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TMI Blog2008 (3) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... book and a copy of the death certificate of his father. 4. It is asserted by the petitioner that he is 55% physically handicapped and he is fully dependant on his elder brother after the demise of his father. It is contended that during the lifetime of his father also he was dependent upon him and he is unable to earn his living. The petitioner has produced the disability certificate issued by All India Institute of Medical Sciences certifying that he has 55% disability of both lower limbs. Petitioner pleaded that though he is 10th Class pass but he could not continue due to illness as he had T.B of hip joints and he became physically handicapped of both lower limbs. He is stated to be unable to do any kind of physical job and was always dependant on his father who was an employee of respondent Railways. The petitioner has also produced the old record pertaining to his illness, T.B of hip joints making him disabled. 5. The petitioner contended that in the family pension book all the documents relating to the pension of the father of the petitioner were prepared by the clerks of respondent No. 2 who had left the column pertaining to the dependants of the petitioner's father b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver it occurs in this rule shall be construed to include "less than one year of continuous service" as defined in Clause (b). (3). The amount of family pension shall be fixed at monthly rates and expressed in whole rupees and where the family pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee. Provided that in no case a family pension in excess of the maximum specified under this rule shall be allowed. (4).(i) (a)where a railway servant, who is not governed by the Workmen's Compensation Act, 1923 (8 of 1923), dies while in service after having rendered not less than seven years' continuous service the rate of family pension payable to the family shall be equal to fifty per cent of the pay last drawn or twice the family pension admissible under Sub rule (2), whichever is less, and the amount so admissible shall be payable from the date following date of death of the railway servant for a period of seven years, or for a period up to the date on which the deceased railway servant would have attained the age of sixty five (now sixty-seven) years had he survived, whichever is less. (b) In the event of death of a railway serva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (iii). In the case of an unmarried daughter, until she attains the age of twenty-five years or until she gets married, whichever is earlier: Provided that if the son or daughter, of a railway servant is suffering from any disorder or disability of mind (including mentally retarded) 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: (a). The family pension shall be paid to such son/daughter through the guardian as if he or she were a minor on the basis of guardianship certificate or the guardian appointed by a court except in the case of physically crippled son/daughter who has attained the age of majority. The spouse of the deceased pensioner/employee also allowed to furnish the details of the eligible children to the Pension Sanctioning Authority if such details were not furnished earlier. (b). Before allowing the family pension for life to any such son or daughter, the sanctioning authority shall satisfy that the handicap is of such, prevent him or her from earning his or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to twin children, the same shall be payable to such twin children in equal shares and in the event of any of such. 7. The Petitioner contended that under the relevant rule the family pension of the father of the petitioner is to continue in the name of the petitioner as he is a disabled son of the retired employee with permanent disability and is unable to earn his livelihood and, Therefore, he sent representations to the respondents dated 3rd April, 2001, 14th September, 2002 and 1st November, 2002 for grant of family pension to the petitioner after the death of his father on 25th December, 2000. On the representations made by the petitioner it was communicated to the petitioner by communication dated 4th October, 2002 that at the time of retirement, petitioner's father did not give in writing intimation about disability of petitioner though the disability certificate is dated 28th April, 1997. It was also communicated to the petitioner to submit all the relevant papers in compliance of letter dated 15th May, 2002. 8. After petitioner complied with the requirements under the rules, by another communication dated 18th November, 2002 the petitioner was intimated that in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner reiterated that he is entitled for family pension. 12. I have perused the petition, reply and the documents filed by the parties and have heard the learned Counsel for the parties at length. This is not disputed that the father of the petitioner was a Railway employee who retired after a long service from 2nd May, 1949 to 30th June, 1987. This also cannot be disputed that the name of the petitioner was mentioned in Form 6 which is the statement showing the details of the members of the family for the purpose of Family Pension Scheme, 1964 which is dated 9th May, 1987. The respondents in their letter dated 4th October, 2002 denied the family pension on the ground that the petitioner has not sent the relevant documents and since the father of the petitioner had not given any information in writing about the physical disability of the petitioner and as the certificate is dated 28th April, 1997 the petitioner is not entitled for the family pension. By said communication dated 4th October, 2002 the petitioner was, however, asked to comply with the requirement demanded by letter dated 15th May, 2002. The copy of the letter dated 15th May, 2002 has not been produced either b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons. 14. The orders dated 18th November, 2002 is rather crypt and the only reason given is that the father of the petitioner at the time of retirement had not given any information about the disability of the petitioner. No other ground was taken by the respondents at that time. The Apex Court in [1978]2SCR272 , Mohinder Singh Gill v. The Chief Election Commissioner had held that an orders cannot be supplemented by fresh reasons as otherwise an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. Consequently the respondents cannot validate their order on the grounds now raised in the counter affidavit filed on their behalf. The Supreme Court in Mohinder Singh Gill (supra) in para 8 page 417 had held: 8. ...that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision contained in the Pension Rules denying such family pension is constitutionally valid, had held that such provision denying the family pension is ultra virus Article 14 of the Constitution of India and cannot be sustained. The Apex Court had further held that the purpose for which the family pension is provided, is frustrated if children born after retirement are excluded from the benefit of the family pension and in the event of death of the Government servant such minor children would go without support. In another judgment , Bhagwanti Mamtani v. Union of India, the Apex Court had held that the benefit of the provision of the rule to a mentally disabled person cannot be denied on the ground of making such claim belatedly. The Apex Court had also held that any nomination made contrary to the statute denying the claim of the rightful person to get the family pension will not disentitle such person from family pension under the Pension Rules in : (1999)5SCC237 , G.L.Bhatia v. Union of India. Following the principles laid down by the Apex Court; it is Therefore, evident that the pension being payable on consideration of the past services rendered by the Government servant and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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