SANJAY KUMAR DWIVEDI,J. - (1.) Heard Mr. Sanjay Prasad, learned counsel for the petitioner, Ms. Suchitra Pandey, learned counsel for the respondent-JSEB and Mr. Ansuman Kumar, learned counsel for the respondent-BSEB.
(2.) The petitioner has preferred this writ petition for quashing order dated 08.08.2009 whereby representation of the petitioner for family pension has been dismissed; and further prayer has been made for direction upon the respondents to provide family pension.
(3.) Learned counsel for the petitioner submits that the mother of the petitioner was in government service, who died in harness. In terms of the Pension Rules, the dependent of the government employee is entitled for family pension up-to the age of 21 years. Mr. Prasad, further submits that in view of Annexure 2, which is a certificate issued by the Civil Surgeon, it is clear that the petitioner is having disability of 75 %. He further submits that in the Pension Adalat, held by the respondent-Board, there were certain observations with regard to petitioner and it was observed that appropriate order may be passed by the concerned authority. Learned counsel for the petitioner further submits that the petitioner earlier approached this Court by way of filing W.P (S) No. 3368 of 2008, which was disposed of vide order dated 06.02.2009 with a direction to respondent-General Manager-cum-Chief Engineer, JSEB to decide the representation of the petitioner by passing reasoned and speaking order in accordance with law. Pursuant thereto, the petitioner submitted representation, which was rejected vide order dated 08.08.2009, which is impugned in this writ petition. Learned counsel for the petitioner submits that the impugned order passed by the General Manager-cum-Chief Engineer is not sustainable in the eye of law, as the said authority on its own finding came to the conclusion that the petitioner is having the problem of hearing and speech and in spite of that he has rejected the claim of the petitioner on the ground that due to such handicap the petitioner is not prevented from appointment/livelihood. Mr. Prasad, further submits that it is evident from Annexure 2 that the petitioner is having 75 % of disability on point of hearing and speech and as such the impugned order which has also taken cognizance of the fact that the petitioner is suffering from that disability is fit to be quashed and the petitioner is entitled for the family pension. He further draws attention of the Court to notification dated 03.09.1984 of the Finance Department, in particular Clause 2(i) and (iv), which is quoted herein below:' "(I).If such son or daughter is one among two or more children of the deceased Government servant, the family pension shall be initially payable to the minor children in the order set out in sub-clause (iii) of para (6) of this rule until the last minor child attains the age of 18 or 21, as the case may be, and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind or who is physically crippled or disabled and shall be payable to him/her for life; (ii).xxx xxx xxx (iii).xxx xxx xxx (iv).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 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 Civil Surgeon setting out, as far as possible, the exact mental or physical condition of the child;"? ;