Family pension for disabled child requires Medical Board certificate confirming disability prevents earning livelihood; authority's denial upheld where board opines ability to earn despite 55% disability.

ORDER(ORAL)

Per : Hon’ble Shri Jayesh Bhairavia, Member (J)

1. In the instant OA, it is noticed that for the purpose of consideration of the claim of the applicant to include his name as beneficiary for grant of family pension, being disable dependent son of late ShriPrabhulalBapalalBrahmbhatt, Ex. CTNL, DRM’s Office, Bhavnagar Para, Western Railway, the applicant herein was called for medical examination by the respondent No.3 i.e. DRM (E) Bhavnagar Para, Western Railway in compliance of the order dated 13.07.2022 passed by the Commissioner of Persons with Disabilities, Government of India. In response to the said letter dated 13.07.2022, the applicant appeared for medical examination before the committee of medical expert on 23.08.2022. On examination of the applicant, the medical experts had diagnosis that he has Locomotive disability. It has been also diagnosis in the case of the applicant that he has Post Traumatic L1, L4 Facture with Para paresis. He has 55% disability, permanent in relation to his (part of body) as per guidelines.

Further, it has been opined by the said medical experts that the applicant is able to earn his livelihood, accordingly, to that effect, the Chief Medical Superintendent, Divisional Railway Hospital, Bhavnagar Para, Western Railway i.e. respondent No.4 herein had issued Medical Certificate No.62/2021-22 dated 23.08.2022 which has been duly signed by the Member of the Medical examination Board and the applicant had also acknowledged the said certificate dated 23.08.2022 (Annexure A/2).

1.1 Based on the said medical certificate dated 23.08.2022 wherein the Medical Board had recorded their finding that the applicant has 55% disability and he is able to earn his livelihood, the competent authority i.e. DRM, Western Railway, Bhavnagar i.e., the respondent No.3 herein vide his order dated 05.09.2022 had not accepted the claim of the applicant to include his name for grant of family pension (Annexure A/1 refers).

Being aggrieved with the said order dated 05.09.2022 whereby the claim of the applicant has been denied by the respondent No.4 for inclusion of his name for the family pension being disable son of late Railway employee, the applicant herein has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-

“(A) That the Hon’ble Tribunal be pleased to hold declare that impugned action on the part of the respondents regarding rejection of the claim of the applicant for Family Pension being dependent, disable, physically handicapped, son of the deceased Railway employee on the basis of the certificate dated 23.08.2022 issued by the Respondent No.4 on the ground that the applicant is able to earn his livelihood in non-est in the eyes of law.

(B) That the Hon’ble Tribunal further be pleased to direct the respondents to reconsider the claim / case of the applicant for Family Pension as per Rule and considering the fact that the disability of the applicant which was initially 40% is now more than 55% and the applicant is not earning, objectively and independently and without being influenced by the remarks made by the medical officer of the respondents.”

2. Mr. M.S.Trivedi, learned counsel for the applicant in support of the aforesaid prayer mainly submitted as under:-

(i) It is stated that the father of the applicant namely late PrabhulalBrahmbhatt on attaining the age of superannuation was retired from Railway service on 31.05.1992.Thereafter, the father of the applicant expired on 24.04.2000.

(ii) Aft