GUNVANTBHAI DAHYABHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition invoking Articles 226 and 227 of the Constitution is filed by a disabled son of the mother who passed away as a pensioner on 5.8.2004 after making an application for family pension for her son on the ground that the petitioner-son was a handicapped person since his childhood. The mother of the petitioner had served under respondent No.3 as a Principal and was in receipt of regular pension since her retirement in the year 1984. The application of the petitioner for family pension was turned down on the basis of a report of the Deputy Chief Accountant (Pension Department) of respondent No.2 that the benefit of family pension could not be granted in cases of pensioners who had retired before 6.10.1999.

(2.) The petitioner has relied upon the Resolution dated 6.7.1989 of the State Government (Annexure-A to the petition), according to which, the Family Pension Scheme, 1972 was introduced for the benefit of the employees' widow/widower and failing the claim of widow, a minor son or an unmarried minor daughter was entitled to get family pension upto the age of 21 years and 30 years respectively. The Government of Gujarat, by the said Resolution dated 6.7.1989, decided that, if the son or daughter of a government servant was suffering from disorder or disability of mind etc., or was physically crippled, or disabled so as to render him or her unable to earn a livelihood even after attaining the age of 21 years in the case of son and 30 years in the case of daughter, such case should be considered individually on merits and family pension should be granted to such son or daughter for life-time subject to fulfillment of the conditions. One of the conditions is that, as and when the disability which makes him or her unable to earn his or her livelihood manifests itself, that fact should be brought to the notice of the Head of the Office, and such intimation should be duly supported by a medical certificate from a Medical Officer, not below the rank of Civil Surgeon. This has to be indicated in Annexure-I Part-II to the G.R.F.D.No.NVN-1081-2761-P dated 26.11.1981 by the Head of the Office. As and when the claim for family pension arises, the legal guardian of the child has to make an application supported by a fresh medical certificate from a Medical Officer, not below the rank of Civil Surgeon, stating that the child still suffered from the disability. Before allowing family pension for life to any such son or daughter, the sanctioning authority has to satisfy itself that the disability is of such a nature as to prevent him or her from earning his or her livelihood and the same has to 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. By way of explanation, it is clarified that only the disability which manifests itself before the retirement or death of the government servant while in service shall be taken into account for the purpose of grant of family pension and such pension has to be stopped if he or she starts earning his or her livelihood. The resolution was to take effect from 1.4.1989.

(3.) By filing an affidavit of the Deputy Chief Accountant, respondent No.2 has raised the objection that the petition filed by the petitioner in his own capacity was not maintainable and the aforesaid Resolution dated 6.7.1989 would have no application since the benefits were to be granted with prospective effect and the mother of the petitioner had retired on 31.8.1984 before the said resolution.