority for grant of family pension immediately after the death of his mother. It has also been pleaded that, since the competent Medical Board, upon examination of the applicant, has issued a certificate recording that he is capable of earning his livelihood despite his disability, the claim made in the OA is not liable to be accepted. The respondents have also placed on record Annexure No. CA-1, i.e. the certificate issued by ACMS/JHS; Annexure No. CA-2, i.e. the letter issued by the concerned authority to the applicant; and the letter dated 13.06.2019 issued by the Deputy Director (Finance), Railway Board, along with the Office Memorandum dated 27.01.2016.
A rejoinder affidavit has also been filed on behalf of the applicant, wherein the averments made in the counter affidavit have been refuted and the submissions made in the OA have been reiterated. No new ground has been raised in the rejoinder affidavit.
I have heard the learned counsel for the parties.
The submission of learned counsel for the applicant is that the applicant’s disability is duly established from the reports of the competent medical authority and that the certificate issued by the Railway Medical Board also does not negate the disability of the applicant. It merely records an observation that the applicant is capable of earning his livelihood despite his disability. Referring to the documents available on record, learned counsel for the applicant argued that the observations recorded by the respondents in the impugned orders are not sustainable in law. Learned counsel further submitted that a similar issue came up for consideration before the Hon’ble Delhi High Court in Om Prakash vs. The Ministry of Indian Railway, 149 (2008) DLT 599, decided on 26.03.2008, wherein the respondents were directed to consider the claim for family pension, subject to the applicant otherwise fulfilling the prescribed conditions. It was further submitted that a similar issue was also considered by this Bench in OA No. 1009/2012, Ashok vs. Union of India & Others, decided on 19.05.2026, wherein the respondents were directed to ignore the subsequent observation recorded in the medical certificate and to grant family pension to the applicant concerned. On the strength of the aforesaid judgments, learned counsel for the applicant prayed that the impugned orders be set aside and the respondents be directed to grant family pension to the applicant.
Learned counsel for the respondents argued that family pension can be granted only where the person concerned, despite suffering from disability, is unable to earn his livelihood. Since the competent authority, on the basis of the medical examination, has specifically recorded in the impugned order that the applicant is capable of earning his livelihood despite his disability, there is neither any illegality nor perversity in the impugned order. Accordingly, learned counsel for the respondents submitted that the claim of the applicant is devoid of merit and the OA is liable to be dismissed.
I have considered the rival submissions and gone through the entire records.
For ready reference, it is pertinent to reproduce the impugned order passed by the respondents. The same is as below:-
पेंशन अदालत जून 2022 प्रकरण संख्या-68
उत्तर मध्य रेल कार्यालय मंडल रेल प्रबंधक (कार्मिक) झाँसी दिनांक-31.05.2022
पत्र सं पी/ईएसएम-5/आर-94/34/341
श्री प्रेम नारायण पुत्र स्व० रामचरण, म०न०-306, नैना गढ़ नगरा, झाँसी, जिला-झाँसी (उ०प्र०) पिन-284003
विषय:- स्व० श्री रामचरण पुत्र स्व० भू०, पूर्व गैंगमैन रेलवे / लोको पायलट / झाँसी से दिनांक-30.06.1986 एवं मृत्यु दिनांक 15.11.1995 के विधिवत विवाहित पुत्र के रूप में आपके द्वारा पारिवारिक पेंशन भुगतान की मांग किये जाने के संबंध में।
***
उपरोक्त विषय में आपके द्वारा भेजे गये पेंशन अदालत आवेदन पत्र के संबंध में विदित कराना है कि इस संबंध में आपको आपके द्वारा भेजे गये आवेदन पत्रों के बाबत इस कार्यालय के समसंख्यक पत्र दिनांक-20.04.2022 (प्रति संलग्न) के माध्यम से अवगत कराया गया था। फिर भी सूचित किया जाता है कि प्रावधान के अनुसार आपके प्रकरण में चिकित्सा परीक्षण कराया गया था जिसमें संबंधित चिकित्सा अधिकारी, रेलवे झाँसी द्वारा प्रमाणित किया गया है कि आप विकलांगता कोटि के अन्तर्गत अपनी जीविका अर्जित करने में सक्षम हैं, जिस कारण आपका परिवार पेंशन प्रकरण बन्द किया गया है।
अतः आपके प्रकरण में अन्य कोई कार्यवाही अपेक्षित नहीं है।
सूचनार्थ प्रेषित।
संलग्न-उपरोक्तानुसार 01
कृते मंडल रेल प्रबंधक (का) उमरे / झाँसी
Before discussing the submissions raised across the BAR, it will be useful to quote the relevant paras of the judgment passed in OA 1009/2022 by this Bench. The same is as under:-
8.Learned counsel for the applicant has relied upon the judgment of Hon'ble High Court of Delhi in the case of Om Prakash Vs. The Ministry of Indian Railway in WP (C) No.6604 of 2006 decided on 26.03.2008. The relevant part of the aforesaid judgment is reproduced as below :-
“4.It is asserted by the petitioner that he is 55% physically handicapped and he is fully dependant on his elder brother after the demise of his father. It is contended that during the lifetime of his father also he was dependent upon him and he is unable to earn his living. The petitioner has produced the disability certificate issued by All India Institute of Medical Sciences certifying that he has 55% disability of both lower limbs. Petitioner pleaded that though he is 10th Class pass but he could not continue due to illness as he had T.B of hip joints and he became physically handicapped of both lower limbs. He is stated to be unable to do any kind of physical job and was always dependant on his father who was an employee of respondent Railways. The petitioner has also produced the old record pertaining to his illness, T.B of hip joints making him disabled.
