Dr.Onkar Nath Katiyar vs State Of U.P.And 4 Others
2017 Latest Caselaw 5715 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 07
 

 
Case :- WRIT - A No. - 28657 of 2014
 

 
Petitioner :- Dr.Onkar Nath Katiyar
 
Respondent :- State Of U.P.And 4 Others
 
Counsel for Petitioner :- Satendra Kr.Gupta,Rakesh Kr.Shukla
 
Counsel for Respondent :- C.S.C.
 

 

 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Satendra Kumar Gupta holding brief of learned counsel for the petitioner and Sri I.S. Tomar, learned Additional Chief Standing Counsel for the State-respondents.

FACTS:-

2. Briefly stated facts of the present case are that the date of retirement of the petitioner at the age of 60 years is 30.06.2011 while the date of retirement at the age of 62 years is 30.06.2013, which fact has been admitted in paragraph-24 of the affidavit dated 24.10.2017 filed by the respondent No.1. The petitioner was an Assistant Teacher in the respondent No.4 institution where he joined on 23.11.1974. While serving in the respondent No.4 institution, he suffered brain haemorrhage in February, 2007. Even after treatment he found himself to be physically and mentally not fit to do teaching work. Consequently, he submitted an application on 01.08.2009 before the respondent No.4 for voluntary retirement w.e.f. 31.10.2009 in terms of the Government Order No.1862/15-8-3058/79, dated 24.06.1983. The aforesaid application was forwarded by the respondent No.4 to the respondent No.3 who passed an order dated 24.10.2009 allowing the petitioner to retire voluntarily w.e.f. 31.10.2009. Accordingly, the petitioner retired voluntarily on 31.10.2009. Belatedly, his post retirement benefits were paid but the gratuity was not paid and as such, he made a representation dated 29.10.2010 before the respondent No.4/5 and thereafter before the respondent No.3 on 17.01.2011. Since no decision was taken by the respondent No.3 for payment of gratuity to the petitioner and as such, the petitioner filed Writ-A No.44474 of 2013 (Dr. Onkar Nath Katiyar vs. State of U.P. and four others), which was disposed of by order dated 29.08.2013 directing District Inspector of Schools, Kannauj to see and ensure that a final decision is taken in accordance with law, preferably within next three months. Thereafter, the impugned order dated 11.03.2014 was passed by the respondent No.3 whereby the claim of gratuity of the petitioner was rejected on the ground that in terms of Government Order No.127/15-8-2004-16-Niyam/2003T.C. dated 04.02.2004, the petitioner has not submitted the option before one year (before 1st July). Aggrieved with this order, the petitioner has filed the present writ petition.

3. Counter and rejoinder affidavits have been exchanged and a personal affidavit has also been filed by the respondent No.1.

Submission of the petitioner:-

4. Learned counsel for the petitioner submits as under:

(i) In terms of para-2 of the Government Order No.4376/15-8-90-3003-(8)/90, dated 06.10.1990 as amended by Government Order No.19/15-9-91/3003 (78)/90, dated 04.11.1991, the option for retirement with gratuity stood automatically exercised. Since the petitioner suffered brain haemorrhage in February, 2009 and became incapacitated to discharge his duties as teacher and as such, in terms of Rule 11(3) of the "mRrj izns'k jkT; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa ds v/;kidksa dh e`R;q rFkk lsok fuo`fRr vkuqrksf"kd fu;ekoyh] 1981" (hereinafter referred to as 'the Gratuity Rules'), he moved an application for voluntary retirement on 01.08.2009 which was accepted and the petitioner was voluntarily retired w.e.f. 31.10.2009. Thus, the benefit of gratuity was payable to the petitioner, which has been illegally denied by the State-respondents.

(ii) The petitioner has exercised the option in terms of the G.O. dated 24.06.1983 and as such, the gratuity is payable to the petitioner.

(iii) Conflicting stand for denial of the gratuity to the petitioner, have been taken by the State-respondents in the impugned order, in para-6 of the counter affidavit and in the personal affidavit filed by the respondent No.1.

(iv) The petitioner is entitled for gratuity which is his statutory right. Therefore, the State-respondents cannot withhold or deny it and are bound to pay it to the petitioner.

SUBMISSIONS OF STATE-RESPONDENTS:-

5. Sri I.S. Tomar, learned standing counsel submits as under:

(i) Since the petitioner has not exercised option for payment of gratuity in terms of the Government Order No.2523/15-8-2070/77 dated 10.08.1978 and in terms of Rule-3, the petitioner has not submitted the option within six months of the enforcement of the Gratuity Rules, therefore, gratuity is not payable to the petitioner.

