Central Administrative Tribunal - Jabalpur
Yogendra Prasad Dubey vs M/O Railways on 9 December, 2024
1 O.A.No. 200/00130/2021
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
JABALPUR BENCH
Circuit Sittings Bilaspur
Original Application No. 130 of 2021
This the Day of ____ day of December, 2024
HON'BLE SMT.MALLIKA ARYA, ADMINISTRATIVE MEMBER
Yogendra Prasad Dubey, Aged 41 Yrs. S/o Late Salik Prasad
Dubey, Through: His Wife and Guardian Smt. Shweta Dubey
Aged 33 years, Housewife, R/o: Ward No. 16, Shanti Nagar,
BHILAI-3 District: Durg (CG) 490023
-Applicant
(By Advocate -Shri B.P.Rao)
Versus
1. Union of India, Through: The General Manager,
S.E.C.Railway, Bilaspur Zone, Headquarters' Office,
BILASPUR - 495004 (CG)
2. The Sr. Divisional Personnel Officer S.E.C.Railway, Raipur
Division, DRM Office, RAIPUR-492008
3. The Chief Medical Superintendent, S.E.C.Railway, Railway
Hospital, RAIPUR-492008
- Respondents
(By Advocate -Shri Siddharth Rathod)
THOLANA 2024.12.12
SHASHIKALA 10:55:07-08'00'
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2 O.A.No. 200/00130/2021
Reserved
ORDER
By Mallika Arya, AM;
The instant Original Application under Section 19 of the Central Administrative Tribunals Act, 1985 has been filed for the following reliefs:
8.1 That, the Hon'ble Tribunal be pleased to call for the relevant records from the Respondents for its kind perusal and to decide the grievance of the Applicant.
8.2 That, the Hon'ble Tribunal be pleased to quash and set aside the impugned letter dated 19.2.2020 (A-14) in the interest of justice.
8.3 That, the Hon'ble Tribunal be pleased to pass an Order, directing the Respondents to consider the Family Pension to Applicant (Mr. Yogendra Prasad Dubey) w.e.f. 13.6.2016 onwards on the basis of Permanent Medical Disability Certificate (A-12) issued by District Medical Board, Durg.
2. The brief facts as narrated in the instant O.A. is that the Applicant namely Yogendra Prasad Dubey is mentally disabled, is therefore, represented by his legally wedded wife and Guardian Smt. Shweta Dubey. He is the younger son of Shri Salik Prasad Dubey, a THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 2 of 14 3 O.A.No. 200/00130/2021 Reserved retired railway employee. His father passed away on 12.6.2016, and his mother passed away on 15.1.2005. His elder brother, Durga Prasad Dubey, was appointed to the railways on compassionate grounds after their father's death. The applicant Yogendra was diagnosed with Schizophrenia and has been receiving regular treatment at a Government hospital in Durg since 2009. In 2018, he was issued a Disability Certificate with 45% disability, valid until 2023, and a Unique Disability ID by the Government of India. Before his death in 2016, Yogendra's father had applied to include his mentally disabled son in the family pension scheme. This request was acknowledged by the Railway authorities, but his father passed away before the process could be completed. After his father's death, Yogendra, with the help of his wife, submitted the necessary forms to re-authorize the family pension in his favor. A medical examination conducted by the Railway Medical Board in 2019 led to a rejection of the family pension request due to the absence of a Permanent Disability Certificate. In response, Yogendra appeared before a District Medical Board in October 2019, which issued a Permanent Disability Certificate confirming that he is mentally handicapped and unable to earn a livelihood. Despite this, when the case was referred to the Railway Medical Board again in THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 3 of 14 4 O.A.No. 200/00130/2021 Reserved January 2020, the request for family pension was rejected once more, without providing any reasons, vide letter dated 19.2.2020. Thus, the case revolves around the applicant's persistent efforts to secure family pension despite providing all required medical documentations, including a permanent disability certificate. However, his request has been repeatedly rejected by the Railway Medical Board without a clear justification.
