Narayan Singh vs State Of U.P. And 5 Others
2019 Latest Caselaw 4056 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                             AFR
 
Court No.25.                                                                    RESERVED
 
Case :- WRIT - A No. - 58792 of 2017 
 
Petitioner :- Narayan Singh
 
Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Vineet Kumar Singh

Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh

Hon'ble Prakash Padia J.

1. Heard Sri Vineet Kumar Singh, learned counsel for the petitioner, Sri Amit Manohar, learned Additional Chief Standing Counsel along with Sri Vijay Shankar Prasad, learned Standing Counsel appearing on behalf of respondent nos.1 and 2 and Sri Vikram Bahadur Singh, learned counsel appearing on behalf of respondents no. 3 and 4.

2. Insofar as respondents no. 5 and 6 are concerned as per office report dated 3.1.2018 neither acknowledgment nor undelivered notices has been received back as yet. In the circumstances notices are deemed to be served upon the aforesaid respondents.

3. Affidavits have already been exchanged between the contesting parties and with the consent of the parties, the writ petition is disposed of finally after hearing learned counsel for the parties.

4. The petitioner has preferred the present writ petition challenging the order dated 23.10.2017 passed by the respondent no. 2/Additional Director, Treasury and Pension, Kanpur Division, Kanpur (Annexure-6 to the writ petition). A further prayer is also made in the writ petition to issue a mandamus commanding the respondents to determine the amount of gratuity payable to the petitioner for his services rendered on the post of Peon (Class IV post) in the institution in question and pay the same along with interest accrued thereon.

5. The facts in brief as contained in the writ petition are that the institution in question, namely, Sri Gandhi Madhyamik Vidyalaya, Malhoushi, Bharthana, district Etawah is a recognized Junior High School under the Uttar Pradsh Basic Education Act, 1972. The Institution is on the grant-in-aid list of the State Government and all the teachers and employees are getting their salary through the State Exchequer.

6. The petitioner was initially appointed on temporary basis on the post of Peon on 21.2.1983. Subsequently, his services were regularized vide order dated 2.4.1990. The petitioner retired from service after attaining the age of superannuation on 28.2.2014. After the retirement the petitioner got all his post retiral dues except payment of gratuity. The petitioner has represented the matter to the Joint Director, Treasury and Pension, Kanpur Division, Kanpur for the payment of gratuity. Since no action was taken, the petitioner has preferred a writ petition being Writ A No. 40858 of 2017. The said writ petition was finally decided on 5.9.2017 directing the Additional Director, Treasury and Pension, Kanpur Division, Kanpur to consider the case of the petitioner for payment of gratuity and pass appropriate order in accordance with law.

7. The Additional Director, Treasury and Pension, Kanpur Division, Kanpur passed an order on 23.10.2017 by which claim of the petitioner for payment of gratuity was rejected on the ground that no Government Order has been issued for payment of the gratuity to Class IV employee of recognized aided Junior High School. It is further stated in the aforesaid order that the matter in question is pending consideration for its approval before the State Legislature (मंत्रिमंडल) and a decision is taken in this regard and a government order is issued, the gratuity in favour of the petitioner could not be released.

8. It is contended by the learned counsel for the petitioner that it is a pure question of law which is under consideration before this Court that whether a Class IV employee of aided Junior High School is entitled for payment of gratuity after attaining the age of superannuation or not. It is contented by Sri V.K. Singh, learned counsel for the petitioner that once a Class IV employee of a recognized and aided Secondary School is entitled for payment of gratuity under the Government Order dated 19.4.2006; a class III employee of a recognized and aided Junior High School has been made entitled to receive gratuity after his retirement under the Government Order dated 25.08.2005 and a Government Order dated 02.03.2015 entitles non-teaching employees of the Junior High Schools run by the U.P. Basic Education Board the benefit of gratuity, it is discriminatory on the part of the respondent authorities not to release gratuity in favour of a Class IV employee of a recognized and aided Junior High School on the pretext that there is no Government Order in that regard.

9. It is further contended that the nature of duties of Class IV employees either working in a recognized and aided Junior High School or a recognized and aided Secondary School or Junior High Schools run by the U.P. Basic Education Board are the same and they all together constitute a class within themselves but the respondents have deliberately made classification within a particular class regarding which, there is no reasonable basis or rationale for the same.

10. It is further contended that the service conditions of Class III and IV employees of recognized and aided Junior High Schools are governed under the Uttar Pradesh Recognized Basic Schools(Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 and once there being similar provisions relating to the service conditions including superannuation, termination of service and disciplinary proceedings in respect of non-teaching staff thereunder, the denial of gratuity to a class IV employee only of such school is arbitrary and discriminatory in the eyes of law.

