Vasim Khan vs Union Of India & Ors.

Heard Shri M.R. Gupta , learned counsel for the applicant and Ms. Seema Srivastava, learned counsel for the respondents.

The instant original application has been filed seeking following relief:

The brief facts of the case as narrated in the OA are that the applicant’s father, namely Sakbar Khan, was working as a Gangman in the Railway Department at Faridabad and died in harness in the year 2002, leaving behind his wife, Imaman Khatun, the applicant and a daughter, Gulaksha. Thereafter, the applicant’s mother was appointed under the Dying in Harness Rules, but she also died in harness on 01.03.2005. Subsequently, the applicant’s sister, Gulaksha, was appointed in place of their mother under the said Rules in the year 2017. The applicant, being a person with disability, was granted disability family pension up to the age of 25 years, which was stopped in October 2017. The applicant thereafter submitted representations dated 17.11.2022 and 12.08.2024 seeking restoration of the disability family pension, relying upon the applicable provisions relating to family pension for a disabled child. However, the competent authority, vide order dated 22.08.2024, rejected his representation on the ground that he was capable of earning his livelihood despite his disability. Aggrieved by the said order, the applicant has filed the instant OA.

The respondents, in their counter affidavit, have submitted that the applicant’s mother, Imaman Khatoon, had been appointed on compassionate grounds and, after her death on 01.03.2005, family pension was sanctioned in favour of her minor son and daughter through their guardian. Subsequently, on 27.07.2018, the applicant and his sister jointly requested restoration of the family pension in favour of the applicant, who is a person with disability, as the pension had been stopped from October 2017. Pursuant thereto, an inquiry was conducted and, in terms of the Railway Board’s policy dated 24.08.2021, the applicant was medically examined by the Chief Medical Officer, Jhansi. On the basis of the medical examination report, the respondents found that the applicant, despite his disability, was capable of earning his livelihood and, therefore, was not entitled to family pension. The applicant was accordingly informed of the decision vide letter dated 13.12.2021, and his subsequent representations/applications were also replied to vide communications dated 17.03.2023, 25.10.2023 and 22.08.2024.

I have considered the rival submission and gone through the entire records.

Submission of learned counsel for the applicant is that the applicant, being a person with disability, is entitled to continuation of family pension beyond the age of 25 years in terms of Rule 54(6) of the CCS (Pension) Rules, 1972, as the said provision contemplates lifelong family pension to a disabled son or daughter who is unable to earn a livelihood due to the disability. Learned counsel further submits that the respondents have rejected the applicant’s claim on the basis of a medical opinion without furnishing or annexing the disability/medical examination report with the impugned order, thereby denying the applicant an opportunity to effectively contest the basis of the rejection and violating the principles of natural justice. It is also submitted that the applicant possesses a disability registration certificate dated 09.02.2024 issued by the competent authority under the Ministry of Social Justice and Empowerment, Government of India and prayer was made to allow the OA and impugned order dated 22.08.2024 be set aside.

Submission of learned counsel for the respondents is that the applicant’s claim for continuation of family pension beyond the age of 25 years has been duly considered in accordance with the applicable rules and Railway Board policy. It is submitted that, pursuant to the applicant’s request, he was medically examined by the Chief Medical Officer, Jhansi, and, on the basis of the medical examination report, he was found capable of earning his livelihood despite his disability and, therefore, not entitled to family pension. Learned counsel further submits that the applicant was duly informed of the said decision and his subsequent representations were also considered and replied to by the respondents. Thus, there is no illegality or infirmity in the impugned order dated 22.08.2024, and the Original Application, being devoid of merit, is liable to be dismissed.

I have considered the rival submissions and gone through the entire records.

Before discussing the submissions raised across the BAR, it will be useful to quote the operative portion of the impugned order dated 24.11.2021. The same is as under:-

It will also be useful to reproduce the relevant para of the opinion formed by the medical board in this matter. The same is as under:-

Perusal of the medical opinion itself reveals that the applicant is suffering from bilateral profound hearing loss and muteness and has 70% disability. However, the opinion that he is able to earn his livelihood in the “disabled category” does not disclose any assessment of his actual functional or vocational capacity, the nature of work he is capable of undertaking, or the manner in which he can earn his livelihood despite the nature and extent of his disability. Merely recording such a conclusion, without any specific assessment, cannot be treated as sufficient consideration of the applicant’s claim under Rule 54(6) of the CCS (Pension) Rules, 1972. The impugned order dated 22.08.2024 merely relies upon the aforesaid medical opinion and does not contain any independent or reasoned consideration of the applicant’s claim, particularly in the light of his disability certificate dated 09.02.2024. We, therefore, find that the applicant’s claim has not been considered in its proper perspective and the impugned order cannot be sustained.

The Original Application is accordingly allowed. The impugned order dated 22.08.2024 is hereby quashed and set aside. The respondents are directed to reconsider the applicant’s claim for grant/continuation of family pension afresh in accordance with Rule 54(6) of the CCS (Pension) Rules, 1972 and the observations made hereinabove. For such reconsideration, the respondents shall obtain a fresh and specific medical assessment, if considered necessary, regarding the applicant’s actual functional and vocational capacity to earn his livelihood, keeping in view the nature and extent of his Central Administrative Tribunal^{disability, and thereafter pass a reasoned and speaking order within a} period of three months from the date of receipt of a certified copy of this order. In case the applicant is found entitled to family pension, the same shall be released to him, along with consequential benefits admissible under rules, within a further period of two months. There shall be no order as to costs.