State Of U.P. & Others vs Roop Chandra
2015 Latest Caselaw 4269 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 32
 

 
Case :- SPECIAL APPEAL No. - 817 of 2010
 

 
Appellant :- State Of U.P. & Others
 
Respondent :- Roop Chandra
 
Counsel for Appellant :- Suresh Singh, A.C.S.C.
 
Counsel for Respondent :- A.N. Rai
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Shashi Kant,J.

1. Heard Sri Som Pal Mishra, learned Standing Counsel appearing for appellants, Sri A.N. Rai, learned counsel for respondent and perused the record.

2. This special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, has been preferred challenging the judgment and order dated 30.01.2009 passed by Learned Single Judge in Civil Misc. Writ Petition No. 52720 of 2007 - Roop Chandra Vs. State of U.P. and four Others, whereby the writ petition was allowed in part and the respondents-appellants were directed to allow the benefit of Government Order dated 19.04.2006, to the petitioner-respondent from the date of Government Order.

3. Brief facts giving rise to present appeal are that the petitioner-respondent was appointed as Class IV employee on 07.08.1971, by the competent authority in Mahamana Malviya Inter College Khekhada, District - Aligarh imparting secondary education and is also under grant-in-aid by the State Government. The petitioner retired on attaining age of superannuation on 31.10.2005. Admittedly, when petitioner-respondent retired, he was not entitled for gratuity and other retiral benefits. Meanwhile, the State Government by the Government Order dated 19.04.2006, provided benefits of gratuity and other retiral benefits to the non-teaching Class IV employees. The petitioner-respondent claimed the benefit of gratuity and post retiral benefits on the basis of the said Government Order and accordingly moved a representation in this regard. The representation was not decided. The petitioner-respondent filed Writ Petition No. 52720 of 2007, which was partly allowed, directing the respondents-appellants to grant the benefit of Government Order dated 19.04.2006, to the petitioner-respondent from the date of Government Order, giving rise to present appeal.

4. Sri Som Pal Mishra, learned Standing Counsel appearing for respondents-appellants, submits that the petitioner-respondent is not entitled for the gratuity and other retiral benefits as he has retired prior to 19.04.2006 and under the Government Order dated 19.04.2006, only those non-teaching staffs are entitled for the benefit of the gratuity and post retiral benefits, who retires after 19.04.2006. This position has been clarified by the Government Order dated 23.11.2007. In other words, the aforesaid Government Order is prospective and not retrospective i.e. it is made applicable to the employees who retired earlier, only w.e.f. 19.04.2006 and not prior to that.

5. Learned Standing Counsel further submits that this issue came up before this Court in Civil Misc. Writ Petition No. 43208 of 2009 - Suresh Chandra Sharma Vs. State of U.P. and Others and Civil Misc. Writ Petition No. 45209 of 2009 - V.K. Shrama Vs. State of U.P. and Others, and on account of doubts in respect to cut-off date with regard to applicability of aforesaid Government Orders, following two issues were referred to the Larger Bench :

"(a) Whether the Government Order dated 19th April, 2006, as explained by the Government Order dated 23rd November 2007, is valid and being prospective in nature will have no application to the employees who retired prior to the date of issuance of the Government Order?

(b) Whether an employee, who had opted for retiring at the age of 60 years, like the petitioner, without availing the benefit of gratuity can not be permitted to turn around and claim gratuity after this retirement in view of the Government Order dated 19th April 2006?"

6. By way of supplementary affidavit, filed by the respondents-appellants the order dated 16.11.2010 of Larger bench (a Division Bench of this Court), has been brought on record. The relevant part of which reads as under :

"(a) That the Government Order dated 19th April, 2006, as clarified in Government Order dated 23rd November, 2007, is prospective in nature. It will not apply to the employees, who had retired prior to the issuance of the said Government Order.

(b) If the employee had opted for retiring at the age of 60 years with specific stipulation that he will not claim to gratuity, his right stands crystallized accordingly on the date of retirement and he cannot be permitted to turn around and claim gratuity in view of the subsequent Government Order dated 19th April, 2006, which is prospective in nature."

7. Countering the above submissions made on behalf of respondents-appellants, Sri A.N. Rai, learned counsel for petitioner-respondent submitted that the Government Order dated 19.04.2006, is applicable to those employees also who have retired prior to 19.04.2006. Thus, the petitioner is entitled for the benefit of gratuity and other post retiral benefits under the Government Order dated 19.04.2006. In support of his contentions he has placed reliance on the case of Dhanraj and Another Vs. State of Jammu and Kashmir and Others [1998(2) UPLBEC 1525].

8. Having heard learned counsel for the parties and on perusal of record, we find that the observations made by the Larger Bench in respect to aforesaid Government Orders are applicable to the cases where an employee had chosen to retire at the age of 60 years with specific stipulation that he will not claim gratuity. In the case in hand, the petitioner-respondent, had retired at the age of 58 years, and had filled no option that he will not claim gratuity.

