Central Administrative Tribunal - Ahmedabad
Gulshankumar Pannalal Varun vs Western Railway on 22 June, 2022
:: 1 :: O.A./191/2022 .
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O. A No.191/2022
Dated this the 22nd day of June, 2022.
CORAM:
Hon'ble Shri J.V. Bhairavia, Member (J)
Hon'ble Shri A.K. Dubey, Member (A)
Gulshankumar S/o Late Pannalal Varun
Age about 50 years, occupation unemployed
Residing at 19, Ramnagar Society,
Near Saint Arnold School, Godhara - 389 001
..Applicant
(By Advocate :Sh. Prabhatsinh Parmar)
Vs
1. Union of India
Owning and representing through
Divisional Railway Manager,
Western Railway, Vadodara Division,
Pratapnagar, Vadodara - 390 004.
2. Chief Medical Superintendent (CMS-BRC)
Divisional Railway Hospital,
Pratapnagar, Vadodara - 390 004. ....... Respondents
ORAL (ORDER)
Per: Hon'ble Shri Jayesh V. Bhairavia, Member (J)
1. In the instant OA, counsel for the applicant submits that pursuant to the order passed by this Tribunal dated 25.06.2021 in OA No.147/2021, for the purpose of consideration of his representation for grant of the family pension and inclusion of his name in the PPO being disabled son, his case was referred to a Medical Board by the respondents and the said medical board after examination of the entire things, rendered their opinion and report whereby it was opined to the effect that, "it :: 2 :: O.A./191/2022 .
is clear that the candidate is capable of earning his livelihood and therefore inclusion of his name in PPO is not recommended ", and on receipt of the medical report of the medical board the Chief Medical Superintendent, Divisional Railway Hospital, Pratapnagar, Vadodara, vide its letter dated 30.09.2021 (Annex. A/9 colly.) conveyed the said opinion of the medical board to the Divisional Railway Manager(E), (BRC). Thereafter, based on the said communication, the DRM vide its impugned order dated 11.10.2021 intimated the applicant about denial of his claim. Hence the instant O.A.
2. Counsel for the applicant submits that as such the applicant is disable person and in past he was working as a Technician, but at present, he is not doing any job nor he has any source of income to maintain his livelihood. The medical board and the office of the DRM failed to appreciate the said fact and erroneously rejected his representation. Further, it is submitted that as per the provisions of Rule 75(6) of the Railway Servants (Pension) Rules 1993 stipulates the role of a Medical Board to determine exact physical or mental condition of a disabled dependent, however, in the case in hand, the said Board had exceeded its jurisdiction and examined the capability of earning of the applicant herein. In fact, he has 40% permanent disability resulted from post-polio sequelae of paralysis, which incapacitated him to earn his livelihood. Therefore, the DRM who is the competent authority to determine the capability of earning based on such determination of permanent disability erroneously and in a mechanical manner accepted the findings of the Medical Board and it resulted into gross injustice to him.
3. Heard the learned counsel for applicant and perused the material on record. It is apt to mention that Rule 75 of Railway Servants (Pension) Rules, 1993 stipulates the Family Pension Scheme for Railway Servants, 1964. Rule 75 (6) (v) provides that 'if the son or daughter of a Railway servant is suffering :: 3 :: O.A./191/2022 .
from any disorder or disability of mind including the mentally retarded or is physically crippled or disabled so as to render him or her unable to earn living even after attaining the age of 25 years, the family pension shall be payable to such son or daughter for life subject to the following conditions viz. :
''(a) xxxxx xxxxx (b )xxxxx xxxxx
(c) xxxxx xxxxx
(d) before allowing the family pension for life to any such son or daughter, the appointing authority shall satisfy that the handicapped is of such a nature so as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from the medical board comprising of medical director or a chief medical superintendent or incharge of a Zonal hospital or Division or his name as Chairperson and two other Members, out of which at least one shall be specialist in the particular area of mental or physical disability including mental retardation setting out, as far as possible, the exact mental or physical condition of the child;
(e) xxxxx xxxxx
(f) xxxxx xxxxx."
4. In the present case, since the applicant being disabled dependent son of deceased railway employee, had claim for grant of family pension, the respondent i.e., DRM (E) (BRC) before taking any decision on the said claim had sent his case to the Chief Medical Superintendent, Divisional Railway Hospital.
Further, it emerges from the record that for the purpose of proper consideration of the claim of the applicant to grant him family pension as well to include his name in the PPO the Medical Authority i.e., Medical Board comprises of Dr. Deepali Tewari, ACMS/BRC, Surgeon, Dr. Prashanth M, ADMO/BRC, Dr. Akella Phanendra, ADMO/BRC and Dr. Tushar Mankad, HVS [Orthopaedic] had examined the medical reports as well the case papers of the applicant and upon thorough examination of it recorded their conclusion and gave recommendations which reads as under :-
'19. Conclusion - As per the Disability Certificate issued by Medical Authority, Panchmahal, Gujarat vide :: 4 :: O.A./191/2022 .
certificate no. GJ 1710619710051667 dated 29.05.2019, he is a case of Right lower limb weakness due to Post- Polio sequelae of paralysis with certified (as per Govt. certificate) 42-45%) physical impairment of right lower limb. On examination, he was employed as Technician previously and he appears to haver sound intellectual capability. Shri Gulshankumar Pannalal Varun S/o Late Pannalal Varun - M/50 years can carry out his average daily life activities without any assistance.
20. Recommendation : - The members of the Medical Board after careful examination of Shri Gulshankumar Pannalal Varun S/o Late Pannalal Varun - M/50 years who presented as the candidate for inclusion of name in PPO and pass are of the opinion that it is clear that the candidate is capable of earning his livelihood and therefore the inclusion of his name in PPO is not recommended. However, his name may be included in pass as per the extent rules, in view of 45% disability of right lower limb is recommended."
5. It can be seen that after considering the certificate issued by Medical Authority with regard to applicant's physical impairment of right lower limb due to Post-Polio sequelae of paralysis with certified (as per Govt. certificate 42-45%) physical impairment of right lower limb the Medical Board recorded its conclusion that the applicant can carry out his average daily life activities without any assistance and thereby recommended that "candidate is capable of earning his livelihood and accordingly the claim for inclusion of his name in PPO was not recommended". The Board, however, agreed to include the name of applicant for the Passes in view of 45% disability of right lower limb according to the extent rules.
In the present case, contrary to the expert's opinion of Medical Board there is no material placed on record to show that the applicant cannot work to earn his livelihood. The respondent no.1 i.e., the DRM by referring the said opinion of Chief Medical Superintendent not acceded with the request/claim of the applicant and passed the impugned order dated 11.10.2021 (Annexure A/1). In our consider view, in :: 5 :: O.A./191/2022 .
light of the procedure laid down under the Provision of sub- Rule (6) (v) (d) of Rule 75 of Railway Servant Pension Rule, 1993 as referred herein above, it cannot be said that the impugned decision order suffers from any legal infirmities more particular same cannot be said to be passed in violation of any Statutory Rules.
6. In view of the above discussions, we decline to accept the submission of the applicant. The OA lacks merit. Accordingly, the OA stands disposed of. No order as to costs.
(A K Dubey) (J.V.Bhairavia) Member(A) Member(J) Nk-jrm