Sunil Kumar Tiwari vs Union Of India & Ors

Mohan Pyare, Member (A)

Shri Dharmendra Tiwari, learned counsel for the applicant and Shri Subhash Chandra Mishra, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

“ (i) To issue a writ, order or direction in the nature of Certiorari to quash and set aside the impugned order dated 08.08.2016 Annexure A-1.

(ii) To issue writ order or direction in the nature of mandamus commanding the respondents to reconsider the claim of applicant for family pension and grant him accordingly as early as possible.

(iii) To issue any further order or direction in favour of the applicant which this Hon’ble Tribunal may deem fit and proper in the circumstances of aforesaid case.

(iv) To award the cost of this application in favour of the applicant.”

The facts of the case are that the applicant handicap son of railway pensioner submitted for grant of family pension to him after the demise of wife of the deceased employee in due format with a certificate from Chief Medical Officer, Gorakhpur. The same was rejected by the respondents mentioning that the applicant is not entitled for family pension on the basis of medical report submitted by the Railway Medical Board. The content of the recommendation of Railway Medical Board is reproduced as below :-

“ Mr. Sunil Kumar Tiwari applied for family pension on ground of deformity “left hip an amlebe with shortning of leg (65% disability)” as mention in medical certificate no.5324 dt. 22.03.12 from district hospital GKP.

He was examined on 15.07.16 at LNM Railway Hospital GKP and found that however his left leg shortning is 4 inch, neck and hip movement is partially restricted and walk with forward bending with help of stick but muscle power of his both upper limb and right lower limb is normal grade (5/5) and he can earn is livelihood by his own. Therefore the Medical Board recommends that he is not eligible for family pension.”

The applicant submits that the impugned order is illegal, unlawful and against the relevant rule and requested for quashing the impugned order dated 08.08.2016 (Annexure-A-1).

In the counter reply, the respondents have denied the allegations made in the OA and submitted that as per the Medical Board’s opinion, the applicant’s muscle power of both upper limb and right lower limb is of normal grade i.e. 5/5, as such he could not be completely depended upon his father and mother and further he can earn his livelihood making him illegible to get the family pension. The respondents have submitted that under the provisions of Railway Service Pension Rule, 1993, the Medical Board was constituted for considering the case of the applicant and Medical Board recommended that the applicant is not eligible for family pension and based on the above recommendation, the competent authority vide order dated 08.08.2016 rejected the claim of the applicant. The relevant portion of the above rule is quoted as below :-

“(b) before allowing the family pension for life to any such son or daughter, the sanctioning authority shall satisfy that the handicap is of such, prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Divisional Medical Officer setting out, as far as possible, the exact mental or physical condition of the child.”

On the basis of above discussions, the respondents have requested to dismiss the claim of the applicant.

Heard the argument of both the counsels and analyzed the material available on record and the following conclusions are derived. As mentioned by the respondents that applicant is not completely dependent upon his father and mother and he could earn his livelihood by his own. A careful perusal of the words shows that the applicant is dependent on pension of the father/mother. The respondents have not quantified the dependence of applicant on pension of father/mother by mentioning that he is not completely dependent on father/mother’s pension. The perusal of the Certificate issued by Railway Medical Board shows that person is not able to stand of right, can move with a stick, muscle power of left lower limb is not normal although muscle of both the upper limb and right lower limb is normal. The development of above said muscle would also be the result of extra effort put by the applicant while walking or doing his normal routine work. They have also not disputed the deformity /shortning of the leg of the applicant. Still, it was concluded that he can earn his livelihood and does not satisfy the conditions laid down in Railway Service Pension Rules, 1993 making him illegible for family pension. The conclusion drawn by the Railway Medical Board and accepted by the competent authority/respondents appears to be a long-drawn conclusion and does not rest on reasonable ground. In the circumstances, the impugned order dated 08.08.2016 is quashed and the OA is allowed. No order as to costs.