Regular Second Appeal No.845 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-20.7.2010 State of Punjab and others ...Appellants Versus Harpreet Singh son of Taranjit Singh Sawhney ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Manohar Lall, Addl.Advocate General, Punjab for the appellants. Mr.S.K.Sharma, Advocate for the respondent M ehinder S ingh S ullar , J. (Oral) Tersenessly, the facts, relevant for disposal of the present appeal and emanating from the record, are that Harpreet Singh son of Taranjit Singh Sawhney respondent--plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit for a decree of declaration to the effect that he and his wife Mamta are deaf and dumb, unable to earn their livelihood and are entitled to family pension after the death of his (plaintiff) father as per Punjab Civil Service Pension Rules (for brevity “the relevant rules”). 2. The case set up by the plaintiff, in brief, in so far as relevant, was that his mother has already expired and his father Taranjit Singh Sawhney has retired as Section Officer from the office of Examiner, Local Funds Accounts, Sector 17, Chandigarh on 31.3.2004. It was claimed that the Deputy Director, Examiner, Local Funds Accounts recommended the case of the plaintiff to the Civil Surgeon, Patiala, vide Memo dated 6.4.2004. Keeping in view the extent of permanent disability, the Civil Surgeon, Patiala recommended his case to the Examiner, Local Funds Accounts, Punjab, Chandigarh, vide Memo No.671 dated 19.4.2004 attaching his disability certificate. Concisely, according to the plaintiff, Regular Second Appeal No.845 of 2010 2 he and his wife are deaf and dumb and are unable to earn their livelihood. Therefore, he is entitled to family pension as per rules, but the defendants have rejected his claim without any legal basis. The plaintiff has challenged the action of the State of Punjab and its officers appellant-defendants (hereinafter to be referred as “the defendants”), inter-alia, on the following grounds:- i. that this is discriminatory in character and is hit by Articles 14 & 16 of the Constitution of India, ii. that this is confiscatory in character and is hit by Article 31 of the Constitution of India as it is settled law as per AIR 1966 SC page 282 that salary is a property, iii.that this is against principles of natural justice and is liable to be struck down as per AIR 1967 SC Page 1269 wherein it has been laid down that if an administrative order which has got civil consequences must be passed, after adhering to the principles of natural justice, iv.that under the rules aforesaid the plaintiff is entitled to family pension after the death of his father retiree, v. that this is a case of abuse of powers which tantamounts to malafide and is liable to be struck down as per AIR 1964 page 72, vi.that this is arbitrary and capricious and is contrary to all cannons of law and justice, vii.that this is against the rules and regulations governing the services of the plaintiff's father. 3. On the basis of the aforesaid grounds, the plaintiff filed the present suit seeking a decree of declaration against the defendants, in the manner indicated here-in-above. 4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi and cause of action of the plaintiff. According to the defendants, the plaintiff is only entitled to family pension if it is proved that he was suffering from disorder or disability of mind or is physically crippled or disabled so as to render Regular Second Appeal No.845 of 2010 3 him or her unable to earn livelihood even after attaining the age of 25 years. However, it was admitted that as per medical certificate, the plaintiff is deaf, mute and is unable to earn his livelihood. The request of Taranjit Singh Sawhney for grant of family pension to his son after his death was rejected by the department. Succinctly, the defendants claimed that since Taranjit Singh Sawhney, father of the plaintiff, is alive and is getting pension, so, the suit filed by him (plaintiff) is premature and he is not entitled to any relief. Hence, they (defendants) prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of the pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 7. Although, the trial Court noticed the disability of the plaintiff to the extent of 80% and of his wife Mamta, to the extent of 100%, but still dismissed his suit, vide judgment and decree dated 18.10.2008. 8. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal, which was accepted by the Ist Appellate Court, vide impugned judgment and decree dated 14.11.2009. 9. The appellant-defendants did not feel satisfied with the impugned judgment and decree of the Ist Appellate Court and filed the present appeal. 10. