Allahabad High Court
Smt. Sarvesh Kumari vs State Of U.P. And 3 Others on 14 May, 2019
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- WRIT - A No. - 7416 of 2019
Petitioner :- Smt. Sarvesh Kumari
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Mukesh Kumar Kushwaha,Mahima Maurya Kushwaha
Counsel for Respondent :- C.S.C.
Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the petitioner and learned standing counsel for the State respondents. With their consent, the instant petition is being disposed of finally without inviting a formal counter affidavit.
The petitioner is widow of Late Harpal Singh, who died in an accident on 27.2.2016 while in harness as Physical Training Inspector in A.K.K. Inter College, Amroha, a recognised institution under the U.P. Intermediate Education Act, 1921 and to which provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are also applicable. The husband of the petitioner died after putting in about 16 years of service. The petitioner filed an application for grant of death-cum-retirement gratuity consequent to death of her husband, but the same has been declined by impugned order dated 11.2.2019 passed by the third respondent on the sole ground that the petitioner's husband had not filled the option form in respect of his age of retirement, therefore, it shall be presumed that he wanted to continue in service until the age of 62 years instead of 60 years.
An employee becomes entitled to death-cum-retirement gratuity if he opt to retire at the prescribed age of superannuation and foregoes the benefit of extension of service of two years under various government orders issued from time to time. The relevant rule governing the grant of death-cum-retirement gratuity, as quoted in the impugned order, is as follows :-
Þvuqrksf"kd dk ykHk mUgha f'k{[email protected]'k{k.ksRrj deZpkfj;ksa dks feysxk] ftUgksaus 60 o"kZ dh vk;q ij lsokfuo`fRr gksus dk fodYi fn;k gSA 60 o"kZ dh vk;q ij lsokfuo`Rr gksus dk fodYi nsus okys ,sls v/;kid tks 20 o"kZ dh vgZdkjh lsok iw.kZ dj ysus vFkok 45 o"kZ dh vk;q izkIr dj ysus ds i'pkr LosPNk ls lsokfuo`Rr gksuk pkgs] mUgsa Hkh vuqrksf"kd dh lqfo/kk izkIr gSAß"
Learned counsel for the petitioner submitted that the government order dated 17.2.1999 permits exercise of option for retirement at the prescribed age of superannuation (58 years at the relevant time) by 30th June of the academic year in which the retirement is due. By government order dated 4.2.2004, while extending the age of retirement from 60 to 62 years, the consequences which had to follow under previous government orders, consequent to retirement at the age of 58 years or extended service of 60 years, have been kept intact. Meaning thereby, that those teachers, who are due to retire at the age of 60 years after coming into force of Government Order dated 4.2.2004, could exercise their option for retirement by 1st July of the year in which they would attain the age of 60 years. The submission is that since the date of birth of the petitioner's husband was 1.1.1960 and he was due to retire on 31.12.2019, therefore, he had time to exercise his option upto 1st July of the year in which his retirement was due i.e. 1st July, 2019. It is further submitted that even under previous Government Order dated 17.2.1999, in case age of retirement is treated to be 58 years, he had option to exercise his choice until 1st July, 2017. Since, however, he died on 27.2.2016, much before the occasion arose for exercising the option, therefore, it could not be deemed that he had chosen to continue in service beyond the age of 58 years (60 years after the Government Order dated 4.2.2004 was enforced).
On the other hand, learned standing counsel submitted that since the option was not exercised, therefore, the respondents rightly presumed that the petitioner's husband wanted to continue in service and have rightly rejected the claim for death-cum-retirement gratuity.
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.
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.
Learned counsel for the petitioner has placed reliance on another decision of a learned Single Judge in Writ-A No.46835 of 2015 Smt. Munni Vs. State of U.P. and 2 others, wherein also in identical facts and circumstances this Court has upheld the claim for payment of death-cum-retirement gratuity to the widow. Learned counsel for the petitioner has also placed reliance on one more judgement of a learned Single Judge dated 4.1.2018 in Writ-A No.40568 of 2016 Noor Jahan Vs. State of U.P. and 4 others taking the same view.
Learned standing counsel is not in a position to dispute the above legal position.
In view of the above, this Court is of the considered opinion that the impugned decision is manifestly illegal and is accordingly quashed. The writ petition is allowed. The third respondent is directed to forthwith proceed to calculate the amount of death-cum-retirement gratuity payable to the petitioner and pay the same to her within a period of six weeks from today alongwith 8% per annum simple interest till the date of actual payment.
Order Date :- 14.5.2019
SL
(Manoj Kumar Gupta, J)
