The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32877 of 2022 Ranjan Kumar Singh Petitioner Mr. Laxmi Prasad Dwivedy, Advocate …. -versus- State of Odisha and others …. Opp. Parties Mr. N.K. Praharaj, A.G.A. Mr. S.K. Patra, Advocate for O.P. No.2 CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 03.01.2023 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the record and the documents annexed thereto. 3. The present writ petition has been filed by the petitioner with the following prayers: “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to: (i) thereby direct the Opp.Parties quash the Order, dated 06.09.2022 issued by the Opp. Party No.2 as at Annexure-13 and to sanction and release the family pension in favour of the Petitioner w.e.f. 05.10.2011, i.e. the date of death of the mother of the Petitioner, within a stipulated period as may be prescribed by this Hon’ble Court; (ii) pass such other order(s) or issue direction(s) as may be deemed fit and proper in the // 2 // bona fide interest of justice;” 4.
Legal Reasoning
Learned counsel for the petitioner submits that the father of the petitioner was working as a Special Officer in the Office of the Advocate General, Odisha. After retirement from service on attaining age of superannuation, the father of the petitioner was getting regular pension. Thereafter, the father of the petitioner passed away on 16.07.2009 leaving behind the legal heirs. Referring to the legal heirs certificate issued by the competent authority Government of Odisha, learned counsel for the petitioner submits that the petitioner has been shown as a legal heir of the deceased Government employee along with other legal heirs. It is further contended by learned counsel for the petitioner that after death of the father of the petitioner on 16.07.2009, mother of the petitioner also passed away on 05.10.2011. 5. Further, learned counsel for the petitioner submits that the petitioner is a disabled person and in support of his contention, learned counsel for the petitioner referred to the certificate issued by the Chief Medical Officer, Cuttack granting authority i.e. City Hospital, Cuttack, which has been countersigned by the Chief Medical Officer, Cuttack. On perusal of the certificate in Form-II i.e. disability certificate, it appears that the petitioner has locomoto disability and on diagnosis it was found that the case of the petitioner is post polio residual paralysis. The disability has been assessed ad reported in the certificate is 76% and such certificate has been issued on 03.06.2017. Accordingly, learned counsel for the petitioner submits that the petitioner is eligible to get family pension under the Odisha Pension Rules. In view of the provision contained in Rule- 56(5)(f) (ii) which read as follows:- xx xx xx xx // 3 // “(ii) before allowing the family pension for life to any such son or daughter the sanctioning authority shall ensure that the disability or disorder handicap is of such a nature so as to prevent him or her from earning his or her livelihood, basing on the certificate obtained by the claimant from a medical officer not below the rank of Chief District Medical officer setting out, as far as possible, the exact mental or physical condition of the child indicting the extent of disability suffered which is not less than 40%.” xx xx xx xx 6. Referring to the aforesaid provision in the aforesaid Rules, learned counsel for the petitioner contended that the petitioner is entitled to get family pension as he has no other source of livelihood. It is further submitted by learned counsel for the petitioner that on the basis of the legal heir certificate issued by the competent authority for grant of family pension, learned counsel for the petitioner draws attention of this Court to a letter issued by Law Department, which has been issued under the signature of Deputy Secretary to Government to the Accountant General (A&E), Odisha, Bhubaneswar. On perusal of the letter annexed to the writ petition under Annexure-12, it is seen that the case of the petitioner has been recommended by the Law Department, Government of Odisha to the Accountant General (A&E), Odisha, Bhubaneswar for grant of family pension on the ground that the petitioner is physically crippled son of the deceased Government employee. Most unfortunately, the case of the petitioner for grant of family pension has been rejected by the Office of the Accountant General (A&E), Odisha, Bhubaneswar- // 4 // Opposite Party No.2 by referring to the letter issued by the Finance Department dated 05.08.2022 GOFD Order No.19813/F on the ground that the medical certificate has been issued on 31.06.2017 after death of the pensioner on 16.09.2009. 