(ii) In terms of the Government Order No.395/15-8-99/3003 (78) 98 dated 17.02.1999, the petitioner was required to submit his option for retirement on 1st July before one year from 30.06.2011 i.e. on 01.07.2010 but he has not submitted any option. Therefore, gratuity is not payable to him.

6. I have carefully considered the submissions of learned counsel for the parties and perused the record.

DISCUSSION AND FINDINGS:-

7. From the facts and submissions as afore-quoted and also with the consent of the learned counsel for the parties, the only question involved in this writ petition for determination is being framed as under:-

"Whether the petitioner being an Assistant Teacher due for retirement at the age of 60 years on 30.06.2011 and at the age of 62 years on 30.06.2013, having exercised the option for voluntary retirement vide application dated 01.08.2009 and voluntarily retired w.e.f. 31.10.2009 in terms of G.O. No.1862/15-8-3058/79, dated 24.06.1983, is entitled for gratuity?"

HISTORY OF AGE OF RETIREMENT OF A TEACHER WITH OR WITHOUT GRATUITY:-

8. The age of retirement of teachers of State Aided Recognised Colleges was 58 years with gratuity and 60 years without gratuity. This continued till the Government Order No.127/15-8-2004-16-Niyam-2003T.C. Dated 04.02.2004 whereby the age of retirement with gratuity was enhanced from 58 years to 60 years and from 60 years to 62 years without gratuity. The date of retirement of the petitioner at 60 years was 30.06.2011 and at 62 years it was 30.06.2013 as has been admitted in paragraph-24 of the affidavit of the respondent No.1 dated 24.10.2017. Undisputedly the petitioner moved an application for voluntary retirement on 01.08.2009 seeking retirement w.e.f. 31.10.2009. This was a three months' notice given by the petitioner to State-Respondents in terms of the Government Order No.1862/15-8-3058/79, dated 24.06.1983. As per own case of the respondents as evident from the impugned order dated 11.03.2014, the notice as required by the aforesaid G.O. dated 04.02.2004 to be given before one year (before first July), has not been given. This finding is factually incorrect inasmuch as before the date of retirement at the age of 60 years i.e. 30.06.2011, the petitioner had given a notice for voluntary retirement on 01.08.2009 which was much before 01.07.2010. It appears that the respondent No.3 while passing the impugned order has overlooked the G.O. dated 24.06.1983 and misread the G.O. dated 04.02.2004.

9. For the sake of convenience the Government Order No.127/15-8-2004-16-Niyam-2003T.C. dated 04.02.2004 and the G.O. No.1862/15-8-3058/79, dated 24.06.1983 are reproduced below:-

 

 
	"G.O. date:04.02.2004
 

 
		ek/;fed fo|ky;&lsok fuo`fRr vk;q [email protected] o"kZ jktkKk
 
			la[;k [email protected]&8&2004&16&fu;[email protected] Vh0lh0 
 
izs"kd]						lsok esa]
 
    uhjk ;kno 				   f'k{kk funs'kd ¼ek/;fed½
 
    izeq[k lfpo				   mRrj izns'k y[kuÅ@bykgkcknA
 
    mRRkj izns'k 'kkluA 
 
f'k{kk ¼8½ vuqHkkx				    y[kuÅ % fnukad % 04 Qjojh] 2004
 
     fo"k;% v'kkldh; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa dk;Zjr f'k{kdksa dh vf/ko"kZrk vk;q esa o`f) djus ds lEcU/k esaA 
 
egksn;]
 

'kklu }kjk lE;d~ fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd v'kkldh; lgk;rk izkIr m0ek0 fo|ky;ksa esa 'kklu }kjk l`ftr inksa ij fu;ekuqlkj dk;Zjr v/;kidksa dh orZeku vf/ko"kZrk vk;q esa o`f) dj nh tk;A

2- var% Jh jkT;iky egksn; rkRdkfyd izHkko ls v'kkldh; lgk;rk izkIr m0 ek0 fo|ky;ksa esa 'kklu }kjk l`ftr inksa ij fu;ekuqlkj dk;Zjr v/;kidksa dh orZeku vf/ko"kZrk vk;q dks 60 o"kZ ls c<+kdj 62 o"kZ fd;s tkus dh lg"kZ Lohd`fr iznku djrs gSA QyLo:i 58 o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsok uSo`fRrd ykHk vc 60 o"kZ dh vf/ko"kZrk vk;q ij rFkk 60 o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsok uSo`fRrd ykHk 62 o"kZ dh vf/ko"kZrk vk;q ij vuqeU; gksaxsA