7.The Petitioner contended that under the relevant rule the family pension of the father of the petitioner is to continue in the name of the petitioner as he is a disabled son of the retired employee with permanent disability and is unable to earn his livelihood and, therefore, he sent representations to the respondents dated 3rd April, 2001, 14th September, 2002 and 1st November, 2002 for grant of family pension to the petitioner after the death of his father on 25th December, 2000. On the representations made by the petitioner it was communicated to the petitioner by communication dated 4th October, 2002 that at the time of retirement, petitioner’s father did not give in writing intimation about disability of petitioner though the disability certificate is dated 28th April, 1997. It was also communicated to the petitioner to submit all the relevant papers in compliance of letter dated 15th May, 2002.
10.The respondent has contested the petition on the ground that the physically handicap certificate dated 28th April, 1997 certifying that the petitioner is 55% handicap does not state that the petitioner is unable to earn his livelihood. It is also alleged that the father of the petitioner in the statement showing the details of the members of the family for the purpose of Family Pension Scheme, 1964 had not stipulated the disability of the petitioner. A copy of the form No.6 has been produced by the respondent which is the statement showing the details of the members of the family for purpose of Family Pension Scheme,1964 which is dated 9th May, 1987. According to the respondent the physical disability of the petitioner is after the retirement of his father on 30th June, 1987. Relying on the explanation 1 of Rule 75(6) it is contended that the petitioner is not eligible for family pension and the petitioner was intimated by letter dated 18th November,2002 that he is not entitled for the family pension.
11.The petitioner has refuted the allegations made by the respondents and contended that the explanation 1 to Rule 75(6) contemplating that only that disability which manifests itself before the retirement or death of the Railway servant while in service shall be taken into account for the purpose of grant of family pension under this sub Rule, was deleted vide notification No.F(E) III/94/PN-1/31 dated 3 rd February, 1995 and therefore, the respondent cannot contend that he is not entitled for family pension. The petitioner reiterated that he is entitled for family pension.
I have perused the petition, reply and the documents filed by the parties and have heard the learned counsel for the parties at length. This is not disputed that the father of the petitioner was a Railway employee who retired after a long service from 2nd May, 1949 to 30th June, 1987. This also cannot be disputed that the name of the petitioner was mentioned in Form 6 which is the statement showing the details of the members of the family for the purpose of Family Pension Scheme, 1964 which is dated 9th May, 1987. The respondents in their letter dated 4th October, 2002 denied the family pension on the ground that the petitioner has not sent the relevant documents and since the father of the petitioner had not given any information in writing about the physical disability of the petitioner and as the certificate is dated 28th April, 1997 the petitioner is not entitled for the family pension. By said communication dated 4th October, 2002 the petitioner was, however, asked to comply with the requirement demanded by letter dated 15th May, 2002. The copy of the letter dated 15th May, 2002 has not been produced either by the petitioner or by the respondents. The case of the petitioner is that he had submitted all the documents demanded by the respondents from time to time which fact has not been denied by the respondents. The family pension to the petitioner has been declined by letter dated 18th November, 2002 on the ground that the physical disability of the petitioner was acquired by him after the retirement of his father on 30th June, 1987. However in the reply filed to the writ petition it is also alleged that no certificate from a medical officer not below the rank of a Divisional Medical Officer of the Railways about the exact mental and physical condition had been submitted. It is pertinent to notice that by communication dated 18th November, 2002 the claim of the petitioner was rejected solely on the ground that under the Railway Services (Pension) Act, 1993 Chapter VI Rule 75 Explanation 1, the nominees for family pension could only be those nominees who are mentioned by the Railways employees at the time of retirement or before death during the course of the employment whereas in Form 6 submitted by the father of the petitioner at the time of retirement it had not been mentioned that the petitioner was disable. The respondents thus have rejected the case of the petitioner only on the ground that in terms of explanation to sub Rule 6 of Rule 75, since the petitioner did not acquire the disability before the retirement or the death of the Railway servant while in service, therefore, the petitioner is not entitled for the family pension.
In view of the facts and circumstances of the case, this Tribunal finds that the applicant is suffering from 70% disability due to Post Polio Residual Paralysis of both lower limbs and was dependent upon his deceased father during his lifetime. Merely because the medical board opined that the applicant may earn livelihood in the disability category cannot be a ground to deny inclusion of his name in Form No. 06, particularly when there is no evidence on record to show that he is actually employed or capable of maintaining himself independently. The judgment of the Hon’ble Delhi High Court in the case of Om Prakash Vs. The Ministry of Indian Railway also supports the view that a disabled dependent child who is unable to maintain himself is entitled to consideration for family pension benefits. Accordingly, the OA is allowed. The impugned order dated 04.08.2022 is 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 pass a reasoned and speaking order in accordance with Rule 75(6) of the Railway Services (Pension) Rules, 1993. No order as to costs.
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 8 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.
All associated MAs also stand disposed of.