Court No. - 34
Case :- WRIT - A No. - 7475 of 2018 Petitioner :- Santosh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vashishtha Tiwari,Kamal Kumar Kesherwani Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Learned Standing Counsel fairly concedes that the impugned order would not sustain in light of the judgment rendered in Sarvesh Kumari v. State of U.P. and others [2019(7) ADJ 357. In view thereof, he states that the ends of justice would merit the impugned order being set aside and the matter being remitted to the fifth respondent for taking a decision afresh. In Sarvesh Kumari, a learned Judge dealing with the claim of gratuity even though an option in that respect may not have been exercised before the employee retired, has held thus:
"6. The submission made by learned counsel for the petitioner has got considerable force. Since the option for retirement at the age of 60 years as per Government Order dated 17.2.1999 and at the age of 62 years as per Government Order dated 4.2.2004 could have been exercised till 1st of July of the academic year in which the retirement was due and which time had not arrived until the death of her husband on 27.2.2016, therefore, it is preposterous to suggest that he wanted to continue in service beyond the prescribed age of superannuation.
7. A Division Bench of this Court in Smt. Ranjana Kakkar Vs. State of U.P. and others, (2008) 10 ADJ 63 has held that the event of death of a person is an unforeseen circumstance which could not have been predicted by the person concerned. It has, therefore, been held that such an employee could not be presumed to have chosen to retire at a particular age much prior in time then the contingency arose for exercising the option. The claim of the petitioner for payment of death-cum-retirement gratuity in that case was found to be sustainable."
In view of the aforesaid, the Court is of the view that the instant writ petition must succeed.
Accordingly, the writ petition is allowed. The impugned order dated 09 February 2018, is hereby quashed and set aside. The matter shall stand remitted to the fifth respondent for considering the claim of the petitioner afresh. The fifth respondent shall ensure that a final decision is communicated with expedition and in any case within a period of two months from today.
Order Date :- 29.7.2021 Arun K. Singh (Yashwant Varma, J.)