7. Mr. S.K. Patra, learned counsel appearing for the Accountant General (A&E), Odisha, Bhubaneswar-Opposite Party No.2 contended that Sr. Accounts Officer, Odisha, office of the Accountant General (A&E) in rejecting the application of the petitioner vide letter dated 22.09.2022 under Annexure-13 has not committed any illegality. Mr. Patra, learned counsel for the Opposite Party No.2 further contended that the claim of the petitioner has been rejected basing upon the Finance Department Order No.19813/F dated 05.08.2022 as the medical certificate has been issued after the death of the pensioner on 16.09.2009. Accordingly, Mr. Patra while justifying the conduct of the Accounts Officer submits that the writ petition is devoid of merit and the same should be dismissed. 8. Learned counsel for the State, on the other hand, referring to the letter of the Law Department, Government of Odisha dated 03.12.2021 under Annexure-12 submitted that the name of the petitioner has already been recommended to Opposite Party No.2 for grant of family pension. Therefore, the State Government has no rule in the matter, which is now entirely up to the Opposite Party No.2 to take a decision in the matter. However, he further contended that while recommending the case, the concerned department has taken into consideration the relevant criterias and has examined the matter thoroughly and on being satisfied the case of the petitioner has been recommended for grant of family pension. 9. Having heard learned counsels for the respective parties and // 5 // considering the rival contentions, this Court while adjudicating the matter, carefully examined the provision which has been quoted hereinabove. The relevant provision provides that before allowing the family pension for life to any son or daughter on the ground of disability or disorder, handicap the authorities have to examine that the handicap, disability, disorder is of such nature so as to prevent him/her from earning his/her livelihood and further such examination has to be based on the certificate to be obtained by claimant from the Medical Officer not below the rank of Chief District Medical Officer stating the exact mental and physical condition of the person indicating the disability, which is not less than 40%. Keeping in view such principle in mind, this Court re-examined the Medical Certificate obtained by the petitioner in Form-II under Annexure-5 from the City Hospital, Cuttack, which has been countersigned by the C.D.M.O., Cuttack. The said certificate also reveals that the petitioner has locomoto disability and polio residual paralysis and the disability shown is 76% and further the report reveals that permanent physical impairment/blindness /disability to both legs of the petitioner. 10. On careful consideration of the Certificate, this Court is of the considered view that the nature of disability as has been indicated by the Medical Officer is sufficient to presume that the petitioner may not be able to earn his livelihood on his own. In such view of the matter, this Court is also of the considered view that the recommendation of the Law Department to the Opposite Party No.2 under Annexure-12 vide letter dated 02.12.2021 is perfectly justified and is in consonance with the provisions of the rule, therefore, Opposite Party No.2 should have acted on the recommendation made by the Administrative Department under Annexure-12. The // 6 // contentions raised by Mr. S.K. Patra on behalf of the Opposite Party No.2 that the Medical Certificate has been issued after death of the pensioner is an embargo created by some executive order. No such provision is to be found in the Rules, creating any such embargo for grant of family pension, otherwise also question of getting family pension would arise only after the death of the pensioner and not before submitting the prescribed Form under the Rules. Therefore, such a ground taken by the Opposite Party No.2 to reject the claim of the petitioner appears to be vague, baseless and legally unsustainable. 11. In view of the aforesaid analysis of facts and law, this Court has no hesitation to quash the impugned order dated 03.12.2021, accordingly the same is hereby quashed. Further the Opposite Party No.2 is directed to process the claim of the petitioner further and in the event, it is found that the application of the petitioner is otherwise in proper form supported by required documents then the same can be processed and sanctioned and the family pension amount be disbursed in favour of the petitioner as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order. The authorities are directed to act upon production of certified copy of this order. 12. With the aforesaid observation/direction, the writ petition is
Decision
disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra) Judge