11. It is further contended that arbitrary action of the respondent authorities can be seen from the fact that class III employees of a recognized and aided Junior High School have been made entitled for the payment of gratuity under the Government Order dated 25.08.2005 but wholly illegally the said benefit has not extended to Class IV employees of the same kind of Institutions although Class III and Class IV employees together fall in the category of non-teaching staff.

12. It is further contended that the petitioner has been deprived of gratuity for no fault. Gratuity is not an act of bounty or charity but a rightful entitlement of an employee.

13. In view of the aforesaid it is argued that the gratuity should be provided not only to the petitioner but all other similarly situated Class IV employees working in the recognized and aided Junior High School.

14. The counsel for the petitioner also relied upon a judgment of the Supreme Court in the case of Ram Prasad Narayan Sahi and another Vs. State of Bihar, reported in AIR 1953 SC 215 : 1953 SCR 1129. Relevant para 16 of the aforesaid judgment is reproduced below:

"There have been a number of decisions by this court where the question regarding the nature and scope of the guarantee implied in the equal protection clause of the Constitution came up for consideration and the general principles can be taken to be fairly well settled. What this clause aims at is to strike down hostile discrimination or oppression or inequality. As the guarantee applies to all persons similarly situated, it is certainly open to the legislature to classify persons and things to achieve particular legislative objects; but such selection or differentiation must not be arbitrary and should rest upon a rational basis, having regard to the object which the legislature has in view. It cannot be disputed that the legislation in the present case has singled out two individuals and one solitary transaction entered into between them and another private party, namely, the Bettiah Wards Estate and has declared the transaction to be a nullity on the ground that it is contrary to the provisions of law, although there has been no adjudication on this point by any judicial tribunal. It is not necessary for our present purpose to embark upon a discussion as to how far the doctrine of 'separation of powers has been recognised in our Constitution and whether the legislature can arrogate to itself the powers of the judiciary and proceed to decide disputes between private parties by making a declaration of the rights of one against the other. It is also unnecessary to attempt to specify the limits within which any legislation, dealing with private-rights, is possible within the purview of our Constitution. On one point our Constitution is clear and explicit, namely, that no law is valid which takes away or abridges the fundamental rights guaranteed under Part III of the Constitution. There can be no question, therefore, that if the legislation in the present case comes within the mischief of Article 14 of the Constitution, it has got to be declared invalid. This leads us to the question as to whether the impugned enactment is, in fact, discriminatory and if So, whether the discrimination made by it can be justified on any principle of reasonable classification ?"

15. He further relied upon a judgment of Supreme Court in the case of State of Jharkhand Vs. Jitendra Kumar Srivastava, reported AIR 2013 SC 3383, AIR 2013 (SCW) 4749. In the aforesaid case, two questions were formulated by the Supreme Court, namely-

(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the Proceeding.

(ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law."

16. After noting down the various contentions, raised by the parties, it is was held by the Supreme Court in paragraphs 14 & 15 that a person cannot be deprived of his pension without authority of law. It is further contended that the State cannot withhold pension or gratuity. Paragraph 14 & 15 of the aforesaid judgment is reproduced below:

14. Article 300 A of the Constitution of India reads as under:

"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300 A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold -

even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.

17. He further relied upon a judgment of Division Bench of this Court in the case of Gajraj Dohre Vs. State of U.P., reported in 2015 (4) ADJ 106. In the aforesaid case, the controversy before the Division Bench of this Court was regarding interest on the payment of gratuity. In that case, although the writ petitioner/ appellant was retired on 31.08.2007 but the gratuity was paid to him on 30.05.2014. It was held that the writ petitioner/appellant had been deprived of his gratuity for no fault of his. It is further held by the aforesaid Division Bench that the gratuity is not an act of bounty or charity but a rightful entitlement of an employee.

18. In paragraph 22 of the writ petition it is contended that one Rewa Anand, retired Peon of Sarvodya Mandir Inter College, Gahawatpur, Bawli, District Baghpat was paid his gratuity. In this regard, a government order dated 11.2.2015 was issued by the State Government but similar benefit has not been provided to the petitioner. It is further contended in paragraph 23 of the writ petition that another Class IV employee, namely, Mohd. Saieed, who filed a writ petition before this Court being Writ-A No. 3540 of 2016 (Mohd. Saied Vs. State of U.P and 5 others), the writ petition was disposed off with a direction to the District Basic Education Officer, Auraiya to pass an appropriate order in the matter, the District Basic Education Officer, Auraiya, vide its order dated 20.5.2017 released a sum of Rs. 4,48,800/- towards his gratuity. It is further contended in paragraph 25 that in similar circumstances, another Class IV employee, namely Ram Singh who was working in a recognized and aided Junior High School was released gratuity to the tune of Rs. 1,88,368/- by the Joint Director, Treasury and Pension, Kanpur Division, Kanpur, vide its order dated 19.8.2011. Apart from the same various other examples have been mentioned in the writ petition, stating therein that other similarly situated persons, like the petitioner have been paid their gratuity, but wholly illegally a discrimination has been made qua the petitioner.