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 11. However, the main arguments of the learned counsel for the defendants that since the plaintiff is not proved to be qualified to the family pension and he cannot claim the same during the life time of his father under the Regular Second Appeal No.845 of 2010 4 Pension Rules, so, he is not entitled for a decree of declaration sought for by him, are not only devoid of merit but misplaced as well. 12. As is evident from the record, the plaintiff filed a simple suit for declaration that he is entitled to the pensionary benefits, being deaf and dumb after the death of his father. Proviso to Rule 6.17(4) of the Rules postulates that “if the son or unmarried daughter of a government employee 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 25 years, family pension shall be payable to such son or daughter for life.” The Ist Appellate Court has dealt with this matter as under:- ``Arguing on this fact the Ld. counsel for the appellant has argued that as per Ex.P2 the name of the appellant is to be included in the pension pay order of his father. Ex.PA is the pension papers of Sarwan Singh, who has been granted this benefit. Ex.P3 is the letter of the State Government to Civil Surgeon, Patiala regarding handicapness of Harpreet Singh and his wife Mamta and the State has asked the Civil Surgeon, Patiala that the handicapness is 80% and 100% and whether they can do any work or not. The Civil Surgeon, Patiala has replied to the State Government that regarding the earning of the livelihood the State is to decide that they have given disability certificate. This letter is Ex.P4 on the record. Ex.P5 is another letter of the State to the Civil Surgeon, Patiala that they should report that whether the appellant and his wife are able to do any work. Ex.D1 is the identity card of the appellant Harpreet Singh where he is 80% handicapped. The medical certificate of his wife that she is handicapped to the extent of 100% on the record. Ex.D2 is the Instructions regarding giving of job to the handicapped persons. From this, it is amply proved on the record that appellant is a handicapped person having 80% of disability and his wife is having 100% disability. As such the Government was to decide whether family Regular Second Appeal No.845 of 2010 5 pension is to be given to them which they have not done so. As per the government instructions the Civil Surgeon, Patiala has given a disability certificate that he is 80% handicapped and his wife Mamta is 100% handicapped. As such after the death of the father of appellants i.e. Tranjit Singh Sawhney, Harpreet Singh s/o Taranjit Singh Sawhney shall be entitled to family pension in view of his being disables to the extent of 80%. This fact is to be recorded in the pension pay order and the father of the appellants Harpreet Singh i.e. Taranjit Singh Sawhney. The findings of the ld.lower Court on issue No.1 as such are incorrect and set-aside. The appellants, as such are entitled to the declaration as prayed for in view of the Instructions of the respondents State. Appellants as such have got a cause of action and their suit is maintainable in the present form. Appeal as such of the appellants is accepted” 13. It is not a matter of dispute that the permanent disability of the plaintiff to the extent of 80% and of his wife to the extent of 100% is proved on the record. Once it is proved that the plaintiff and his wife were suffering from permanent disability to the extent of 80% and 100% respectively, then it cannot possibly be saith that they are able to earn their livelihood. In that eventuality, the plaintiff is entitled to the family pension as contemplated under Rule 6.17(4) of the Rules after the death of his father. 14. As regards the next contention of the learned State counsel that the plaintiff is not entitled to the family pension during the life time of his father, in this respect, the Ist Appellate Court did not order the defendants to pay the family pension forthwith, but only directed them to incorporate this fact in the pension pay order of his father on the basis of equality and parity of pension case (Ex.PA) of Sarwan Singh, so that the plaintiff, who is deaf and dumb, may not be left in lurch in this respect after the death of his father. Thus, the contrary arguments of the learned counsel “stricto sensu” deserve to be and are hereby repelled under the Regular Second Appeal No.845 of 2010 6 present set of circumstances. 15. Therefore, I am of the view that the Ist Appellate Court, after having scanned the admissible evidence in relation to the relevant rules and pleadings of the parties, has recorded the indicated finding of fact in a right perspective. Such findings based on the evidence, cannot possibly be interfered with by this Court, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant- defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Ist Appellate Court, in this regard. 16. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgment and decree of the Ist Appellate Court as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of the aforementioned reasons, as there is no merit, therefore, the present appeal is hereby dismissed. (Mehinder Singh Sullar) 20.7.2010 Judge AS