The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.8774 of 2024 Mr. Shadab Iqbal Baig ..... Petitioner Represented By Adv. – Mr. A.K. Mohanty Union of India and others ..... Opposite Parties -versus- Represented By Adv. –
Legal Reasoning
Mr. P.K. Parhi, D.S.G.I. along with Mr. S.S. Kashyap, C.G.C. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 16.04.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioner as well as learned Mr. P.K. Parhi, learned Deputy Solicitor General of India along with Mr. S.S. Kashyap, learned Central Government Counsel; appearing for the Union of India- Opposite Parties. Perused the writ petition as well as the document annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “It is therefore prayed that this Hon’ble Page 1 of 6. Court may graciously be pleased to : Admit the writ application; i) ii) Call for the records; iii) to Issue rule NISI calling upon the Opp. Parties to show cause as to why they shall not be directed to grant family pension the petitioner being a permanently disable/mentally retarded son of deceased pensioner Dr. Mirza Iqbal Baig; And If the Opp. Parties do not show to show insufficient cause, the writ may be made absolute and a writ of mandamus be issued to the Opp. Parties to grant family short reasonable time; And Further be pleased to pass any other order/orders, direction/directions as this Hon’ble Court deem fit and proper for the ends of justice.” pension within a iv) v) 4. It is submitted by the learned counsel for the Petitioner that the Petitioner being aggrieved by the order dated 25th April, 2023 under Annexure-4, has approached this Court by filing the present writ petition. In course of his argument, learned counsel for the Petitioner submitted that the father of the present Petitioner, namely, Dr. Mirza Iqbal Beg retired from service on 30.06.2004. He further contended that after his retirement he was getting pensionary benefits till his death on 22.05.2021. The Petitioner being one of the legal heirs of the deceased employee applied for disability family pension. Page 2 of 6. For the aforesaid purpose, the Petitioner was examined by the Medical Board and a disability certificate was issued in favour of the Petitioner on 30.06.2022. Thereafter, the Opposite Party No.4 forwarded the application of the Petitioner along with a disability certificate to the Opposite Party No.3 for consideration of the case of the Petitioner for grant of disability pension. However, the Opposite Party No.4 vide impugned letter dated 25th April, 2023 under Annexure-4 deferred the payment of disability pension to the Petitioner on the ground that the application submitted before the authority does not satisfy the requirement that the Petitioner’s disability existed before the death of the Government servant or pensioner and his or her spouse. He further contended that the Opposite Party No.4 on examination of the disability certificate found that the same was issued on 03.06.2022, i.e. after the death of the pensioner/Ex-Government servant on 22.05.2021. Therefore, the Opposite Parties have presumed that the disability as alleged by the Petitioner has occurred after the death of the Ex-Government servant. On such ground, the disabled family pension as is due and admissible to the Petitioner has been deferred. 5. On perusal of the impugned letter dated 25.04.2023, it appears that the decision for payment of disability family pension has been deferred on the aforesaid ground with a further observation that the Opposite Party No.3 has been requested by Opposite Party No.4 to go through the rule, application and documents and further to examine the request Page 3 of 6. of the Petitioner in consultation with Administrative Section IG as to whether disability family pension is to be granted to the disabled son of the above Ex-Government servant with reference to the rule, i.e. The Right of Persons with Disability, 2016. 6. In course of his argument, learned counsel for the Petitioner further contended that on the request of the Departmental Authority, the Petitioner appeared before the Medical Authority for examination. On examination, the Medical Authorities have issued a disability certificate dated 03.06.2022 under Annexure-5. On a perusal of the certificate under Annexure-5. It is revealed that the Petitioner has 70% permanent disability in his brain as per the guidelines provided in the Rule of the year 2016. Finally, they have concluded that the Petitioner is mentally retired as he has been diagnosed and is suffering from chronic schizophrenia. However, since the certificate was issued only on 03.06.2022, i.e. after the death of the pensioner, his case has not been considered by the authorities. 7. Learned Central Government Counsel, on the other hand, contended that the Opposite Parties have not committed any illegality in deferring the decision with regard to payment of disability family pension to the present Petitioner. He further contended that as per the requirement of the rule, the disability must have occurred prior to the death of the Petitioner. However, in the present case, the certificate has Page 4 of 6. been issued on 03.06.2022, i.e. much after the death of the pensioner. Therefore, the Opposite Parties have deferred the decision for payment of disability family pension of the Petitioner and the same has been rejected. In such view of the matter, learned Central Government Counsel submitted that the present writ petition is pre-mature and, as such, the same is liable to be dismissed. 8. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the materials on record, this Court is of the considered view that the Rule of the year 2016 provides that the disability must have existed before the death of the Government servant or the pensioner. However, the disability certificate issued by the competent Medical Authority does not indicate the probable date of his disability. In other words, the certificate does not disclose since when the Petitioner has been suffering from such disability. On a careful scrutiny of the pleadings in the writ petition, it appears that the Petitioner has taken specific averments that the Petitioner has been suffering from such disability since the year 2017, which is much prior to the death of the deceased Government servant. 9. In view of the aforesaid facts, this Court deems it proper to dispose of the writ petition with a direction to the Opposite Party No.3 to request the medical authorities to re-examine the Petitioner and further with a request to examine and give their Page 5 of 6. opinion with regard to the duration of such disability, i.e. the date whence the Petitioner has been suffering from such disability. In the event it is found that the Petitioner has been suffering from such disability prior to the death of Government servant or pensioner, then the Opposite Parties shall process the application of the Petitioner and the Petitioner be paid the disability family pension as is due and admissible to him as per rules, within a period of two months from the date of communication of a certified copy of this order. While taking such decision, the Opposite Parties shall also take into consideration the judgment of this Court in Pradipta Kumar Pattanaik v. State of Odisha and others (W.P.(C) No.2879 of 2023 decided on 19.05.2023). Any order passed by the authority in the representation shall be intimated to the Petitioner from time to time. 10. With the aforesaid observation and direction, the writ petition stands disposed of. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 19-Apr-2024 19:32:53 Page 6 of 6.