19. A counter affidavit has been filed on behalf of the respondent nos. 1 & 4. It is stated in paragraph 7 of the counter affidavit that although vide government order dated 25.8.2005 approval was granted for extending the age of retirement of clerical employees Class-III working in the aided Junior High School from 58 to 60 years and accorded approval for payment of gratuity along with other post retiral benefit, but nothing has been mentioned in the aforesaid government order about Class IV employees working in those institutions, as such, the petitioner could not be paid his gratuity.

20. In response to the arguments raised by the counsel for the petitioner that in similar circumstances, the similarly situated Class IV employees were also paid their gratuity, it is contended by the learned Standing Counsel that vide government order dated 11.2.2015 approval was accorded for the payment of gratuity in favour of one Sri Reva Anand who retired from Sarvodya Mandir Inter College, Mahawatpur, Bawli, District Baghpat, but in the said government order, it is clearly contended that the order in question has been passed in compliance of the order passed by this Court and the same will not be treated as obiter dictum so far as other matters are concerned.

21. A counter affidavit was filed by Sri Rakesh Kumar Awasthi, Assistant Treasury & Pension, Kanpur Division, Kanpur, stating therein that since the petitioner was retired from the institution which is a recognized and aided Junior High School and since no government order whatsoever has been issued regarding payment of gratuity to Class IV employees working in such kind of institution, the gratuity could not be paid to the petitioner as well as other similarly situated Class IV employees.

22. The counsel for the respondents also relied upon a judgment of the Supreme Court in case of Ahmedabad Pvt. Primary Teachers Association Vs. Administrative Officer and others reported in 2004(1) SCC 755. He relied upon paragraphs 6 and 26 of the aforesaid judgment which are quoted below-

"6. The Act is is a piece of social welfare legislation and deals with the payment of gratuity which is a kind of retiral benefit like pension, provident fund etc. As has been explained in the concurring opinion of one of the learned judges of the High Court 'gratuity in its etymological sense is a gift, especially for services rendered, or return for favours received.' It has now been universally recognized that all persons in society need protection against loss of income due to unemployment arising out of incapacity to work due to invalidity, old age etc. For the wage earning population, security of income, when the worker becomes old or infirm, is of consequential importance. The provisions contained in the Act are in the nature of social security measures like employment insurance, provident fund and pension.The Act accepts, in principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments"

"26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide."

23. He further relied upon the judgment of the Supreme Court in Civil Appeal No.2530 of 2012 (Birla Institute of Technology Vs. The State of Jharkhand & Ors. decided on January 07, 2019. Paragraph 22 of the aforesaid judgment is quoted below-

"In case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No. 4 would be at liberty to take benefit of such Act/Scheme in accordance with law."

24. On behalf of respondent nos. 3 & 4 it was argued by Sri Vikram Bahadur Singh that unless and until there is a provision in the Statute the gratuity cannot be provided to the petitioner and other petitioners who have filed writ petitions which are listed along with present writ petition.

25. It is contended by Sri Amit Manohar, learned Additional Chief Standing Counsel that all earlier orders granting gratuity were passed from time to time by the authorities only in compliance of the orders passed by this Court, but the said benefit could not be provided to the petitioner as till date no Government Order has been issued in this regard.

26. From the perusal of the facts as narrated above, it is clear that following category of Class III and Class IV, i.e., non-teaching staff working in the educational institution in the State of U.P. are being paid their gratuity, namely-

(a) All Class III and Class IV employees of recognized and aided secondary Schools.

(b) All Class III and Class IV employees of the Junior High School run and controlled by the Basic Education Board.

27. It is unfortunate that only in respect of Class III employees working in a recognized and aided Junior High Schools are being paid their gratuity but the said benefit is not provided to Class IV employees of the same Institutions which is a clear discrimination made by the State Government qua Class IV employees working in the same Institutions.

28. Nature of the duties of Class IV employees either working in the recognized and aided Junior High School or a recognized and aided Secondary School or Junior High School, run and control by the Basic Education Board are identical in nature and as such all of them together constitute a Class within themselves but the respondents have deliberately made classification within a particular Class regarding which there is no reasonable basis or rational for the same.