3. The respondents have argued that the applicant has not provided any specific details regarding the order against which the application is made or the subject matter in brief. They state that the averments in the original application are formal and do not require further comment, except that they do not admit anything beyond the official record. The respondents assert that simply producing a certificate stating the diagnosis of 'Schizophrenia' is insufficient to confer the right to family pension. They emphasize that family pension eligibility is governed by Para 75 (6) of the Railway Service Pension Rules 1993 and Establishment Rule 198/2013, which require a certificate from a Medical Board confirming that the disability is permanent in nature and that the applicant is unable to earn a livelihood. The THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 4 of 14 5 O.A.No. 200/00130/2021 Reserved family pension eligibility for a mentally or physically disabled child is contingent on the recommendation of the Railway Medical Board, which assesses whether the applicant's condition prevents them from earning a living. The respondents argue that the Medical Board did not recommend family pension for the applicant, and therefore, the Competent Authority did not consider him eligible for family pension. The applicant appeared before a three-Member Railway Medical Board in June 2019, and he produced a disability certificate with 45% disability. However, the certificate did not state that the disability was permanent, which led to the board's recommendation for rejection. In October 2019, the applicant produced another certificate from a District Medical Board, Durg but the respondents have contended that the District Medical Board is not the appropriate authority to assess whether the applicant is incapable of earning a livelihood or not. The Railway Medical Board is the competent statutory body, and they have not recommended his case for family pension. The disability certificate from the District Medical Board, Durg dated 01.10.2019 was marked as "not valid for medico-legal purposes". The three-doctor Medical Board of the Railways examined the applicant on 06.02.2020 and did not recommend him for family pension. The respondents argue that THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 5 of 14 6 O.A.No. 200/00130/2021 Reserved the applicant's mental illness (Schizophrenia), as noted in the medical reports, is insufficient to automatically grant family pension without the appropriate medical board's certification. The respondents further claim that the applicant has not exhausted all available remedies, such as filing a representation to the relevant authorities before approaching the Tribunal. They argue that the applicant should have first used the internal remedy before seeking a legal recourse.
4. Rule 15(4) of the CCS Pension Rules 1972 corresponds to Rule 75 (6) of the Railway Service Pension Rules 1993, which is reiterated as under:-
"(6) The period for which family pension is payable shall be as follows: - (i) in the case of a widow or widower, up to the date of death or remarriage, whichever is earlier; (ii) in the case of a son, until he attains the age of twenty five years; and
(iii) in the case of an unmarried daughter, until she attains the age of twenty five years or until she gets married, whichever is earlier: Provided that if the son or daughter, of a railway servant is suffering from any disorder or disability of mind including mentally retarded or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty-five years, the family pension shall be payable to such son or daughter for life subject to the following conditions, namely: - (a) the family pension shall be paid to such sons or daughters through the guardian as if he or she were a minor on the basis of guardianship certificate or the guardian appointed by a court except in the case of physically crippled son / daughter who has attained the age of majority.
(Authority: - Notification vide letter no. F (E) III/94/PN-1/31 (Amendment) dated 3.2.95 -SO No. 511) (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 THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 6 of 14 7 O.A.No. 200/00130/2021 Reserved evidenced by a certificate obtained from Medical Board setting out, as far as possible, the exact mental or physical condition of the child; (Authority: -
Notification vide letter no. F (E) III/2008/PN 1/10 dated 22.10.08) (c) the person receiving the family pension as a guardian of such son or daughter shall produce, once, if the disability is permanent, and once in every five years, if the disability is temporary, a certificate from a Medical Board to the effect that the son or daughter continues to suffer from disorder or disability of mind including mentally retarded or continues to be physically crippled or disabled. (Authority: - Notification vide letter no. F (E) III/2008/PN 1/10 dated 22.10.08 (2) A daughter shall become ineligible for family pension under this sub-rule from the date she gets married. (3) The family pension payable to such a son or daughter shall be stopped if he or she starts earning his or her livelihood. (4) In such cases it shall be the duty of the guardian to furnish a certificate to the Treasury or Bank, or Post Office (Authorised disbursement units for Railways), as the case may be, every month that
(i) he or she has not started earning his or her livelihood; (ii) in case of daughter that she has not yet married; (d) in the case of mentally retarded son or daughter, the family pension shall be payable to a person nominated by the railway servant or the pensioner, as the case may be, and in case no such nomination has been furnished to the Head of Office by such Railway servant or pensioner during his life time, to the person nominated by the spouse of such Railway servant or family pensioner, as the case may be , later on. (e) If the sons and unmarried daughters including sons and unmarried daughters suffering from disorder or disability of mind including mentally retarded are alive, the family pension shall be payable in the order of their birth irrespective of the sex of the child and the younger of him shall not be eligible for family pension unless the elder above him or her becomes ineligible for the grant of family pension. In cases, where the family pension is payable to twin children, the same shall be payable to such twin children in equal shares and in the event of any of such children ceasing to be eligible for family pension, his or her share of family pension shall not lapse but shall become payable to the other such child and when both such children become ineligible for family pension, the family pension shall become payable to the next eligible single child or twin, as the case may be.
