Hon'ble Sanjay Kumar Pachori,J.
As per the report of Stamp Report Delay Condonation Application is not required, hence no order is required to be passed on the Delay Condonation Application Heard Shri Amit Shukla, learned counsel for the appellants and Shri K.K. Kesharwani, learned counsel for respondent no.1.
The appellants are assailing the validity of order dated 01.09.2020 passed by learned Single Judge of this Court in Civil Misc. Writ Petition no.4769 of 2020 (Raj Kumari vs. State of U.P. and others), whereby, the writ petition preferred by the petitioner-respondent has been allowed by placing reliance on the order dated 07.11.2019 passed in Writ A no.17399 of 2019 (Usha Rani vs. State of U.P. and others). For ready reference, the order impugned dated 01.09.2020 is extracted as under:-
"The present petition has been filed seeking a direction upon the respondents to pay Gratuity to the petitioner, which remained unpaid.
The contention of the counsel for the petitioner is that the husband of the petitioner was initially appointed as Assistant Teacher on 22.2.1991 and was promoted as Assistant Teacher, Upper Primary School on 27.7.2006, however he died in harness on 9.4.2010 before reaching the age of 60 years of superannuation. The contention of the counsel for the petitioner is that in terms of the Government Order dated 16.9.2009, Clause 5, the petitioner is entitled to Gratuity. The contention of the respondents in the counter affidavit is that prior to the death of the husband of the petitioner, the option was not given for his retirement at the age of 60 years. Thus, the contention of the counsel for the petitioner is that the admitted case is that the petitioner died in harness prior to the date of superannuation at the age of 60 years. He relies upon a judgment of this Court in Writ-A No. 17399 of 2019 (Usha Rani Vs. State of U.P. and Others), wherein the entire scope of the Government Order was considered.
Considering the fact that the issue is no more alive in view of the specific decision of this Court in Writ-A No. 17399 of 2019 that the gratuity would be payable to the employees, who died while in service and following the same it is clear that the petitioner would be entitled for release of the gratuity payable in terms of the Government Order dated 16.9.2009.
Accordingly, the writ petition is allowed following the judgment of this Court in the case of Usha Rani (Supra). the petitioner shall be paid the gratuity to which the husband of the petitioner was entitled as expeditiously as possible, preferably within a period of three months from the date of filing of the application along with a copy of the order downloaded from the official website of this Court, which shall be treated as certified copy of this order."
Learned counsel for the appellants has placed reliance on the Government Order dated 23.11.1994 and 10.06.2002 and submits that all the teachers and non-teaching staff of aided non government and the school run and managed by the U.P. Basic Shiksha Parishad, the concerned employee who has given an option of retirement at the age of 58 years, shall be entitled for the gratuity and in case of non submission of the option, it shall be deemed that the concerned teacher/employee is not willing to opt the facility provided by the said government orders. The said Government Orders were not before the Court while passing the order impugned. He submits that the deceased employee has not exercised the said option and as such, his case is not liable to be considered.
On the other hand, learned counsel for petitioner-respondent has placed reliance on the order dated 19.01.2021 passed in Special Appeal Defective no.43/2021 (State of U.P. and others vs. Veeramwati and another), wherein, the judgement and order dated 08.10.2020 has been placed under challenge and the appeal was dismissed by placing reliance in the case of Smt. Sarvesh Kumari vs. State of U.P. and others decided on 14.05.2019, in the leading case of Smt. Ranjana Kakkar vs. State of U.P. and others reported in 2008 (10) ADJ 63.
For ready reference, the order dated 19.01.2021 passed in Special Appeal Defective no.43/2021 is reproduced as under :-
"Order on Civil Misc. Delay Condonation Application Since the matter has been heard and decided on merits, the application for condonation of delay is not opposed by the counsel for the side opposite and accordingly it is accepted.
Delay in filing the appeal is condoned.
Accordingly the application is allowed as aforesaid.
Order on Exemption Application The application seeking exemption from filing certified copies of the order of the High Court is allowed.
The defect stands cured.