9. In our view, in the peculiar facts and circumstances of the present case, the Writ Court has rightly allowed the claim of petitioner-respondent for payment of gratuity in terms of Government Order dated 19.04.2006 as well as 23.11.2007. The Writ Court in its order dated 30.01.2009, impugned in this appeal, has observed thus :

"In the case of Shanti Devi (Smt.) Versus State of U.P. and Others (Supra) the family pension was provided vide Government Order dated 24.2.1989 w.e.f. 1.1.1989. the family pension was denied to the petitioner-Shanti Devi on the ground that her husband who was the Class IV employee in the State aided Junior High School died on 20.11.1987 i.e. before 1.1.1989. This Court following the decision in the Writ Petition No. 34835 of 1995 Mohmooda Begum and Writ Petition No. 23609 of 1995 Smt. Akhtari Begum Vs. Director of Education held that the petitioner was entitled for the benefit of family pension in view of the Government Order w.e.f. 1.1.1989. Similar view has also been taken by another learned single Judge in the case of Rajmuni Devi Versus District Inspector of Schools, Ghazipur and others, reported in 2002 (1) ESC-136. In this case also the benefit of family pension was denied on the ground that husband of the petitioner who was the employee died on 31.8.1987 prior to 1.1.1989. Learned single Judge has held that denial of family pension to the petitioner on the aforesaid ground is illegal following the decision of the Apex Court in the case of D.S. Nakara Vs. Union of India (Supra).

In the case of Dhan Raj and Others Vs. State of Jammu & Kashmir and others (Supra), the question was whether the drivers and conductors of Jammu & Kashmir State Road Transport Corporation who retired prior to 9th June, 1981 were entitled for the benefit of the pension under the Government Order dated 3.10.1986 granting pension w.e.f. 9th June, 1981. The Apex Court held that the drivers and conductors of Jammu & Kashmir State Road Transport Corporation who retired prior to 9th June, 1981 are also entitled for the benefit of the pension under the Government Order dated 3.10.1986 in as much as denial of the pension to those drivers amounts to discrimination and violative of Article 14. Relying the decision of Constitution Bench of the Apex Court in the case of D.S. Nakara and others Vs. Union of India (Supra) wherein it has been held that that the criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after specified date while depriving the benefits to those retiring prior to that date was violative of Article 14. The Apex Court further held that even otherwise, while considering the question of grant of pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State as stated and the assurance as given in the Directive Principles of State Policy. A pension is a part and parcel of that goal, which secures to a person serving with the State after retirement of his livelihood. To deny such a right to such a person, without any sound reasoning or any justifiable differentia would be against the spirit of the Constitution.

In the case of Mohal Lal Sharma and etc. Vs. State of Rajasthan and another (Supra), the Rajasthan High Court has also held that there was no justification in denying the pensionary benefits to those who retired prior to 1.10.1987 and granting benefits to those who retired after 1.10.1987.

In the case of D.S. Nakara and others Vs. Union of India (Supra), the Constitution Bench of the Apex Court held that all the pensioners have equal right to receive the benefits of liberalised pension scheme. Pensioners from a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criterion for the purpose of grant of revised pension. Criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after that date while depriving the benefits to those retiring prior to that date, held, violative of Article 14.

From the above proposition of law laid down by the Apex Court and this Court it is clear that the benefit of the Government Order dated 19.4.2006 cannot be denied to the employees who retired prior to 19.4.2006 and such benefits are also available to them, including the petitioner. The notification is always read prospectively unless it is made retrospective. The Government Order dated 19.4.2006 has been further clarified by the Government Order dated 23.11.2007 which said that the benefit is available w.e.f. 19.4.2006. In this view of the matter, the petitioner is entitled for the Government Order dated 19.4.2006 w.e.f. 19.4.2006 and not prior to that.

In the result, writ petition is allowed in part. The respondent is directed to allow the benefit of the Government Order dated 19.4.2006 to the petitioner w.e.f. 19.4.2006 if till date nothing has been paid to the petitioner, the entire dues may be paid forthwith preferably within a period of two months from the date of presentation of the certified copy of the order along with simple interest at the rate of 5%."

10. On perusal of impugned judgment and order passed by the Writ Court, we find that same is a well discussed judgment incorporating detailed discussion of facts and law, therefore, we are of the considered opinion that petitioner-respondent is entitled for the benefit of gratuity as provided by the Government Order dated 19.4.2006, which was further clarified by Government Order dated 23.11.2007. We find no infirmity legal or otherwise in the impugned judgment and order and the same is hereby upheld. The respondents-appellants are directed to comply with the directions given by the Writ Court within a period of two months from the date of production of certified copy of this order.

11. Appeal lacks merit and is accordingly dismissed.

12. No order to as costs.

Order Date :- 19.11.2015

A. Verma