Court No. - 34
Case :- WRIT - A No. - 12579 of 2021 Petitioner :- Pushpa Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Kamal Kumar Kesherwani Counsel for Respondent :- C.S.C.,Bhola Nath Yadav
Hon'ble Yashwant Varma,J.
Heard learned counsel for parties.
Sri Bhola Nath Yadav, learned counsel appearing for the respondent nos.4 to 6 and Sri Birendra Pratap Singh, learned Standing Counsel fairly concede that the impugned order would not sustain bearing in mind the decision of the Court in Sushila Yadav Vs. State of U.P. and 5 Others [Writ - A No. -9105 of 2021, decided on 15 September 2021].
Dealing with right of the heirs of Assistant Teachers who claim gratuity even though no option in that respect may have been submitted by the employee prior to their untimely demise and reaching the age of superannuation, the Court held as follows:-
"It is in the aforesaid background that the Court now proceeds to consider whether the petitioners here can be denied the benefit of gratuity. Undisputedly the teachers and employees in the batch of these writ petitions died prior to attaining the age of superannuation. As per the stand and practice of the State consistently followed, they had a right to exercise an option up to one year prior to their retirement and by the first of July of the academic year in which the date of retirement was being reached. It is in the aforesaid light that the decision rendered in Usha Rani took the view that death being an unforeseen circumstance and an event which is clearly unpredictable could not have resulted in family members of those teachers being denuded of the right to claim gratuity. The submission which came to be accepted was that the respondents could not have presumed that a teacher had decided that he would continue upto 60 or 62 years. Indubitably death is a circumstance which is neither predictable nor is it an occurrence which can possibly be foreseen or anticipated.
Viewed in that light it would be wholly erroneous and irrational to hold that a teacher was liable to submit an option prior to his demise. The submission of an option to receive gratuity cannot legally be recognised as being attached to a circumstance which by its very inherent character is unforeseeable and incapable of being prophesized. Lastly, as was rightly held in Usha Rani and the various decisions noticed in that judgment, it would be wholly impermissible for the respondents to assume either that the teacher wished to continue beyond the age of 60 or 62 years or that he wished to forego gratuity merely because an option in that respect could not be submitted prior to their unexpected demise. Teachers while serving under the respondents would be presumed to be aware of the practice and requirement of submitting the requisite option one year prior to attaining the age of retirement coupled with the additional burden of ensuring that the option was submitted not later than the 1st of July of the academic year in which the teacher was to retire. If that was the recognised methodology consistently followed by the respondents, it would be wholly incongruous to recognise a responsibility placed upon teachers to submit that option prior to their untimely demise. On a more fundamental plane it must necessarily be stated that the State has failed to place for the consideration of the Court any prescription, statutory or otherwise, which may have drawn an inviolable line in time which when crossed was envisaged to denude a teacher of his right to claim gratuity.
It may only be observed that the State would have been justified in refusing a claim for gratuity in case a teacher had continued in service beyond the stipulated age of retirement and thereafter died while in service. For instance, in case a teacher has continued beyond the age of 58 or 60 years without exercising the requisite option, he would be deemed to have taken and derived benefit of the extended age of retirement. While serving under the respondents in that extended tenure the teacher may have been presumed to have decided to continue in service till the age of 60 or 62 years. However, in a case where death occurs prior to the teacher attaining the age of 58 or 60 years cannot reasonably merit an assumption being made that such a teacher wanted to continue up to the extended and increased age of retirement.
Viewed in light of the above, it is manifest that the decision in Usha Rani appears to have rightly taken the position that gratuity cannot be denied in a situation where a teacher dies prior to reaching the age of retirement and the death having occurred a year before the age of retirement was being reached. The various Government Orders which have been referred to by the respondents far from casting a shadow of doubt on the correctness of the judgment in Usha Rani buttress and support the conclusions recorded therein. For all the aforesaid reasons, the stand of the respondents that the petitioners here would not be entitled to gratuity consequent to a failure on the part of the deceased teacher having failed to exercise an option would not sustain."
In view of the aforesaid and in light of the reasons recorded therein, the writ petition is allowed. The impugned order dated 03 September 2021 is quashed and set aside. The matter shall stand remitted to the Basic Education Officer who shall consider the claim of the petitioner afresh bearing in mind the decision of the Court in Sushila Yadav. The exercise of consideration shall be concluded with expedition and preferably within a period of four months from today.
Order Date :- 23.9.2021 Vivek Kr.