Let a regular number be given to this appeal.
Order on Appeal By this appeal, a challenge is made to the judgment dated 08.10.2020 whereby the writ petition preferred by the petitioner-appellants was allowed. The writ petition was ordered to governed by the judgment in the case of Smt. Sarvesh Kumari Vs. State of U.P. others decided on 14.05.2019 and also in the leading case of Smt. Ranjana Kakkar Vs. State of U.P. and others reported in 2008 (10) ADJ 63. In the case of Smt. Ranjana Kakkar (Supra) facts were almost similar.
As per the government order, the employees were given option to continue in service beyond the normal period of retirement. The extension of service was permitted from 58 years to 60 years but with denial of the benefit of gratuity.
Options were sought and given by the employees in case of Smt. Ranjana Kakkar (Supra), but is present case, no option was given by the non-appellant to continue him in service beyond the normal age of retirement with denial of the benefit of gratuity. It is however fact that in absence of option under the government order, it was taken to be a case of deemed option and accordingly family was denied benefit of gratuity. The age of the deceased was 52 years while in the case of Smt. Ranjana Kakkar (Supra), it was 45 years.
In the light of the aforesaid, what we find that the employee who had not continued in service after attaining the age of 58 years in a given case or 60 years in other cases would mean effective option to continue in with for denial of gratuity.
Accordingly, what we find that the present case is covered by the judgment of this court in the case of Smt. Ranjana Kakkar (Supra). An exception can be carved only when they continue in service without withdrawal of option even after the attaining the age of 58 years in a given case or beyond 60 years in other cases as normal age of retirement was changed from 58 years to 60 years by the amendment in the year 2004.
This court has taken a view to hold that an employee continue in service beyond 58 years and died thereupon would not be entitled to seek benefit of gratuity in the case of State of U.P. through its Secretary Vs. Prabha Shukla decided on 16.12.2020 but it would not be applicable to the facts of this case.
This appeal is accordingly, dismissed."
As per the Government Order 16.09.2009, the employees were given option to continue in service beyond the normal period of retirement. The extension of service was permitted from 58 years to 60 years but with denial of the benefit of gratuity. The said aspect has been considered in detail in catena of judgements of this Court in Writ-A No. 40568 of 2016 (Noor Jahan vs. State of U.P. and 4 others) decided on 4.1.2018, Writ-A No. 8679 of 2018 (Smt. Omwati Vs. State of U.P. and 3 others) decided on 9.3.2018, Writ-A No. 6049 of 2019 (Smt. Brijesh vs. State of U.P. and 5 others) decided on 26.04.2019 and Service Single No. 6173 of 2014 (Smt. Mala Tripathi vs. State of U.P. Through Prin. Secy. Secondary Edu. Lko. & Ors.) decided on 5.8.2019. The said controversy was again before this Court in Writ-A No. 14397 of 2019 (Renu Gupta Vs. State of U.P. and 5 others) in which the Court relying upon the aforesaid judgments allowed the writ petition vide order dated 24.10.2019.
While passing the order impugned, reliance has been placed upon Usha Rani (supra), wherein, the petitioner has been denied the benefit of gratuity on the ground that he has not given option for retirement at the age of 60 years. Relying on the judgement passed in Noor Jahan (supra), Smt. Omwati (supra) and Smt. Brijesh (supra), learned Single Judge of this Court in Usha Rani (supra) has asked the respondents to compute the amount payable to the petitioner's husband gratuity in terms of the scheme and release the same, maximum within a period of three months period within inter at the rate of 8% per annum, from the date of filing of the application till the amount is actually disbursed.
The dispute in hand has been considered by this Court in Smt. Ranjana Kakkar (supra) as well as Veeramwati (supra). The Court is of the considered opinion that the present case is squarely covered by the judgement of this Court in the case of Smt. Ranjana Kakkar (supra) and Veeramwati (supra). The Court does not find any infirmity or illegality in the order passed by the learned Single Judge.
The present appeal sans merit and the same is accordingly dismissed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the appellants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.1.2021 A. Pandey