29. From the perusal of the facts as narrated above, it is clear that in similarly situated Class IV employee either working in a recognized and aided Secondary School or Junior High School run and controlled by the Board of Basic Education are getting gratuity. Wholly illegally the said benefit was denied to the petitioner who is a Class IV employee in a recognized and aided Junior High School only the ground that the matter is pending consideration before the Mantrimandal and unless and until a government order is issued in this regard the gratuity could not be paid.

30. It is surprising that in various other matters, where orders were passed by this Court to decide the representation/claim regarding payment of gratuity, the gratuity was paid to the Class IV employees, but wholly illegally in the present case, the same has not been paid on the ground that in the earlier matter while passing the order it is clearly stated that the said order will not apply in other matters. Apart from the same, law in this connection is well settled as has been held by the Supreme Court that the respondents cannot create a class in a Class. The Hon'ble Supreme Court in the case of State of Jharkhand (supra) it was clearly stated in paragraph 14 that the State cannot take away a part of pension or gratuity or even leave encashment without any statutory provision.

31. In respect of payment of pension and gratuity, it was held by the Supreme Court in the case of State of Kerala and others vs. M. Padmanabhan Nair, 1985 1 SCC 429 that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement. Relevant para one of the aforesaid judgment is reproduced below:

"Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment"

The same principle was again reiterated by the Supreme Court in the case of D.D. Tewari (Dead) through legal representatives. Vs. Uttar Haryana Bijli Vitran Nigam Limited and others (2014) 8 SCC 894.

32. Article 14 of the Constitution of India incorporates concept of equality and equal protection of law. In large number of cases, the Supreme Court has held in great detail the ambit and scope of Article 14 of the Constitution of India. The Supreme Court in paragraph five of the case Budhan Choudhary Vs. State of Bihar, AIR 1955 SC 191 following observations have been made:-

"5. ... It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure."

33. In the case of Ram Krishna Dalmia Vs. S.R. Tendolkar AIR 1958 SC 538, the Constitution Bench of five Judges further culled out the following principles enunciated in the above cases -

"(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."

34. In the case of Nagpur Improvement Trust Vs. Vithal Rao, (1973) 1 SCC 500, the five-Judge Constitution Bench had an occasion to consider the test of reasonableness under Article 14 of the Constitution. It noted that:

"26. ... the State can make a reasonable classification for the purpose of legislation and that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question."

35. The Supreme Court in the case of Subramanian Swamy Vs. Director, Central Bureau of Investigation and another reported in (2014) 8 SCC 682 was again dealt with the provisions of Article 14 of the Constitution of India. It was held that Article 14 of the Constitution declares equality of rights to all persons within the territory of India and enjoins equal protection of law to all persons in enjoyment of their rights and liberty without discrimination or favourtisim. In this regard, relevant paragraphs 38 and 58 are reproduced below:-

Principles applicable to Article 14

38. Article 14 reads:

"14. Equality before law.--The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.

58. The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.

36. In the order passed by the respondents which is under challenged in the present writ petition, there is no denial for the payment of gratuity to the petitioner but only objection has been taken by the respondents that the matter is still pending consideration before the Mantrimandal and in the absence of the Government order, the benefit cannot be provided to the petitioner. The aforesaid order was passed by the respondents on 23.10.2017, more than one and half years had already expired but till date no decision has been taken by the State Government. In this regard, in the present writ petition also various opportunities were given to the learned Standing Counsel to bring on record the decision taken by the State Government but nothing has been brought on record in the matter.

37. In the facts and circumstances of the case, the order dated 23.10.2017 passed by the respondent No.2 (Annexure 6 to the writ petition) is liable to be set aside. The same is hereby set aside and the respondents are directed to pass appropriate orders in accordance with law specially in view of the observations made hereinabove within a period of four months. It is made clear that if it is found that the petitioner is entitled for the gratuity, the same should be paid to him within a period of two months from the date of the order issued by the authorities in this regard.

38. Apart from the same, it appears that for the non-payment of gratuity to the Class IV employees, large number of writ petitions had been filed before this Court from time to time. In some of the writ petitions, orders were passed and the gratuity was released but unless and until there is an order of this Court, the respondents are not releasing the gratuity to the Class IV employees working in a recognized and aided Junior High School. For the purpose of gratuity, only retired persons are approaching this Court, in the circumstances this Court thinks it proper to issue a Mandamus to the State Government to issue a Government order for the payment of gratuity to Class IV employees working in a recognized and aided Junior High Schools through out the State in order to reduce the litigation before this Court. The aforesaid exercise be completed within a period of four months from the date of presentation of certified copy of this order.

39. With the aforesaid observations, the writ petition is allowed. No order as to costs.

Order Date:-3.5.2019

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