Mohd. Raees v. State of U.P. and
Case Details
Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 842 of 2021 Appellant :- Dakshinanchal Vidyut Vitran Nigam Limited And 4 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Sushil Kumar Pal Counsel for Respondent :- C.S.C.,Ramakant Tiwari Hon'ble Pritinker Diwaker,J. Hon'ble Ashutosh Srivastava,J. Civil Misc. Exemption Application No. 1 of 2021: Heard. Allowed. The applicant/appellant is exempted from filing the certified copy of the judgment of the learned Single Judge. Order on Appeal: This Intra-Court Appeal questions the legality, propriety and correctness of the judgment of the learned Single Judge dated 28.7.2021 passed in Writ-A No. 3571 of 2019 (Mohd. Raees versus State of U.P. and 5 others) whereby
Decision
the writ petition has been allowed, the order dated 18.1.2019 negating the claim of the writ petitioner/respondent for grant of disability pension in terms of applicable scheme of the appellant has been set aside and the respondents have been directed to consider the writ petitioner's claim for grant of disability pension afresh in the light of the observations made in the order and to ensure release of consequential benefits within a period of four months. In the writ petition, a challenge was raised to the order dated 18.1.2019 passed by the Adhishashi Abhiyanta, Vidyut Vitran Khand-I, Dakshinanchal Vidyut Vitran Nigam Ltd., Kanpur whereby and whereunder, the claim of the writ petitioner / respondent directed to be considered pursuant to the directions contained in order dated 27.4.2017 passed in Writ Petition No. 18377 of 2016 has been rejected on the strength of the report dated 11.7.2018 submitted by the CMO, Kanpur Nagar which records that the writ petitioner is not entirely disabled and can work while sitting but has difficulty in walking and running. The facts necessary for deciding this appeal, in brief, are that the appellant / corporation has adopted the government order dated 6.8.1991 providing for grant of family pension to the family members of a deceased employee, even after he has attained majority in case he is suffering from some physical or mental disability. The grant of family pension is subject to certain conditions one being that the disability, whether physical or mental, should have been acquired during the service tenure of the government employee and prior to his death. However, vide government order dated 12.11.1997 the aforesaid condition has been done away with and now even if the disability has been acquired after retirement of a government servant it would stand covered by the government order dated 6.8.1981. The object of issuing the government order dated 6.8.1981 is to provide social security to such dependants of a deceased government servant who are incapacitated on account of physical or mental illness and are unable to earn their livelihood. It is a social welfare scheme and its provisions are liable to be construed liberally. The writ petitioner / respondent is handicapped person since childhood due to polio and is suffering with bone weakness in the leg and is stated to be wholly dependant upon his father and is unable to earn his livelihood independent of his father. A handicapped certificate dated 26.7.1995 has been issued by the CMO, Kanpur Nagar. The father of the writ petitioner was a regular employee of the appellant Corporation and is stated to have retired on 30.5.1991 and was getting pension. He is stated to have expired on 2.8.2011 leaving behind the writ petitioner as his only surviving heir, the wife having died during his lifetime. The petitioner after death of his father raised a claim for the family pension along with fresh handicapped certificate issued by the CMO, Kanpur Nagar dated 21.12.2011 showing 40% disability. The claim was kept pending and the petitioner was compelled to approach this Court by means of writ petition No. 18377 of 2016. The writ petition was disposed of with directions as noted by the learned Single Judge in the impugned order. The respondents pursuant to the directions constituted a Special Medical Board and subjected the writ petitioner to it and passed order that he is not entirely disabled and that he can work while sitting but has difficulty in walking and running and as such, not entitled to grant of family pension. The learned Single Judge while allowing the writ petition has noticed that the appellants have adopted the government order dated 6.8.1981 which contemplates grant of family pension to family members of a deceased employee; the writ petitioner has disability to the extent of 40% as certified by the CMO, Kanpur Nagar; the GO is silent on the extent of disability, the writ petitioner satisfies the benchmark disability of 40% as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which is to be resorted to in the absence of extent of disability provided under the GO dated 6.8.1981; writ petitioner has to be treated to be a person with disability; the object of the GO is to provide succour to such disabled person, once the government servant on whom such person was dependant has died; the respondent have failed to show that the writ petitioner has sufficient means available for sustaining his existence. The learned counsel for the appellants submits that the learned Single Judge erred in allowing the writ petition discarding the report of the Special Medical Board which reported that the writ petitioner is not entirely disabled and he can work while sitting, but has difficulty in walking and running. We are not at all impressed with the submissions advanced by the learned counsel for the appellants in support of the appeal. We find that the learned Single Judge has considered all aspects of the matter in the correct perspective. We are unable to persuade ourselves to take a different view of the matter as taken by the learned Single Judge. This Intra-Court Appeal has no merit and is, accordingly, dismissed. It is expected from the appellants to comply with the directions of the learned Single Judge expeditiously preferably within one month. Order Date :- 7.3.2022 Ravi Prakash (Ashutosh Srivastava, J.) (Pritinker Diwaker, J.) Digitally signed by RAVI PRAKASH Date: 2022.03.22 11:32:59 IST Reason: Location: High Court of Judicature at Allahabad