3- Jh jkT;iky egksn; ;g Hkh vkns'k iznku djrs gSa fd tks f'k{kd 01 tqykbZ] 2003 ds i'pkr~ vf/ko"kZrk vk;q iw.kZ ij l=kar ykHk dj py jgs gSa mUgsa Hkh vf/ko"kZrk vk;q oqf) lEcU/kh ykHk iznku fd;k tk;sxkA

4- bl lEcU/k esa iwoZ esa fuxZr leLr 'kklukns'k mDr lhek rd la'kksf/kr le>s tk;asxs rFkk mudh 'ks"k 'krsZ ;Fkkor~ jgsaxhA

5- m0iz0 baVjehfM,V ,twds'ku ,DV ds laxr fu;eksa esa vko';d la'kks/ku dh dk;Zokgh 'kklukns'k tkjh gksus ds 30 fnu ds vUnj lqfuf'pr dj yh tk;sxhA

6- ;g vkns'k foRRk foHkkx ds v'kkldh; i= la[;k ;[email protected]&11&[email protected]&04 fnukad 4&2&2004 esa izkIr lgefr ds vUrxZr fuxZr fd;s tk jgs gSA

Hkonh;]

[email protected]&uhjk ;kno]

izeq[k lfpo

G.O. dated 24.06.1983

**¼6½ LosPNk ls isa'ku ysus dh jktkKk& ek/;fed fo|ky;

 
la0 [email protected]&8&[email protected] 
 
izs"kd] lsok esa]
 
Jh xksfoUn ukjk;.k feJ 				f'k{kk funs'kd
 
la;qDRk lfpo] m0iz0 'kkluA 			mRrj izns'k] y[kuÅA
 
f'k{kk ¼8½ vuqHkkx 					y[kuÅ % fnukad % 24 twu] 1983
 

fOk"k; % lgk;rk izkIr mPprj ek/;fed fo|ky;ksa ds f'k{k.ksRrj deZpkfj;ksa dks jkT; deZpkfj;ksa dh HkkWfr 45 o"kZ dh vk;q vFkok 20 o"kZ dh lsok ds mijkUr LosPNk ls lsok fuo`Rr gksus dh lqfo/kk fn;k tkukA

egksn;]

mi;qZDr fo"k;d funs'kky; ds v/kZ'kkldh; i= la[;k isa'ku ¼2½@[email protected]&10¼55½@81&82] fnukad 1&5&1982 ds lUnHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd lgk;rk izkIr mPprj ek/;fed fo|ky;ksa ds f'k{k.k ,oa f'k{k.ksRRkj deZpkfj;ksa dks jkT;iky egksn; us jkT; deZpkfj;ksa dh Hkkafr 45 o"kZ dh vk;q vFkok 20 o"kZ dh lsok iw.kZ djus ds mijkUr LosPNk ls lsok fuo`RRk gksus dh lqfo/kk fn;s tkus dk vkns'k lg"kZ iznku dj fn;k gSA

2- ;g lqfo/kk fuEu izfrcU/kksa ds v/khu iznku dh tk jgh gSA izR;sd f'k{[email protected] tks LosPNk ls lsokfuo`RRk gksuk pkgrk gS] vius fu;qfDRk vf/kdkjh vFkkZr~ fo|ky; dh izcU/k lfefr dks bfPNr lsok fuo`fRRk dh frfFk ls de ls de rhu ekg iwoZ] bl vk'k; dk fyf[kr izkFkZuk&i= nsxkA

3- izcU/k lfefr bl vk'k; dk izLrko ikfjr djds lEcfU/kr ftyk fo|ky; fujh{[email protected]; ckfydk fo|ky; fujh{kdk dks Hkstsxh fd vkosnu deZpkjh dks dfFkr fnukad ls lsok eqDr fd;s tkus esa mls vkifRr ugh gSA ftyk fo|ky; fujh{[email protected]; ckfydk fo|ky; fujhf{kdk }kjk rn~uqlkj vkosnu ds lsookfuo`RRk gksus ds vk'k; dk vkns'k izlkfjr fd;k tk;xkA

4- ;fn fdlh f'k{[email protected]'k{k.ksRrj deZpkjh ds fo:) vuq'kklfud dk;Zokgh fopkjk/khu ;k vklUu gks rks fu;qfDRk izkf/kdkjh ¼izcU/k lfefr½ vFkok ftyk fo|ky; fujh{[email protected]; ckfydk fo|ky; fujh{kdk dk ;g vf/kdkj gksxk fd og ,sls f'k{[email protected]'k{k.ksRrj deZpkjh ds LosPNk] ls fuo`Rr gksus ds lEcU/k esa fn;s x;s izkFkZuk&i= dks vLohdkj dj nsa ijUrq vLohdrkZ vf/kdkfj;ksa ds fy, ;g vfuok;Z gksxk fd veqd f'k{[email protected]'k{k.ksRRkj deZpkjh ls izkIr uksfVl ds fnukad ls nks ekg ds vUnj mls izkFkZuk&i= vLohdkj djus ds dkj.kksa ls voxr djk nsaA