5. It is observed that Ministry of Health and Family Welfare vide notification No. S.13020/1/2010 dated 18.06.2010, in pursuance of the Persons with Disabilities (Equal Opportunities, Protection of Right and THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 7 of 14 8 O.A.No. 200/00130/2021 Reserved Full Participation) Rules, 1996, done away with the Medical Board in cases other than those of multiple disabilities. Further, in terms of RBE circular No. 3/16 dated 11.01.2016 has in Para 3 & 4 states that "3. As per Section 2(p) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, "medical authority" means any hospital or institution specified for the purposes of this Act by notification by the appropriate Government. In pursuance of this, State Governments/UT administrations are required to notify the medical authorities to issue disability certificate
4. In addition to the authorities indicated in para 2 above, for grant of family pension under the CCS (Pension) Rules, 1972, including past cases, the authority competent to issue disability certificate would be any hospital or institution specified as a Medical Authority for the purposes of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act by notification by the Central Government or a State Government or a Union Territory Administration."
6. Railway Board has further issued instructions No.118/2014 dated 27.10.2014 relying upon the Ministry of Personal & Public THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 8 of 14 9 O.A.No. 200/00130/2021 Reserved Grievances, OM No. 1/18//01-P&PW€Vo.II, dated 30.09.2014 wherein it has been directed the authority competent to issue the disability certificate would be as per the guidelines issued by the Ministry of Health & Family Welfare dated 18.06.2010, in pursuance of Rule 54(6) of the CCS Pension Rules 1972. Thereafter, RBA circular No.3/2016, dated 11.01.2016 has made the guidelines issued by the Department of Pension and Pensioners' Welfare dated 05.11.2015 to apply mutatis motandis to the Ministry of Railways.
7. Attention is also drawn to Para 3 of RBE Circular No. 96/2019, dated 13.06.2019, which states as under :-
"3. The above issue has been examined in consultation with the Department of Pension & Pensioners' Welfare (DOP&PW), the nodal Department of the Government on pensionary matters DOP&PW has clarified that the disabilities as specified in the Rights of Persons with Disability Act, 2016 would be covered and that they have not specified the percentage of disability for grant of family pension to such son or daughter. It is for the Competent Medical Authority to certify the percentage of disability. Further, before allowing family pension in favour of such son or daughter, the appointing authority has to satisfy that the disability is such that he/she is not able to earn his/her livelihood and the same THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 9 of 14 10 O.A.No. 200/00130/2021 Reserved shall be evidenced by the certificate issued by the Competent Medical Authority."
8. On perusal of the Railway Medical Board recommendation it is evident that the case of the applicant has been rejected since he could not produce the permanent disability certificate. Thereafter, his case was again rejected vide letter dated 06.02.2020 on the ground that disability certificate has been issued by the District Medical Board, Durg which was not acceptable to the respondents. No cogent reasons have been given by the Railway Medical Board in terms of the above circulars which clearly state that the disability of the applicant or the fact that he is incapable to earn his livelihood has to be ascertained by the Competent Medical Authority.
