Court No. - 34
Case :- WRIT - A No. - 11979 of 2020 Petitioner :- Maya Devi Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Kamal Kumar Kesherwani Counsel for Respondent :- C.S.C.,Yogendra Singh Bohra
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner, Sri Awadhesh Kumar, learned counsel representing the Basic Education Officer and Sri Birendra Pratap Singh, the learned Standing Counsel for the State respondents.
The sole grievance addressed in this petition is for the release of gratuity in light of the services rendered by the husband of the petitioner. Learned counsel for the petitioner contends that although no formal order has been passed, the petitioner has been informed that gratuity has not been released on the basis that her husband had not exercised the option to receive the same prior to attaining the age of superannuation.
Before this Court, it is not disputed that the said issue has been settled in favour of the petitioner in light of the judgment rendered by a learned Judge in Usha Rani Vs. State of U.P. And 6 Others[ Writ -A No. 17399 of 2019 decided on 12.12.2019].
Dealing with the issue of a failure of an employee working in the Basic Education department to exercise an option to receive gratuity prior to retirement and its impact on entitlement to gratuity, the learned Judge in Usha Rani held as follows:-
"Heard learned counsel for the petitioner, learned standing counsel for respondent Nos. 1, 2 & 3 and Sri Chandan Agarwal, learned counsel for respondent Nos. 4 to 7.
Present petition has been filed against the order passed by respondent No. 7- Block Education Officer Block Kadarchauk, District Badaun in terms of which the claim of petitioner for gratuity has been rejected on the ground that daughter of petitioner has not given option for retirement at the age of 60 years, therefore, not entitled for gratuity.
Learned counsel for the petitioner submitted that daughter of petitioner was initially appointed as Assistant Teacher on 4.12.1999 and joined his services on 7.12.1999 in Primary School, Mallamai, Badaun. Unfortunately, daughter of petitioner died during the course of service on 28.8.2018. After the death of her daughter petitioner applied for terminal dues. The amount of gratuity was refused on the ground that her daughter has not filled up option for retirement at the age of 60 years. It is further submitted that as per Government Order dated 16.09.2009, petitioner's daughter is fully entitled for gratuity even in case if he has not given option for retirement at the age of 60 years, therefore, the order impugned is wholly arbitrary, inasmuch as under the relevant scheme of payment of gratuity, the claim of petitioner's daughter is covered and the Government Order dated 16.09.2009 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.
In support of his contention, he has placed reliance upon several judgments of this Court as well as Lucknow Bench of this Court passed 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. He next submitted that this 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.
On the other hand, learned standing counsel as well as Sri Chandan Agarwal, learned counsel for respondent Nos. 4 to 7 submitted that denial of gratuity of petitioner's husband is in accordance with Government order, therefore, there is no illegality in the impugned order, but could not dispute the aforesaid fact.
I have considered the rival submissions raised by counsel for the parties and perused the record as well as judgments relied upon.
Similar issue was considered by this Court in the matter of Noor Jahan (Supra) in which this Court vide order dated 04.01.2018 has clearly held that Government Order dated 16.09.2009 does not provide any bar for payment of gratuity in case petitioner's husband had not given option for retirement at the age of 60 years. Relevant paragraphs of the said judgment is quoted below:-
"Learned counsel for the petitioner submits that the order impugned is wholly arbitrary, inasmuch as under the relevant scheme for payment of gratuity, the claim of petitioner's husband is otherwise covered, and the Government Order dated 16.9.2009 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.
Sri R.B. Yadav, learned counsel for the respondent nos.3 and 4, submits that the denial of gratuity to petitioner is in accordance with the Government Order.
I have heard learned counsel for the parties, and have perused the materials brought on record.
Government Order dated 16th September, 2009 provides for revision of pension and other retiral benefits to the retired employees of the department of basic education. This Government Order grants higher benefits w.e.f. 1.1.2006. Clause 4(1) of the Government Order provides that pension would not be payable to those employees, who have not completed 10 years of qualifying service, but the employees who retire upon attaining the age of superannuation of 60 years would be entitled to gratuity and other service benefits. The Government Order does not restrict payment of gratuity to an employee, who is otherwise covered under the scheme just because he has not attained the age of 60 years. Reference to age of 60 years is due to fact that age of superannuation under the rule is otherwise 60 years. Position has otherwise been clarified by Clause 5 of the Government Order, which provides that gratuity would be payable at the age of 60 years or upon death. The respondents, therefore, were not justified in rejecting petitioner's claim for payment of gratuity, in terms of Government Order dated 16.9.2009. The impugned action, therefore, cannot be sustained. Order dated 8.7.2016 is, accordingly, quashed.
A direction is issued to the respondents to compute the amount payable to petitioner's husband towards gratuity in terms of the scheme and release the same, within a period of three months from the date of production of certified copy of this order. The petitioner shall also be entitled to interest at the rate of 8% per annum, from the date of filing of the application till the amount is actually disbursed.
Writ petition is, accordingly, allowed."
In view of the aforesaid, it is submitted that the claim of the petitioner for release of gratuity, shall be considered in accordance with law and bearing mind the judgment of the Court rendered in Usha Rani.
Accordingly and with the consent of parties, this petition shall stand disposed of with a direction to the Basic Education Officer to examine the claim of the petitioner for release of gratuity. The aforesaid claim shall not be rejected solely on the ground that the option was not exercised prior to attaining the age of superannuation in light of the judgment of the Court rendered in Usha Rani. It is further directed that a final decision in respect thereof shall be taken and communicated by the Basic Education Officer within a period of two months from the date of presentation of a duly authenticated copy of this order.
Order Date :- 28.7.2021 Vivek Kr.