5- bl lEcU/k esa eq>s ;g Hkh dgus dk funs'k gqvk gS fd tgkW dksbZ f'k{[email protected]'k{k.ksRRkj deZpkjh] tks bl jktkKk ds v/khu jgrs gq, lsok fuo`Rr gksrk gS rks mls lqlaxr fu;eksa ds vuqlkj rFkk mlds izfrcU/kksa ds v/khu jgrs gq, lsok fuo`RRk isa'ku rFkk lsokfuo`RRk lEcU/kh vU; ykHk ns; gksaxs] ijUrq blds fy, mls fdlh vfrfjDr lsok dk ykHk ugha iznku fd;k tk;sxk] vFkkZr~ isa'ku vkx.ku ds fy, mruh gh lsokof/k dk vkx.ku fd;k tk;sxk ftruh mlus fu;fer vgZ lsok] ml gsrq okLro esa dh gksxhA

6- ;g vkns'k foRr foHkkx ds v'kkldh; la[;k bZ&[email protected]@nl&83] fnukad 28&5&83 esa izkIr mudh lgefr ls fuxZr fd, tk jgs gSA

Hkonh;]

xksfoUn ujk;.k feJ

la;qDr lfpo **

10. From the afore-quoted Government Orders, it is absolutely clear that age of retirement with gratuity is 60 years and without gratuity 62 years. However, in case of a teacher seeking voluntary retirement on completion of 20 years of service and attaining the age of 45 years, three months' notice in writing shall be necessary and in the event the conditions as provided in the afore-quoted G.O. dated 24.06.1983 are satisfied, he shall be entitled for pension without post retirement benefits. On the facts of the present case, I find that since the petitioner has complied the terms of the G.O. dated 24.06.1983 and as such he has become entitled for pension and other post retirement benefits.

GRATUITY TO TEACHERS OF AIDED HIGHER SECONDARY SCHOOLS:-

11. The Government Order No.5310/15-8-8-3004 (2)/ 1974, dated 31.03.1978 was issued by the State Government extending the benefits of pension and gratuity to teachers of aided Higher Secondary Schools who retire on or after 01.03.1977. Subsequently, the State-Government issued another Government No.2523/15-8-3070/77 dated 10.08.1978 providing that if a teacher gives an option for retirement at the age of 58 years then he shall be entitled for gratuity. Subsequently the Uttar Pradesh Rajya Sahayata Prapt Uchchatar Madhyamik Vidylayon Ke Adhyapkon Ki Mrityu Tatha Sewa Nivritti Anutoshik Nyamawali, 1981 was enacted by Notification No.3218/15-8-3070/77 dated 29.08.1981 w.e.f. 30.06.1978 (hereinafter referred to as 'the Gratuity Rules'). Rule 11 of the Gratuity Rules provides for eligibility of a teacher for gratuity as under:

Hkkx&¼x½

lsok uSo`fRRkd vkuqrksf"kd

**11- dksbZ v/;kid fuEukafdr voLFkkvksa esa bl fu;ekoyh ds vUrxZr vkuqrksf"kd ikus dk i= gksxk &

¼1½ fodYi i= ds vuqlkj 58 o"kZ dh vof/k ij lsokfuo`fRr gksus ijA

¼2½ 58 o"kZ dh vk;q ij lsokfuo`fRr gksus dk fodYi nsus okys ,sls v/;kid tks 20 o"kZ dh vgZdkjh lsok iwjh ysus vFkok 45 o"kZ dh vk;q izkIr dj ysus ds i'pkr LosPNk ls lsokfuo`RRk gksuk pkgsaA

¼3½ 58 Ok"kZ dh vk;q ij lsokfuo`Rr gksus dh fodYi nsus okys ,sls v/;kid tks vkxs lsok ds fy, LFkk;h :i ls vleFkZ gksus dk izek.k&i= nsdj 58 o"kZ dh vk;q ds iwoZ lsokfuo`Rr gksaA **

12. The aforesaid Gratuity Rule was followed by the afore-quoted Government Order dated 24.06.1983 specifically providing for voluntary retirement.

