The main legal principle established is that in cases of disability and entitlement to benefits, the medical certificate issued by the appropriate authority should be the primary consideration for determining eligibility, and the exercise of statutory authority should be fair and proper.

Order dated 8-9-2009 passed by the Central Administrative Tribunal, Jabalpur, Bench Jabalpur in O.A. No. 186/2009 is being assailed vide this petition under Article 227 of the Constitution of India. By impugned order the Tribunal while allowing Original Application has directed the petitioners herein to issue appropriate orders in favour of respondent/applicant, granting him Family Pension in terms of Rule 54(6) (iv) of Central Civil Services (Pension) Rules, 1972 (hereinafter to be referred to as Rules of 1972).

2. The original application in turn was directed against the communication dated 9-1-2009, whereby, General Manager (Administration) Ordnance Factory, Khamaria, informed respondent applicant the decision rendered by the Board constituted to assess the earning capacity of his livelihood in furtherance to an order passed in O.A. No. 123/2008 and as contemplated under Rule 54(6)(iv) of 1972 Rules. The Board assessed him having capacity to earn his livelihood. Accordingly, his claim for grant of family pension was declined.

3. The Family Pension was claimed by the petitioner, in lieu of death of his father, Dashrath Singh, who retired as Charge-man II, Ordnance Factory Khamaria on attaining the age of Superannuation on 31-5-1980 died on 1-2-2004, on the strength of Rule 54(6)(iv) of 1972 Rules, he being 40 % disabled and a bachelor.

4. Respondent preferred two original applications: O.A. No. 228/2007 and O.A. No. 123/2008 besides a Contempt Petition No. 35/2007, before filing O.A. No. 186/2009.

5. Original Application No. 228/2007 was disposed of on 10-4-2007 with the direction to respondents to consider the claim and pass a reasoned and speaking order. In course of its implementation petitioner, employer, by order dated 18-12-2007 rejected the claim on the ground that the respondent applicant failed to produce certificate from the Civil Surgeon in relation to his capacity to earn livelihood. This order was questioned in O.A. No. 123/2008 wherein by order dated 7-11-2008 the Tribunal quashed the order dated 18-12-2007, with a direction to employer Petitioner to consider respondent applicant's medical certificate issued by the District Medical Board, Victoria (S.G.D) Hospital, Jabalpur. In compliance to said direction, General Manager Ordnance Factory Khamaria referred the matter to a Board comprising of Principal Medical Officer of the Factory Hospital and a Senior Class I Officer to asses and find out for his own satisfaction as to whether the handicap of the respondent applicant is of such nature so as to prevent him from earning his livelihood. This direction was despite of the fact that a duly constituted District Medical Board has assessed him 40% disabled suffering from PPRP (Rt) LLR [paraplagia of Right Lower Limb which as per Mosbys' Medical Dictionary, 1999 means "An abnormal condition characterized by motor or sensory loss in lower limbs". This condition may or may not involve the back and abdominal muscles and may cause either complete or incomplete paralysis].

6. Be that as it may. The Competent Authority after considering the report from the said Board declined to grant Family Pension to respondent/Applicant holding that he does not suffer from any disorder or disability of mind or physically crippled or disabled which would prevent him from earning his livelihood. Upon challenge the Tribunal on the basis of rival submission and taking into consideration the fact that the Board constituted by General Manager, Ordnance Factory Khamaria comprising of Principal Medical Officer cannot be treated to be the Medical Officer "Medical Officer not below the rank of a Civil Surgeon" and placing reliance on section 2(p) of Person with Disability (Equal Opportunity Protection of Right and Full Participation) Act, 1995; wherein, the medical authority has been defined to be a hospital or institution specified for the purpose of Act by notification by appropriate authority set aside the order passed by the Competent Aut