Raj Kumar Yadav vs Union Of India And Others

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-

“(i) to quash the order dated 6.2.2016 and the order dated 26.11.2015 passed by the respondent No. 3 the Mukhya Karkhana Prabandhak (Karmik), Gorakhpur (Annexure No. A-1 and A-2 to this original application).

(ii) to direct the Director, Medical (North Eastern Railway) Gorakhpur to constitute a Medical Board under the membership of Orthopedics Expert in accordance with the Circular issued by the Ministry of Personnel, P.G. & Pensions, Department of Pension & Pensioners’ Welfare dated 30.9.2014.

(iii) To direct the respondent No. 3 the Mukhya Karkhana Prabandhak (Karmik), Gorakhpur to grant family pension to the petitioner.

(iv) Any other relief as this Hon’ble Tribunal deem fit in the circumstances.

(v) Award cost of the original application in favour of the applicant”.

The facts, in brief, are that applicant’s father was receiving pension from the Railway and after the death of his father, applicant applied for family pension as he is physically handicapped. Respondent NO. 3 directed the applicant vide letter dated 6.4.2015 for re-medical examination from Mukhya Chikichha Nideshak, North Eastern Railway, Gorakhpur. In pursuance of aforesaid letter, applicant appeared before the Mukhya Chikichha Nideshak, North Eastern Railway, Gorakhpur. Mukhya Chikichha Nideshak, North Eastern Railway, Gorakhpur without applying his mind and without perusing the medical report dated 30.09.2015 rejected the claim of the applicant.

I have heard Shri Sunil holding brief of Shri Ashish Srivastava, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the record.

Submission of the learned counsel for the applicant is that applicant is medically disabled and his father was in service in the respondents’ department. His father was receiving pension and died. Thereafter applicant approached before the respondents for grant of family pension on the basis of disability. Learned counsel further argued that medical board constituted by the respondents was not in accordance with the guidelines. An Orthopedic doctor has issued disability certificate disclosing 80% disability. To substantiate his argument, learned counsel for the applicant refers to Annexure A-7 and further argued that impugned order passed by the respondents is non-speaking, no reason has been assigned in it. Applicant applied for re-medical examination, the same was rejected. Referring to the guidelines, it was further argued that applicant is entitled for family pension in accordance with OM No. 1/18/01-P&PW (E) (Vol. II) dated 30.09.2014. Thus he prayed to allow the OA and setting aside the impugned order and to direct the respondents to re-medically examined the applicant in accordance with circular and to grant family pension.

Learned counsel for the respondents referring to the counter affidavit argued that there is no illegality or impropriety in the impugned order. Applicant was re-medically examined by the Board properly constituted in the matter in accordance with the circular and guideline and no disability was found to attract the OM No. 1/18/01-P&PW (E) (Vol. II) dated 30.09.2014. It is next argued that since the applicant did not come under the category for granting family pension, thus respondents has rightly declined to grant of family pension. Learned counsel also referred to paragraph No. 10 to 15 of the counter affidavit and further prayed to dismiss the OA.

I have considered the rival submissions advanced by the learned counsel for the parties and also perused the report of Medical Director/L.N.M Railway Hospital, Gorakhpur.

From the perusal of aforesaid OM dated 30.09.2014, it is evident that “Rule 54 (6) of CCS (Pension) Rules had been amended vide this department’s notification of even number dated 25th April 2008 to change the competent authority to issue a disability certificate from a Medical Board comprising of a Medical Superintendent or a Principal or a Director or Head of the Institution or his nominee as Chairman and two other members out of which at least one shall be a Specialist in the particular area of mental or physical disability including mental retardation”. Hence, it is specifically provided in the aforesaid OM that one specialist doctor should be nominated as a member in the Medical Board. In the instant case according to the applicant no Orthopedic doctor had been nominated as a member in the Medical Board.

In view of the aforesaid observation, I am of opinion that OA is liable to be allowed. Accordingly, OA is allowed. Impugned orders dated 06.02.2016 and 26.11.2015 are quashed. Respondents are directed to constitute the Medical Board in accordance with OM OM No. 1/18/01-P&PW (E) (Vol. II) dated 30.09.2014 and thereafter pass a detailed and reasoned order. If applicant comes under the category of disabled person, he be given family pension. This exercise shall be completed within a period of 2 months from the date of receipt of a certified copy of this order.No order as to costs.