13. It appears that the State Government felt that large number of teachers could not submit their option and, therefore, a G.O. No.4376/15-8-90-3003(8)/90, dated 06.10.1990 was issued providing that if an option is not submitted within 90 days then it shall be presumed that the concerned teacher/ non-teaching employee have opted to retire at the age of 58 years. The aforesaid Government Order dated 06.10.1990 is reproduced below:

"fodYi jktkKk

la[;k&[email protected]&8&90&3003& ¼8½@90

izs"kd]

Jh izseukFk JhokLro

vuq lfpo]

mRrj izns'k 'kkluA

lsok esa]

f'k{kk funs'kd]

mRrj izns'k] y[kuÅ@bykgkcknA

isU'ku fu;ekoyh @ 85

f'k{kk ¼8½ vuqHkkx y[kuÅ] fnukad] 6 vDVwcj 1990

fo"k;& jkT; fuf/k ls lgk;rk izkIr v'kkldh; mPprj ek/;fed fo|ky;ksa ds f'k{[email protected]'k{k.ksRrj deZpkfj;ksa ds lsok fuo`fRrd ykHkksa esa ifjorZu gsrq iqu% fodYi dh lqfo/kk fn;k tkukA

egksn;]

eq>s 'kklukns'k la[;k [email protected]&8&2004 ¼2½@1974 fnukad 31 ekpZ 1978 'kklukns'k la[;k&[email protected]&8&[email protected] fnukad 28 tqykbZ] 1978 rFkk 'kklukns'k la[;k [email protected]&8&3003 ¼1½@1979 fnukad 3 uoEcj 1978 ds vuqdze esa ;g dgus dk funsZ'k gqvk gS fd vifjgk;Z dkj.kksa o'k dfri; f'k{kd f'k{k.ksRrj deZpkjh mDr 'kklukns'kks }kjk iznRr lqfo/kk ds ykHkksa ls oafpr jg x;s Fks vkSj fujUrj ;g ekax dj jgs Fks fd mDr dks Hkh mUgsa 'kklukns'k esa vuqeU; lqfo/kk dk ykHk iznku fd;k tk;A pwWfd mDr 'kklukns'kksa n~okjk vuqeU; lqfo/kk dk ykHk izkIr djus gsrq fu/kkZfjr vof/k lekIr gks pqdh Fkh ftlds dkj.k lgk;rk izkIr v'kkldh; mPprj ek/;fed fo|ky;ksa esa dk;Zjr f'k{[email protected]'k{k.ksRrj deZpkfj;ksa dks tks mDr lqfo/kkvksa ls oafpr jg x;s Fks] mUgsa mDr lqfo/kk fn;k tkuk lEHko ugha gks ik jgk FkkA vr% f'k{kdks }kjk fujUrj dh tk jgh ekax ij fopkjksijkar jkT;iky egksn; us mu f'k{[email protected]'k{k.ksRrj deZpkfj;ksa] tks mDr 'kklukns'k ds vUrxZr vuqeU; ykHk izkIr djus gsrq fodYi nsus ls oafpr jg x;s Fks] vFkok iqjkus isU'ku ;kstuk ds vUrxZr fodYi izLrqr fd;k Fkk] dks mDr 'kklukns'kksa esa fu/kkZfjr vU; fu;[email protected]'krksZa o izkfo/kkuksa ds vUrxZr vfUre :i ls 90 fnu ds vUnj fu/kkZfjr izi=ksa ij iqu% fodYi izLrqr fd, tkus dh lg"kZ Lohd`fr iznku dj nh gSA

2& eq>s ;g Hkh dgus dk funsZ'k gqvk gS fd tks dk;Zjr f'k{[email protected]'k{k.ksRrj deZpkjh bl 'kklukns'k esa nh tk jgh lqfo/kk dk ykHk mDr fu/kkZfjr vof/k ds vUnj izkIr djus gsrq fodYi i= izLrqr ugha djsxs] muds lEcU/k ds ;g Lor% eku fy;k tk,xk fd lEcfU/kr f'k{[email protected]'k{k.ksRrj deZpkjh 58 o"kZ dh vk;q ij lsok fuo`r gksus dh 'krZ ds lkFk isU'ku] ikfjokfjd isU'ku rFkk lkekU; Hkfo"; fuf/k dh lqfo/kk ls vkPNkfnr gksus dk fodYi fn;k gSA c'krsZ fd os blds fy, vgZ gksaA e`R;q ,oa lsok fuo`fRrd vkuqrksf"kd dh lqfo/kk mu f'k{kdksa dks vuqeU; gksxh tks 58 o"kZ dh vk;q ij lsok&fuo`Rr gksus dk fodYi nsaxsA bl 'kklukns'k ds fuxZr gksus dh frfFk ds mijkar fu;qDr f'k{[email protected]'k{k.ksRrj deZpkjh Lor% bl lqfo/kk ls vkPNkfnr ekus tk;sxsA

