# Mohd. Jamil v. Managing Director Kanpur Electricity Supply Co. (KESCO), Kanpur Nagar & Ors

- **Citation:** (2024) 7 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Writ A No. 3143 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-jamil-v-managing-director-kanpur-electricity-supply-co-kesco-kanpur-nagar-52268
- **Pages:** 4

## Headnote

A. Service Law - Family pension -
Entitlement of disable children of exemployee
-
Disability,
determination
thereof - C.M.O. issued the certificate
showing the petitioner 60% disable -
However, Committee did not treat the
petitioner as disable person on the basis
of some St.ment, wherein he admitted to
have run some PCO in past for his
survival, on the basis of which claim was
rejected
-
Validity
challenged
-
Committee, having no medical officer in
it, how far is competence to question on
certificate - GO dated 20.05.1997 relied
upon - Held, certificate issued by a Chief
Medical
Officer
could
have
been
questioned only by the penal of medical
officers in the field of orthopaedics,
otherwise one could not say that merely
because someone ran a business in the
past, may be he was a disabled, he
would not be entitled for family pension
- 60% physical disability is sufficient
enough for a person to hold him entitled
for family pension as a disabled who had
been dependent of his parents who later
died on 21.04.2013. (Para 8, 9, 10 and
11)

Writ petition allowed. (E-1)

## Text

7 All. Mohd. Jamil Vs. Managing Director Kanpur Electricity Supply Co. (KESCO), Kanpur Nagar
 & Ors.
67
14. Apart from above, this Court is
also not unmindful to the judgement and
orders rendered in case of Subhash
Chandra Sharma Vs. Managing Director
and another (1999 SCC OnLine All
1331), Shafat Ullah Vs. Commissioner,
Varanasi and others (2002 SCC OnLine
All 218), Sahngoo Ram Arya Vs. Chief
Secretary, State of U.P, Lucknow and
others (2002 SCC OnLine All 1566),
Ambika Prasad Srivastava Vs. State
Public Services Tribunal and others
(2005 (4) L.L.N 84), Yog Narain Dubey
Vs. Managing Director and Others (2011
SCC OnLine All 2414) and Chamoli
District Cooperative Bank Limited Vs.
Raghunath Singh Rana and Others
((2016) 12 SCC 204).

15. In view of the aforesaid
submissions and discussions, this Court is
of considered opinion that the whole
enquiry proceeding, including the final
punishment order vitiates in the eyes of
law.

16. Consequently, the writ petition
is hereby allowed.

17. The impugned orders dated
19.09.2023 and 04.08.2023 are hereby
quashed.

18. Further, liberty is also
accorded to the State-respondent to hold a
fresh enquiry, if so desires.
----------
(2024) 7 ILRA 67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 3143 of 2021

Mohd. Jamil ...Petitioner
Versus
Managing
Director
Kanpur
Electricity
Supply Co. (KESCO), Kanpur Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Ms. Usha Devi Singh

Counsel for the Respondents:
Sri Rajendra Kumar Misra, Sri Rajendra
Kumar Pandey, Ms. Usha Kiran

A. Service Law - Family pension -
Entitlement of disable children of exemployee
-
Disability,
determination
thereof - C.M.O. issued the certificate
showing the petitioner 60% disable -
However, Committee did not treat the
petitioner as disable person on the basis
of some St.ment, wherein he admitted to
have run some PCO in past for his
survival, on the basis of which claim was
rejected
-
Validity
challenged
-
Committee, having no medical officer in
it, how far is competence to question on
certificate - GO dated 20.05.1997 relied
upon - Held, certificate issued by a Chief
Medical
Officer
could
have
been
questioned only by the penal of medical
officers in the field of orthopaedics,
otherwise one could not say that merely
because someone ran a business in the
past, may be he was a disabled, he
would not be entitled for family pension
- 60% physical disability is sufficient
enough for a person to hold him entitled
for family pension as a disabled who had
been dependent of his parents who later
died on 21.04.2013. (Para 8, 9, 10 and
11)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Ms. Usha Devi Singh,
learned counsel for the petitioner, Ms. Usha
68 INDIAN LAW REPORTS ALLAHABAD SERIES
Kiran, learned counsel appearing for
respondents.

