Smt. Angoori Devi vs Regional Joint Director Of ...
2011 Latest Caselaw 6259 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 36
 

 
Case :- SPECIAL APPEAL No. - 1395 of 2006
 

 
Petitioner :- Smt. Angoori Devi
 
Respondent :- Regional Joint Director Of Education, Agra Region & Others
 
Petitioner Counsel :- P.N. Ojha,Ashok Khare
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Dinesh Gupta,J.

1.This Special Appeal is preferred against the judgement dated 03.10.2010 passed by the Single Judge in Writ Petition No. 29571 of 2002 (Smt. Angoori Devi Vs. Regional Joint Director of Education, Agra Region, Agra and others), whereby the writ petition has been dismissed.

2.The petitioner filed writ petition for the following reliefs:-

A writ, order or direction in the nature of certiorari quashing the order dated 10.06.2002 passed by the District Inspector of Schools, Mathura.

A writ, order or direction of suitable nature commanding the respondents to forthwith disburse the entire gratuity amount to the petitioner subsequent upon death of Chet Ram Sharma within a period to be specified by this Hon'ble Court along with interest thereon at the rate of 24% from 16.06.1998 till the date of actual payment per annum.

3.Petitioner's husband Chet Ram Sharma was employed as a permanent Assistant Teacher in L.T. Grade in Akrur Inter College, Chhata Mathura, which is a recognized and aided educational institution. He died at the age of 57 years without attaining 58 years of age. After his death, apart from other benefits, the petitioner is also entitled to received gratuity amount due to her deceased husband. However, the respondent authorities did not take any steps for disbursing the said gratuity. On the contrary, the dispute was raised by respondent to the effect that the petitioner's husband had opted to retire at the age of sixty years. According to the Government Order, the petitioner was not entitled to any gratuity and he could have received gratuity only in case if he had opted to retire at the age of fifty eight years. In fact that the petitioner's husband Sri Chet Ram Sharma submitted a form in which he gave an option to retire at the age of sixty years, which was dated 31.12.1990. The aforesaid option form after submission was to be accepted by the authorities. However, before its acceptance, the husband of the petitioner submitted another option form dated 02.01.2091 opting to retire at the age of 58 years. As stated earlier, the petitioner husband has died at the age of 57 years before attaining the age of superannuation i.e. 58 years. After his death, the petitioner repeatedly pursued the case of grant of death cum retirement gratuity on account of death of Chet Ram before higher authorities. She also moved a representation in this regard and later on received a communication from the higher authorities that she is not entitled to receive gratuity amount due to her husband.

4.Feeling aggrieved, the writ petition was filed.

5.After exchange of the counter affidavit and supplementary affidavit, the learned Single Judge dismissed the Writ Petition vide his order dated 03.10.2006.

6.Feeling aggrieved, the appellant filed this Special Appeal.

7.During hearing of the Special Appeal, a supplementary affidavit was filed by the appellant.

8.We have heard counsel for the parties.

9.Learned counsel for the appellant submits:-

Because the learned Single Judge has erred in making observations in the impugned order, which are not substantive from any record of the writ petition, the counsel has drawn our attention to the specific para of the order which contains that the petitioner and her family have received all the benefits due to her late husband as he was to retire at the age of 58 years. The counsel for the petitioner specifically submitted that she has filed supplementary affidavit in which it is clearly mentioned that she and her family have not received any extra benefit.

The counsel further submitted that the Single Judge has unnecessarily criticized the handwriting of the option form submitted by the appellant's husband. It was not at all mandatory for the appellant's husband to fill up the option form in his own handwriting. Even if the handwriting was different it was not challenged by the respondent authorities.

He further submitted that the first option form was submitted on 31.12.1990 and immediately after three days i.e. on 02.01.1991 another option form was submitted in which it was clearly mentioned that he opted to retire at the age of 58 years.

The appellant's husband died at the age of 57 years without attaning the age of superannuation. The second option form was also forwarded by District Inspector of Schools and also attested by the Principal of the College.

The counsel also relied upon the judgement reported in (2000) 2 UPLBEC 1378 Prabha Kakkar (Smt.) Vs. Joint Director of Education, Kanpur and others and 2008 (119) FLR 978 = Manu/U.P./1241/2008 (Smt. Ranjana Kakkar wife of late Sri Amar Nath Kakkar Vs. State of U.P. and others) and submitted that the case of the appellant is squarely covered by the above said judgement.

10.The counsel for the respondent has submitted that the appellant's husband has given an option to retire at the age of sixty years and according to the G.O. dated 04.11.2011, he was not entitled to death cum retirement gratuity.