3& bl lEcU/k esa eq>s ;g Hkh dgus dk funs'k gqvk gS fd f'k{kk funs'kd ;g lqfuf'pr djsxs fd iwoZ 'kklukns'kksa esa mfYyf[kr fu;eksa 'krksZ ,oa izkfo/kkuksa ds v/khu ,sls leLr f'k{[email protected]'k{k.ksRrj deZpkjh] tks bl 'kklukns'k esa iznRr isU'ku Ldhe dk fodYi nsxs ;k ns pqds gS] dh Hkfo"; fuf/k;ksa dh /kujkf'k fu;fer :i ds jktdh; dks"kkxkj esa tek djk nh tk;s rFkk ftu ekeyksa esa vc rd ;g dk;Zokgh ugha dh tk ldh gS] muesa Hkh ;g dk;Zokgh lqfuf'pr djk yh tk;s rkfd f'k{[email protected]'k{k.ksRrj deZpkfj;ksa dks Hkfo"; esa bl ;kstuk dk ykHk lqpk: :i ls feyrk jgsA f'k{kk funs'kd ;g Hkh lqfuf'pr djsxs fd izR;sd f'k{[email protected] }kjk izLrqr fodYi dh Lohd`[email protected]`r dh lwpuk fodYi izkfIr ds ,d ekg ds vUnj lEcfU/kr v/;kid dks vo'; ns nh tk,A

4& ;g vkns'k foRr foHkkx ds v'kkldh; la[;k&bZ&[email protected]@nl&90] fn0 25-9-1990 esa izkIr mudh lgefr ls tkjh fd;k tk jgk gSA

Hkonh;]

[email protected]&izseukFk JhokLro

vuqlfpoA"

14. The aforesaid Government Order dated 06.10.1990 was clarified by a G.O. No.19/15-8-91/3003 (78)/90, dated 04.11.1991 providing that those teachers who submit their option to retire at the age of 60 years, shall be entitled to pension and other post retirement benefits except the gratuity.

15. By Government Order No.395/15-8-99/3003 (78) 90, dated 17.02.1999, the State Government considered the demand to change the option of retirement at the age of 58 years or 60 years providing that the teachers of Aided Madhyamik Schools may change their option upto First July of the Academic Session of their retirement. The Government Order dated 17.02.1999 is reproduced below:

"58 o"kZ ;k 60 o"kZ fodYi ifjorZu

mRRkj izns'k 'kklu us jktkKk la[;k&[email protected]&8&[email protected] ¼78½@90 fnukad 17 Qjojh] 1999 ds }kjk isU'ku gsrq fodYi dh lqfo/kk fn;s tkus ds lEcU/k esa uhfr fu/kkZfjr dh gSA fodYi dh lqfo/kk f'k{kdksaa ,oa f'k{k.ksRrj deZpkjh nksuksa dks nh xbZ gSA

v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds f'k{kdksa }kjk lsokfuo`r ds ,d o"kZ iwoZ vFkkZr ftl 'kSf{kd l= esa mudh lsok fuo`fr gksxh] mldh igyh tqykbZ rd fodYi ifjofrZr dj ldrs gSA

vr% tks f'k{kd l= 1999&2000 esa lsokfuo`RRk gks jgs gSa viuk fodYi LosPNk ls ifjofRkZr dj ldrs gaSA fodYi ifjorZu ds fy, jktkKk esa dksbZ izksQkekZ ugha fn;k x;k gS vr% vius ys[k esa gh fodYi nsuk gSA tks f'k{kd 30 twu lu~ 2000 esa lsokfuo`Rr gksaxs dsoy mUgsa gh fodYi nsuk gSA tks lu~ 2000 ds ckn lsokfuo`Rr gksaxs mUgs fodYi nsus dh vko';drk ugha gS] D;ksafd os ftl l= esa lsokfuo`RRk gksaxs mlh l= dh igyh tqykbZ dks fodYi nsus dh lqfo/kk iznku dh xbZ gSA

lkekU;r% ,slk gksrk gS fd jktkKk,a fuxZr gks tkrh gSa] ijUrq f'k{kdksa dks irk gh ugha pyrh] tcfd laxBu vius eq[k i= lUrq"V ds ek/;e ls rFkk jktkKk laxzg izdkf'kr dj jktkKkvksa dks tkudkjh nsrk gSA vr% ge lHkh dk drZO; gS fd fodYi ifjorZu dh jktkKk ls viuh 'kk[kk ds lHkh lkfFk;ksa dks voxr djk nsaA fo|ky; ds iz/kkukpk;Z ds ek/;e ls fodYi ifjorZu dh lwpuk lEcfU/kr ftys ds ftyk fo|ky; fujh{kd dks 1 tqykbZ] 1999 rd miyC/k gks tkuh pkfg;sA

