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Rajasthan High Court · body

2012 DIGILAW 816 (RAJ)

Rohit Sharma v. State of Rajasthan

2012-04-03

PREM KHANKER ASOPA

body2012
Hon'ble ASOPA, J.—Heard learned counsel for the parties. 2. By this writ petition, petitioner has sought declaration that he being totally blind and illiterate is entitled to receive family pension under the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as `the Rules of 1996'). He has sought further direction to the respondents to release family pension to the petitioner within specified period alongwith interest at the rate of 9%. 3. Briefly stated the facts of the case are that the petitioner's father retired on 31.3.1991 from the post of Office Superintendent, District Education Office, Bharatpur and was getting pension vide PPO No. 46046 till he died on 12.2.2011. Petitioner's mother died earlier on 11.9.2006 and petitioner's father had nominated the petitioner, his only son, totally blind since birth for family pension. Medical Board has also certified the petitioner as 100% blind since birth vide (Annexure-1) dated 23.10.2010. It is also stated in the writ petition that petitioner is facing miseries and starvation without any assistance being unable to earn himself. 4. Learned counsel submits that petitioner, being one of the nominee and a disabled person, is entitled for family pension. Further submission of the learned counsel for the petitioner is that in proviso to Rule 67 of the Rules of 1996, there is a Specific & General Mention of Disability therefore, General Mention of Disability in the definition of the "disability" given in Section 2 (i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as `the Act of 1995') will apply in the instant case. 5. Learned counsel for the respondents-State submits that the petitioner is not covered by any of the categories prescribed under proviso to Rule 67 of the Rules of 1996 for grant of family pension. 6. I have gone through the record of the writ petition and further considered the aforesaid submissions of the counsel for the parties. 7. Before proceeding further, it is necessary to reproduce Section 2(i) of the Act of 1995. The same is as under: "2(i) "disability" means- (i) blindness; (ii) low vision; (iii) leprosy- cured; (iv) hearing impairment; (v) locomotor disability; (vi) Mental retardation; (vii) mental illness;" 8. Rule 67 of the Rules of 1996, upon which learned counsel for the petitioner has relied, is also reproduced as under: "67. The same is as under: "2(i) "disability" means- (i) blindness; (ii) low vision; (iii) leprosy- cured; (iv) hearing impairment; (v) locomotor disability; (vi) Mental retardation; (vii) mental illness;" 8. Rule 67 of the Rules of 1996, upon which learned counsel for the petitioner has relied, is also reproduced as under: "67. Condition of grant The family pension shall be admissible to- (a) a widow/widower, up to the date of death or remarriage, whichever is earlier; [(b) unmarried son till he attains the age of twenty five years or on earning a monthly income exceeding Rs. 2550/-; (c) daughter including widowed/divorced daughter till she attains the age of 25 years or on earning a monthly income exceeding Rs. 2550/- per month or upto the date of her marriage/re-marriage, whichever is earlier; (d) parents who were wholly dependent upon the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child and the income of parent is not more than Rs. 2550/- per month or upto the date of her marriage/re-marriage, whichever is earlier; (d) parents who were wholly dependent upon the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child and the income of parent is not more than Rs. 2550/-.] Provided that if the son or daughter of a Government servant is suffering from any disorder or disability of mind or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty five years, the family pension shall be payable to such son or daughter for life, subject to the following conditions, namely,- (i) If there are more than one such children suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him/her ceases to be eligible; (ii) before allowing the family pension for life to any such son or daughter, the sanctioning authority shall satisfy that the handicap is of such a nature so as to prevent him or her from earning livelihood evidenced by a certificate obtained from a medical officer not below the rank of Chief Medical & Health Officer/Medical Jurist setting out, as far as possible, the exact mental or physical incapacity; and (iii) the person receiving the family pension as natural/legal guardian of such son or daughter or such son or daughter not receiving the family pension through the guardian, shall produce every three years a certificate from a medical officer not below the rank of Chief Medical & Health Officer/Medical Jurist to the effect that he or she continues to suffer from disorder or disability of mind or continues to by physically crippled or disabled. Explanations: [(1) A son/daughter shall become ineligible for family pension from the date he/she gets married or on earning a monthly income exceeding Rs. 2550/- per month. Explanations: [(1) A son/daughter shall become ineligible for family pension from the date he/she gets married or on earning a monthly income exceeding Rs. 2550/- per month. He/she will be required to produce six monthly a certificate regarding marital status and an annual certificate regarding monthly income.] (2) In such a case, it shall be the duty of the natural/legal guardian or daughter, to furnish a certificate to the Treasury or Bank, as the case may be, every year that she has not yet married. (3) Family pension to an eligible Government servant/pensioner is payable in addition to his/her pay or pension, in cases where both husband and wife are Government servants." 9. On considering the aforesaid submissions of learned counsel for the parties and the provisions of the Rules of 1996 and the Act of 1995, I am of the view that son or daughter of a government servant suffering from specific disabilities prescribed in proviso to Rule 67 of the Pension Rules of 1996 has been made entitled for family pension. However, there is a general mention of disabled son or daughter in the proviso 67 to the Rules of 1996 to earn a living. The disability has not been defined in any other rule relating to grant of family pension. Since there is a general mention of disability to earn a living in proviso to Rule 67 of the Rules of 1996, it would be appropriate to take the definition of disability mentioned in the Act of 1995 wherein the blindness has been included in the definition of disability. The definition of disability prescribed by the central legislation in the Act of 1995 will apply while considering the case of disabled son or daughter so as to render him or her unable to earn a living, therefore, the said definition of disability prescribed in Section 2 of the Act of 1995 will apply while interpreting the said term "disabled so as to render him or her unable to earn a living under Proviso 67 to the Pension Rules of 1996." 10. In view of above, the writ petition is allowed and the petitioner is entitled to the grant of family pension under the Rules of 1996. In view of above, the writ petition is allowed and the petitioner is entitled to the grant of family pension under the Rules of 1996. The respondents are directed to make the payment of family pension to the petitioner alongwith arrears within a period of one month from the date of receipt of this order, failing which the petitioner shall also be entitled for interest at the rate of 9% per annum.