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2017 DIGILAW 504 (GAU)

Siw Prasad Gowala v. State of Assam

2017-04-26

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Mr. A. Das, learned counsel for the petitioner. Also heard Mr. U.K. Nair, learned' Senior counsel, appearing for respondent No. 4, Mr. S.K. Ghosh, learned Standing counsel, Education (Secondary) Department, Mr. K. Gogoi, learned Standing counsel, Education (Higher) Department. None appears for the Accountant General, Assam. By this writ application under Article 226 of the Constitution of India, the petitioner prays for a writ of mandamus directing the respondents to release life time family pension to the petitioner. 2. The case of the petitioner is that his father, Late Ganapatha Gowala, who was a Chowkidar cum Peon of Jagomohan Vidyapith at Golokganj, in the District of Dhubri, Assam, superannuated on 31.10.89 and he started receiving provisional family pension with the issuance of Pension Payment Order (PPO) on 26.08.1992. The petitioner's father expired on 11.02.1993 and, after the demise of his father, family pension was granted to the petitioner's mother, Gul Jharia Gowala, and she continued to receive provisional family pension till 31.12.1995. Gul Jharia Gowala also expired on 17.02.1996. Annexure-D letter dated 30.08.2001 show that family pension had been finalized and that Family Pension, DCRG Life time Arrear Pension, etc. were paid to the petitioner in respect of Ganapatha Gowala. 3. The case of the petitioner is that he suffers from 50% disability and a certificate was issued, on the basis of examination conducted by the District Medical Board on 26.03.2004, by the convener of the District Medical Board, Dhubri, and District Social Welfare Officer, Dhubri, to the effect that he is disabled to the extent of 50%. 4. The Inspector of Schools, Dhubri District Circle, addressed a letter dated 4.8.2004 to the Directorate of Pension, whereby an application filed by the petitioner for grant of life time family pension was recommended. As nothing had materialized in the intervening period, the petitioner is before this Court by filing this writ application. 5. Mr. Das has submitted that the petitioner is a disabled person since his birth and in view of the medical certificate demonstrating 50% disability, the petitioner is entitled to life time family pension. 6. Mr. Nair has submitted that the petitioner is not entitled to life time family pension in view of the provisions contained in Rule 143 of the Assam Services (Pension) Rules, 1969 (for short, "Pension Rules"). 6. Mr. Nair has submitted that the petitioner is not entitled to life time family pension in view of the provisions contained in Rule 143 of the Assam Services (Pension) Rules, 1969 (for short, "Pension Rules"). He contends that it is not the degree of disability that will determine as to whether a person is entitled to life time family pension, but the determining factor is whether because of such disability the person is not in a position to earn a livelihood. Judged by that yardstick, it is contended by him, that the petitioner falls short of the requirement to enable him to get life time family pension. 7. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 8. Rule 143 -C holds the field for determination of the adjudicatory process and, therefore, it will be appropriate that the relevant portion of Rule 143 of the Pension Rules, namely, Rule 143-C (1), (2) and 2(iv) as also 3(a) are extracted below: "143-C (1) This rule shall apply to pay life time family pension to the handicapped sons/daughters of Government servants who retired/died while in service. (2) 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 18 (eighteen) years in the case of the son and 21 (twenty one) years in the case of the daughter, the family pension shall be payable to such son or daughter for life subject to the following conditions, namely - (i) *** *** *** (ii) *** *** *** (a) *** *** *** (b) *** *** *** (iii) *** *** *** (iv) before allowing the family pension for life to any such son or daughter, the appointing authority shall satisfy that the handicapped is of such a nature so as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible, the exact mental or physical condition of the child; (v) *** *** ***" (3) Explanations: (a) only that disability which manifests itself before retirement or death of the Government Servant while in service shall be taken into account for the purpose of grant of family pension under this rule. (b) *** *** *** (c) *** *** *** (d) *** *** ***" 9. An analysis of the aforesaid provisions goes to show that life time family pension is payable to handicapped sons or daughters of Government servants who retire/die while in service if such son or daughter of the 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 livelihood even after attaining the age of 18 years in case of son and 21 years in case of daughter. One of the conditions precedent for grant of life time family pension to any such son or daughter is that the appointing authority has to be satisfied that the physical disability or mental disorder is of such a nature that it prevents him/her from earning his/her livelihood and that the same shall be evidenced by a certificate from a medical officer not below the rank of Civil Surgeon. Furthermore, only that disability which had manifested itself before retirement or death of the Government Servant while in service shall be taken into account for the purpose of grant of family pension. 10. The pleadings offered by the petitioner do not indicate, even by way of remote inference, that the petitioner, who is a person aged about 60 years, is unable to earn his livelihood. The entire edifice of the claim staked by him is founded on the premise that he is disabled to the extent of 50%. Assuming that the petitioner is disabled to the extent of 50% that, per se, does not entitle him to get life time family pension the certificate relied upon Mr. Das does not indicate as to what kind of disability the petitioner suffers from. That apart, there is no medical certificate which is brought on record demonstrating that even during the life time of the father of the petitioner, the petitioner had any such disability. In that view of the matter, I am of the considered opinion that no case is made out for grant of life time family pension to the petitioner and, taking that view, the writ petition is dismissed. No cost.