lsok fu;eksa ,oa ias'ku fu;eksa esa Hkh ifjo)[email protected] gksrs jgrs gS] lkekU;r% ;s fu;e v/;[email protected];ksa dks lqfo/kk iznku djus ds fy;s gh fufeZr gksrs gSA vr% lu~ 2000 ds ckn lsokfuo`RRk gksus okys v/;kid vxyh 1 tqykbZ dks gh fodYi ifjorZu djsaA

f'k{k.ksRrj deZpkfj;ksa ds fy, bl jktkKk es 58 Ok"kZ dh vk;q dk fodYi nsus dh lqfo/kk iznku dh xbZ gSA ,sls f'k{k.ksRrj deZpkjh tks 58 o"kZ dh vk;q ij lsokfuo`fRr dk fodYi nsrs gaS] bl 'kklukns'k ds tkjh gksus dh frfFk ls ¼17 Qjojh] 1999½ ;g O;oLFkk ykxw gksxhA "

16. Subsequently, the Government issued another Government Order dated 04.02.2004 as afore-quoted enhancing the date of retirement from 58 years to 60 years with gratuity and 62 years without gratuity. The legal position with respect to the entitlement of gratuity in terms of aforesaid Government Orders dated 25.05.2002 and 21.02.2004 was considered by a Division Bench of this Court in the case of Suresh Kumar Gadi vs. State of U.P. and others, 2012 (1) ADJ - 729 holding as under:

"Heard Sri Upendra Singh, learned counsel for the petitioner and Sri M.C. Tripathi, learned Additional Chief Standing Counsel for the State.

The petitioner while working as lecturer in the Institute of Engineering and Rural Technology, Allahabad attained the age of superannuation of 60 years on 1st February, 2004 but was given the advantage of continuance in service, till the end of current academic session, therefore he actually retired on 30th June, 2004. Since the petitioner has been denied gratuity, he has approached this Court under Article 226 of the Constitution of India.

The petitioner urges that he having given the option for retirement at the age of 60 years, he is entitled for the gratuity but the respondents have denied the said benefit.

Learned counsel for the State, in response, submitted that the petitioner has not given his option on or before 1st July, 2003 i.e. one year before the date of retirement, therefore, he is not entitled to the aforesaid benefit of gratuity. Submission of the respondents is, that as per the Government Order dated 25th May, 2002, this option was to be given, one year before the date of retirement whereas admittedly the petitioner had given his option on 8th May, 2004.

Learned counsel for the State has drawn our attention to the order dated 15th June, 2006 passed by the Finance Controller Technical Education Directorate U.P. at Lucknow which refuses the award of gratuity to the petitioner on the aforesaid ground.

It is the admitted case of both the parties that initially the age of retirement of teachers in the institution like the present one was 58 years. This age of 58 years was enhanced to 60 years with an option to the teachers to either opt for retirement at the age of 58 years and obtain gratuity or to work for extended period up to 60 years without the benefit of gratuity.

The Government Order of 25th May, 2002 was applicable for the teachers who retire at the age of 58 years and also at the age of 60 years as mentioned above, making it obligatory upon the teachers to opt within the time prescribed for having gratuity.

This age of retirement was enhanced from 60 years to 62 years vide Government Order dated 21st February, 2004.

A perusal of the aforesaid Government Order, which is on record, shows that the Governor while extending the age from 60 years to 62 years ,of the teachers of the technical institutions also provided that such teachers, who opt for being retired at the age of 60 years will be entitled for gratuity but those who give their option to work till the age of 62 years will not be given gratuity but will be entitled for pension only.

The aforesaid Government Order thus is very clear on the subject of payment of gratuity and pension vis-a-vis the age of retirement chosen by the teacher concerned. The language used in the Government Order dated 21st February, 2004 further makes it abundantly clear that after the enhancement of the age from 60 years to 62 years option was to be given by the teachers concerned to have gratuity or to have pension alone depending on the fact that they seek retirement at the age of 60 years or at the age of 62 years. This option naturally could be given only when the age of retirement was enhanced from 60 to 62 years and when the same was asked for.

Any Government Order requiring an option for gratuity or pension with respect to the age of retirement earlier prescribed i.e. 58 or 60 years, would not be sufficient to conclude whether the teacher wants to be retired at the age of 60 years or at 62 years. It was only when the age of retirement was enhanced from 60 years to 62, the occasion, to give an option would arise.

This is also evident from the fact that the Government Order dated 21st February 2004 speaks of fresh options in terms of the aforesaid Government Order. It does not say that the option already exercised with regard to the age of 58 or 60 years will be valid for the present enhanced age also, rather it asks for fresh option. Such option could be given by the teachers only after 21st February, 2004 and not before.