2. Petitioner who claims to be a
disabled person and totally dependent upon
the parents is aggrieved by the decision
taken by the Senior Accounts Officer,
Pension of the Kanpur Electricity Supply
Company Ltd. dated 12.11.2020 whereby
his claim for dependent/ family pension has
been rejected.

3. Learned counsel for the
petitioner has argued that under the
relevant Government Order issued by the
state government on 20.05.1997, disabled
persons have been made entitled to family
pension. Such disability can be physical or
mental but it should be of the nature that it
is difficult for the dependent to earn
livelihood for survival. It is submitted that
such disability pension to the dependents
for physical or mental disability is in the
nature of family pension and this is how the
erstwhile
Government
Order
dated
06.08.1981 has been amended to facilitate
this family pension.

4. It is submitted by learned
counsel for the petitioner that father of the
petitioner who was an ex-employee of the
respondent retired upon attaining age of
superannuation
on
31.05.1975
and
thereafter he died in the year 2003 and so
consequently the mother of the petitioner
started getting pension. Mother according
to the petitioner died later on 21.04.2013
and
resultantly
the
petitioner
being
dependent upon his mother made an
application
for
family
pension,
to
respondent on 07.05.2013. After petitioner
moved an application, he received a letter
from Senior Accounts Officer, Pension,
asking him to furnish medical certificate of
Chief Medical Officer or of an equivalent
medical officer regarding his physical
disability. After this letter was received by
the
petitioner
he
obtained
physical
disability
certificate
from
the
Chief
Medical
Officer,
Kanpur
Nagar
on
11.10.2013 and submitted the same before
the concerned respondent, namely, Senior
Accounts Officer on 14.10.2013.

5. Ms. Usha Singh Devi, learned
Advocate submitted that despite medical
certificate of the Chief Medical officer
submitted before the authority, the matter
was referred to a four member committee
constituted to examine the claim of the
petitioner and whereas the committee was
not equipped with any medical skill, nor
committee consisted of any medical officer,
it rejected the claim of the petitioner only
on the ground that at some point of time he
was running public call office (PCO) and
so he was able to earn and that the
petitioner was found to be physically
disabled
up
to
some
extent.
Thus,
according to her committee rejected the
petitioner's claim of disability and so his
claim for pension wholly illegally. As a
consequence to the decision taken by the
committee the Accounts Officer who was
one of the members of the committee
passed
an
order
dated
12.11.2020
impugned in the petition rejecting claim of
the petitioner.

6. Learned counsel for the
petitioner has argued that merely because at
the some point of time the petitioner ran a
PCO, petitioner was not a disabled person
and such a decision was bad for the reason
that none of the members of the committee
was
qualified
enough
to
reject
the
certificate of the Chief Medical officer. It is
submitted that as per the rules and the
relevant government orders, in every
government service and also for the
7 All. Mohd. Jamil Vs. Managing Director Kanpur Electricity Supply Co. (KESCO), Kanpur Nagar
 & Ors.
69
purposes of pension etc, it is the certificate
of the Chief Medical Officer or medical
officer of an officer of equivalent rank
which would weigh and not the decision of
unskilled persons or the committee which
has no medical officer on its panel. It is
argued that medical certificate issued by an
authorized officer can only be questioned
by a medical board or medical officer of
higher rank and not by administrative
officer like Deputy General Manager,
Senior Accounts Officer, Account Officer
or Assistant Accountant.

7. Per contra, defending the
decision taken by the authority, learned
counsel appearing for the respondents Ms.
Usha Kiran has sought to argue that if the
petitioner could have survived for so many
years if was able to run a PCO, such person
cannot be said to be a disabled person to
become entitled to family pension under
the relevant Government Order. However,
Ms. Ushan Kiran would not dispute that
none of the officers on the panel of the
committee had the requisite skill or
knowledge of the medical field so as to
dislodge the medical certificate issued by
the Chief Medical Officer. She would also
not dispute the argument advanced by the
learned counsel for the petitioner that in
government service and for all the official
purposes also so far the disability part is
concerned, medical certificate issued by the
Chief Medical Officer would matter and
not of any other officer. She would also not
dispute
that
no
medical
board
was
constituted to look into the correctness of
medical certificate issued by the Chief
Medical Officer, Kanpur Nagar certifying
the petitioner to be suffering from physical
disability due to Polio disease.