11.The counsel further submitted that the learned Single Judge has rightly observed that the option form filled up by the appellant's husband were in different handwriting and were in fact not filled up by the appellant's husband and is a forged document and the learned Single Judge has rightly dismissed the writ petition.

12.We are unable to accept the contention raised by the learned counsel for the respondent.

13.Admittedly the appellant's husband has died at the age of fifty seven years and without attaining the age of superannuation i.e. 58 years. First option form was filled up by the appellant's husband on 31.12.1990 and immediately after three days another option form was submitted by the appellant's husband in which he has given his option to retire at the age of sixty years. The second option form was duly forwarded by D.I.O.S. and also attested by the Principal of that College. It is also admitted that both the option forms were never approved by the higher authorities. The Learned Single Judge has unnecessarily criticised the second option form on the basis of different writing although it was not mandatory for the person to fill up the form in his own handwriting. Secondly, the second option form was duly forwarded.

14.It was also important that second option was given after three days. However, the teachers were given ninety days' time to send their options. The case of the appellant is also squarely covered up by the judgement of this Court in writ petition filed by Smt. Ranjan Kakkar (supra). In that case, late Amar Nath Kakkar, husband of the petitioner was a Lecturer in University of Allahabad when the Government decided to improve the service conditions of employees and raised the retirement age from 58 years to 60 years and those teachers who did not want to continue upto sixty years were given option to retire at the age of fifty eight years with the benefit of death cum retirement gratuity and the teachers who did not opt to retire at the age of fifty eight years and wanted to avail two years' additional service, they were not to be provided with the benefit of death cum retirement gratuity. Appellant's husband opted to continue up to the age of 60 years. His option was also accepted by the University but unfortunately he died at the age of 45 years. His wife made a representation for payment of death cum retirement gratuity of her husband, which was denied to her and when she filed a writ petition, it was decided by the Division Bench and was allowed and she was held entitled to receive the death cum retirement gratuity.

15.In the present appeal, the appellant case stands on a better footing. Firstly, the husband of the petitioner withdrew his option given earlier and submitted another option form just after three days and opted fifty eight years as retirement age. Secondly, his option form was not approved and no communication was received by appellant's husband in this regard. In the case of Smt. Ranjana Kakkar wife of late Sri Amar Nath Kakkar, the Court observed that:

'10. The scheme of the Government Orders dated 24.12.1983 and 21.08.1990 was to give the benefit of the extended age of retirement from 58 years to 60 years subject to the conditions that those teachers, who will retire at age of 58 years, will not be given benefit of D.C.R.G. and those, who want to take benefit of two years additional service, will get the calculation of pension only upto age of 58 years. These benefits, as it is stated in the opening paragraph of the Government Order dated 24.12.1983, were given for the purposes of providing social security to the teachers. These benefits were available to only those who could live up to the date of their superannuation to avail these benefits. For those, who unfortunately could not reach the age of 58 years, could not be taken to be covered by the scheme.

11.The providence to survive upto the age of 58 years could not be known to the teachers exercising options. The God has not yet bestowed the man with the powered to foresee of to predict death. The man arranges his affairs in accordance with the wisdom given to him by God. The Almighty has reserved the powers of sustaining and guiding human destiny. No one, who was required to give an option under the scheme, could have predicted whether he would survive to claim the benefits.

Where an event cannot be foreseen and a person is invited to give options with the understanding to arrange his affairs according to his own wisdom, his choice should not be allowed to work to his disadvantage after his death. He should be provided with the maximum of the benefits and social security after his death. Late Prof. Amarnath Kakkar did not live beyond the age of 45 years. He may have planned for his fairs upto the age of 60 years, both for himself and his family. The God however willed otherwise. His untimely death made his option unworkable. In order to give him maximum benefits of the social security, which was the intention of the Government Order dated 24.12.1983, he could not be denied the D.C.R.G. payable to him and calculated up to his death for the completed years of service rendered by him to the University. His life was cut short and thus his option became unworkable and futile, on his death at the age of 45 years. He could not be pinned down to his option by the University, to deprive his family of the gratuity earned by him and payable to his family.'

16.In view of the above and as the case of the appellant is squarely covered by the judgement rendered by the Division Bench of this Court and appellant has specifically deposed that she has not received any extra benefit, the Special Appeal as well as the writ petition is allowed and the respondents are directed to calculate and pay the death cum retirement gratuity amount to the appellant/petitioner.

Order Date :- 1.12.2011

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