The view taken by the Finance Controller that the petitioner has not given option for being retired at the age of 60 years on 1st July, 2003, is not based on any reasonable principle. It stands concluded from the Government Order dated 21st February, 2004 which in fact supersedes all the pre existing Government Orders as mentioned in column IV of the said Government Order that on enhancement of the age of retirement from 60 to 62 years, fresh option was to be given.

There is also another aspect of the matter namely a teacher who opts for being retired at the age of 60 years is entitled for gratuity and pension both, whereas a teacher who opts for retirement at the age of 62 years is not entitled for gratuity and in that circumstance, he would be paid salary for two years continuous service.

Thus, there cannot be a teacher who would neither be allowed service up to age of 62 years nor gratuity even though he retires at the age of 60 years merely because he has not given the option prior to the issuance of the Government Order dated 21st February, 2004.

The teacher is required either to work at the age of 62 years and get salary for the said period or he is to retire at the age of 60 years with the benefit of gratuity.

In the instant case admittedly the petitioner retired on attaining the age of 60 years at the end of the current academic session and was not allowed to continue in service up to the age of 62 years. If, the petitioner had retired on attaining the age of 60 years and has given his option after the issuance of the Government Order dated 21st February, 2004 when he was in service, it cannot be said that his option was in any way invalid. The option given by the petitioner on 8th May, 2004 could not have been said to be an option not in accordance with the said Government Order.

From a perusal of the records, it is established that the petitioner retired at the age of 60 years and thus, is entitled for the benefit of gratuity.

We, therefore, direct the authority concerned to pay his entire amount of gratuity within a maximum period of two months from the date of receipt of a certified copy of this order, which has been withheld without any valid reason for such a long time.

We further direct that the petitioner shall also be entitled to and be paid interest @ 10% per annum on the delayed payment of gratuity from the date when it became due, till it is actually paid.

The order of the Finance Controller, Technical Education Directorate U.P. at Kanpur dated 15.06.2006 is hereby quashed. The writ petition is allowed. No order as to costs. "

(Emphasis supplied by me)

17. Thus, from the facts and legal position as noted above, I have no hesitation to hold that the petitioner is entitled for gratuity inasmuch he has exercised option for voluntary retirement vide application 01.08.2009 which was accepted by order of the D.I.O.S. dated 24.10.2009 voluntarily retiring him w.e.f. 31.10.2009. The petitioner was to attain the age of superannuation at the age of 60 years on 30.06.2011 and at the age of 62 years on 30.06.2013. Thus, in any case the option for retirement stood exercised by him before one year of the Academic Session in which he was to retire on attaining the age of 60 years. Under the circumstances, the petitioner is entitled for gratuity.

CONCEPT OF GRATUITY, PROVIDENT FUND AND VOLUNTARY RETIREMENT:-

18. Gratuity in a lump sum payment- It is an efficiency device and is considered necessary for an "orderly and humane elimination" on superannuation or being disabled or incapacitated to continue in employment. Voluntary retirement of an incapacitated or inefficient or old or worn out employee promotes contentment among those who look for promotions and draws better kind of employments. The employee who grows old, knows that some compensation for the gradual destruction of his wage earning capacity is being built up. Voluntary retirement of old or incapacitated or worn out employees, gives benefit to the employer to replace them by an efficient and energetic employee on a lower cost in the form of salary.

19. The concept of contribution to provident fund is different from gratuity inasmuch as the provident fund is designed to induce thrift so that the employee may lay by from his present earnings a portion for his old age while gratuity is a retiral benefit which is earned by giving service. The principles stated above are supported by law laid down by Hon'ble Supreme Court in the case of Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh, AIR 1965 SC 839 (para-5).

20. Voluntary retirement can only be sought after rendering prescribed period of qualifying service and normally retirement benefit is not denied provided permission for voluntary retirement is sought by the employee and it is granted by the employer concerned. The concept of voluntary retirement was explained by Hon'ble Supreme Court in the case of Reserve Bank of India and another vs. Cecil Dennis Solomon and another, (2004) 9 SCC 461 (para-10) as under:

"In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the concerned employer is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank v. P.K. Mittal (AIR 1989 SC 1083), on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India v. Gopal Chandra Misra (1978 (2) SCC 301), it was held in the case of a Judge of the High Court having regard to Article 217 of the Constitution that he has an unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power."

21. In view of the discussion made above and the conclusion reached by me, I have no hesitation to hold that the petitioner is entitled for payment of gratuity. The question as framed in Para-7 above is answered in affirmative. The impugned order dated 11.03.2014 cannot be sustained and is, therefore, quashed. Respondents are directed to ensure payment of gratuity to the petitioner within a period of eight weeks.

22. The writ petition is allowed with the direction made above.

Order Date :- 25.10.2017

NLY