9. Reliance has been placed by the applicant on the judgment dated 19.02.2007 passed by Hon'ble Kerala High Court in WP(C) 5441/2007 (S) - Union of India & Others vs. K. Dhanarathinam in which the following observation has been made:-
"In the case of family pension matters of disabled dependents, of course, one has to look into the matter with compassion and sympathy. But, at the same time, rules cannot be violated. We are in perfect THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 10 of 14 11 O.A.No. 200/00130/2021 Reserved agreement with the Tribunal. State should not waste time and money in contesting such matters compelling the disabled dependents to contest in various courts."
10. The applicant has also drawn attention to the judgment dated 15.07.2020 passed by Hon'ble High Court of Himanchal Pradesh, Shimla in CWP. 1915 of 2020 - Kanchan Vs. State of H.P. & Ors in case No. 1915 of 2020 dated 15.07.2020 regarding the contention of the Respondents that certificate issued by the District Hospital Durg is not valid for medico-legal purposes. In this context the Hon'ble High Court has observed as under :-
"16. However, before parting, it needs to be observed that this Court has come across number of cases therein Medical Officers including Chief Medical Officers, day-in and day-out, are issuing disability certificates with the note that the same would not be valid for Court cases or for claiming compensations.
17. We really fail to appreciate, comprehend and understand as to under which provision and authority such kinds of certificates are being issued. After all there is a presumption of regularity of official act and, therefore, we would assume that the concerned Medical Officers/CMOs must have examined and thereafter satisfied himself before issuing such certificates.
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18. We are further at a complete loss to understand the purpose and object of issuing such certificates. Once a certificate is issued by a Medical Officer, he cannot be permitted to back out from the contents contained in said certificate fearing any prosecution, criminal or contempt of the Courts, once produced in a Court of law, the Court is bound to see whether the Medical Officer has the authority or not to issue such kinds of certificates and in case the contents of same are found to be false in whole or in part, then obviously, the Medical Officer issuing such certificate is liable for penal, departmental or any other action that may be warranted under law.
19. We are convinced that this note has been appended only with the intent that the Officer issuing the certificate may not be hauled up before the Court or Tribunal, if eventually such certificate is found to be false in whole or in part. The Court cannot approve this."
11. I also take note of the judgment of the Ernakulam Bench of CAT in OA No. 697/2009 dated 18th October, 2010 wherein it has been held that mentally retarded son of the deceased employee is eligible to receive family pension even after marriage and that the wife of the mentally retarded son is eligible to be the guardian. The OA has been allowed by the CAT Ernakulam Bench and the respondents have been directed to fix the family pension of the mentally challenged son which reads as under:-
THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 12 of 14 13 O.A.No. 200/00130/2021 Reserved "I am of the view that the mentally retarded son of the deceased employee is eligible to receive family pension even after marriage and that the wife of the mentally retarded son is eligible to be the guardian. Hence, I declare that the applicant being the guardian of the son of the deceased employee, is competent to receive the same for and on behalf of the said son. The OA is allowed as above. The respondents are, therefore, directed to fix the family pension of the son w.e.f. the date of death of the employee and disburse the same to the applicant/employee as early as possible, at any rate within three months from the date of receipt of a copy of this order. No costs."
12. In the light of the above I observe that Respondents have wrongfully rejected the case of the applicant on one ground or the other without ascertaining his percentage of disability and the fact that he is unable to earn his livelihood. This is in clear contradiction to various circulars/guidelines issued by the Department of Pension & Pensioners' Welfare and the subsequent circulars issued by the Railway Board in pursuance of the same on the subject.
13. Respondents should have got the case of the applicant examined for his disability and should have got ascertained the fact as to whether he is capable to earn his livelihood, from the Competent Medical Authority rather than make him run from pillar to post. THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 13 of 14 14 O.A.No. 200/00130/2021 Reserved
14. Therefore, I allow the OA and accordingly, direct the Respondents to reconsider the case of the applicant within 90 days from the date of receipt of a certified copy of this order.
15. No order as to costs.
(Mallika Arya) Administrative Member /Shashi/ THOLANA 2024.12.12 SHASHIKALA 10:55:07-08'00' Page 14 of 14