8. Having heard learned counsel
for the respective parties, having perused
the record and the order impugned, I find it
to be admitted position in the pleadings of
the parties that there is government order
issued on 20.05.1997 amending the earlier
government order dated 06.08.1981 making
disabled son and daughter of an exgovernment employee to be entitled to
family pension. This government order is
applicable to be department concerned and
therein also an admitted position to the
parties that petitioner upon been asked by
the Senior Accounts Officer, had furnished
disability certificate of Chief Medical
Officer, copy whereof has been brought on
record as annexure-8 to the petition. The
certificate showing the petitioner to be
suffering from 60% disability issued by the
Chief Medical Officer, Kanpur Nagar has
been brought on record as annexure-2.

9. These above documents have
not been disputed as such to have been
obtained either by fraud or forgery or have
been procured by the petitioner misleading
the Chief Medical Officer concerned. The
order impugned only records that petitioner
was
directed
to
appear
before
the
committee and that he admitted to have run
some PCO in past for his survival. It is on
account of this statement made that
committee came to conclude that petitioner
was able to survive and, therefore, would
not be treated to be a disabled person. The
provisions
of
circular
latter
of
the
Corporation dated 20.05.1999 has been
cited in which it had been provided that if a
person was not able to survive for his
disability, he would be entitled to family
pension. In my considered view, even if the
circular letter of the corporation is taken to
mean that a disable person should be such
that he would not be able to survive but for
family pension, the committee has not
returned any finding as to how the
petitioner would be surviving with 60%
70 INDIAN LAW REPORTS ALLAHABAD SERIES
disability. He might have operated some
PCO in the past but failed to continue with
the business and will be taken to be so only
on account of this disability. Disability if
disqualifies him to run a business, in my
considered view, is sufficient enough to
prove that such a disabled person deserves
family pension.

10. I find merit in the submissions
advanced by learned counsel for the
petitioner that the committee constituted
with four persons had no medical officer on
its
panel
to
question
the
disability
certificate issued by the Chief Medical
Officer. Even in the counter affidavit, there
is no such pleading that certificate was
obtained by fraud or forgery or procured
for the purpose of obtaining the family
pension. Certificate issued by a Chief
Medical
Officer
could
have
been
questioned only by the penal of medical
officers in the field of orthopaedics,
otherwise one could not say that merely
because someone ran a business in the past,
maybe he was a disabled, he would not be
entitled for family pension. This analogy
given and findings arrived at by the
committee constituted for the said purpose
and the order of Senior Account Officer is
clearly unsustainable.

11. The matter could have been
remanded, had the respondent questioned
the medical certificate by appointing a
medical officer or medical board having
knowledge of the field concerned. This
respondent having not done, I do not find
there to be any reason not to believe the
physical disability certificate issued by the
Chief Medical Officer. The Government
Order is very clear on the point and 60%
physical disability is sufficient enough for a
person to hold him entitled for family
pension as a disabled who had been
dependent of his parents who later died on
21.04.2013.

12. In view of the above the writ
petition succeeds and is allowed. The order
dated 12.11.2020 whereby his claim for
dependent/
family
pension
has
been
rejected is hereby set aside.

13. Respondents are directed to
accord family pension to the petitioner.
Appropriate orders be passed by the
competent authority within a period of one
month from the date of presentation of
certified copy of the order.
----------
(2024) 7 ILRA 70
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 4763 of 2024

Purushottam Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ravindra Kumar Yadava, Ram Suphal

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

A. Service Law - Post of Panchayat
Sahayak
-
GO
dated
25.07.2021
-
Paragraph
no.
10
(vii)
and
16
-
Engagement on contractual basis by Gao
Sabha - After about two and half years,
the
petitioner
was
restrained
from
functioning - Validity challenged - No
show cause notice as required under Para
16 was issued - Effect - Paragraph no. 10
(vii) provides for service up to a maximum
period of two years and paragraph no. 16